procedure: Merits: obligation to arbitrate

title: Judgment of 19 May 1953

text: I N T E R N A T I O N A L COURT O F JUSTICE

text: 3Iay 1 9 t h ;eneral List l Y E A R 1953

text: NO. 15

text: May 19th 1953

text: AMBATIELOS CASE

text: (GREECE v. U N I T E D KINGDOM)

text: M E R I T S : OBLIGATIOK T O ARBITRATE

text: Question of obligation lo accept arbitration.-Declaration of J u l y 16th, 1~26.-Judginent of the Court of J u l y ~ s t , 1952.-Relation between the Declaration of 1926 and the Treaty of ~Vouember ~ o t h , 1886.- Respcctice jurisdictions of the Court and of a Commission of Avbiiraiion.-Merits of c l a i m w i t h i n exclusive competence of C o m m i s s i o n

text: of Arbitraiion.-Expression "based on" Treaty means depending

text: for support o n Treaty ; Commission of Arbitration to deczde whe!her claim i s actually supportable under Treaty.-Most-favoured-nation clause.-"Free access to the Courts of Justice".-Existence of d i f ferencc zk'ithin meaning of Declaration of 1926.- Non-exhaustion of local remedies.-Delay i n Presentation of case to Court.

text: JUDGMENT

text: Present : Vice-Yresident GUERRERO, Acting President ; President Sir Arnold MCNAIR ; Judges ALVAREZ, BASDEVANT, HACKWORTH, WINIARSKI, KLAESTAD, BADAWI, READ, Hsu MO, LEVI CARNEIRO, Sir Benegal RAU, ARMAND- UGON ; M. SPIROPOULOS, J z ~ d g e ad hoc ; Registrar HAMBRO.

text: In the Ambatielos case,

text: between

text: the Kingdom of Greece, represented by : M. N. G. Lély, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of the Hellenes in the Netherlands, as Agent, a ssisted by : M. E. Verghis, Chargé d'affaires ad interim of Greece in the Netherlands, as Assistant Agent, and by : M. Henri Rolin, Professor of International Law a t Brussels University, former President of the Belgian Senate, the Right Honourable Sir Frank Soskice, Q.C., M.P., former Attorney-General of the United Kingdom, Mr. C. J. Colombos, Q.C., LL.IX, Member of the English Bar, as Counsel,

text: and

text: the United Kingdom of Great Bntain and Northern Ireland, represented by : Mr. W. V. J. Evans, Assistant Legal Adviser, Foreign Office,

text: as Agent, assisted by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser to the Foreign Office, as Assistant Agent and Counsel, and by : Mr. J. E . S. Fawcett, D.S.C., Member of the English Bar, Mr. D. H. N. Johnson, Assistant Legal Adviser, Foreign Office,

text: as Counsel, composed as above, delivers the following Judgment .

text: By its Judgment of July ~ s t , 1952, the Court, adjudicating upon the Preliminary Objection raised by the Government of the United Kingdom of Great Britain and Northern Ireland to the Application of the Royal Hellenic Government, found that it had jurisdiction to decide whether the IJnited Kingdom was under an obligation to submit to arbitration, in accordance with the Declaration annexed to the Treaty of Commerce and Navigation of July 16th, 1926, between Great Britain and Greece, the difference as to the validity of the Ambatielos claim, in so far aç that claim was based on the Treaty of Commerce and Navigation of November ~ o t h , 1886, between the same contracting parties. The Court, in its Judgment, reserved the fixing of time-limits for the filing of a Reply by the Hellenic Government and a Rejoinder by the United Kingdom Government for a subsequent Order. This Order was made on July 18th, 1952. The Reply and Rejoinder were filed within the prescribed time-limits, namely, October 3rd; 1952, and January 6th, 1953, and on the latter date the issue defined by the Court in its Judgment of July ~ s t , 1952, was ready for hearing. The Court, which was presided over by the Vice-President, in accordance with Article 13, paragraph 1, of the Rules, and which included on the Bench Professor Jean Spiropoulos, appointed by the Hellenic Government to sit as judge ad hoc, held public sittings on March 23rd, 24th, 25th, 26th, 27th, 28th and 3oth, 1953, a t which it heard, on behalf of the Hellenic Government, M. Henri Rolin and Sir Frank Soskice, Counsel, and on behalf of the United Kingdom Government, Mr. G. G. Fitzmaurice, Assistant Agent and Counsel, Mr. J . E. S. Fawcett, Counsel, and Mr. W. V. J. Evans, Agent. The Hellenic Government presented the following Submissions in the Reply :

text: "May it please the Court : I. To hold that the Ambatielos claim, based upon the provisions of the Treaty of 1886, does not prima facie appear to be unconnected with those provisions. 2. As a consequence, to decide that the United Kingdom is under an obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos elaim. 3. To declare that the Court will assume the functions of the arbitral tribunal in this case in the event of the Parties accepting its jurisdiction in their final submissions.

text: 4. To fix time-limits for the filing by the Parties of the Reply and Rejoinder upon the ments of the dispute."

text: The Government of the United Kingdom presented the following Submission in the Rejoinder :

text: "The United Kingdom Govemment accordingly submits that the-Court should hold and declare that the United Kingdom is not under any obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference between the Parties as to the validity of the Ambatielos claim."

text: During t h e hearings, t h e Hellenic Government confirmed t h e Submissions contained in the Reply, and the Government of t h e United Kingdom formulated the following Submissions : "

text: That the United Kingdom Govemment is under no obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, unless this claim is based on the Treaty of 1886.

text: That the Hellenic Govemment's contention that the Ambatielos claim is based on the Treaty of 1886, within the meaning of the Declaration of 1926, because it is a claim formulated on the basis of the Treaty of 1886 and not obviously unrelated to that Treaty, is ill-founded.

text: That, even if the above. Hellenic contention be correct in law, the Court should still not order arbitration in respect of the Ambatielos claim, because the Ambatielos claim is in fact obviously unrelated to the Treaty of 1886.

text: That the Ambatielos claim is not a claim based on the Treaty of 1886, unless it is a claim the substantive foundation of which lies in the Treaty of 1886.

text: That, having regard to (4) above, the Ambatielos claim is not a claim the substantive foundation of which lies in the Treaty of 1886, for one or other or al1 of the following reasons :

text: (a) the Ambatielos claim does not come within the scope of the Treaty ; (b) even if all the facts alleged by the Hellenic Government were true, no violation of the Treaty would have occurred ; (c) local remedies were not exhausted ; (d) the Ambatielos claim-in so far as it has any validity a t all, which the United Kingdom Govemment denies-is based on the general pnnciples of international law and these principles are not incorporated in the Treaty of 1886.

text: That if, contrary to (4) and (5) above, the Ambatielos claim be held t o be based on the Treaty of 1886, the United Kingdom Government is not obliged to submit to arbitration the difference as to the validity of the claim for one or other or al1 of the following reasons :

text: (a) non-exhaustion of local remedies ; (b) undue delay in preferring the claim on its present aUeged basis ; ( c ) undue delay and abuse of the process of the Court in that, although reference of the dispute to the compulsory junsdiction of the Court has been continuously possible since the 10th December 1926, no such reference took place until the 9th Apnl 1951. Accordingly, the United Kingdom Government prays the Court To adjudge and declare That the United Kingdom Government is not obliged to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim." On April gth, 1951, the Hellenic Government, in instituting proceedings against the United Kingdom of Great Bntain and Northern Ireland with regard t o a claim on behalf of Mr. Ambatielos, asked the Court t o adjudge and declare : "that the arbitral procedure referred t o in the Final Protocol of the Treaty of 1886 must receive application in the present case". I n the subsequent proceedings the Hellenic Government requested the Court itself t o adjudicate upon the validity of the Ambatielos claim. I3y its Judgment of July rst, 1952, the Court held t h a t i t had no jurisdiction to aecide on the merits of the Ambatielos claim. Tt found a t the same time t h a t i t had junsdiction t o decide whether the United Kingdom is under a n obligation t o submit t o arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, in so far as this claim is based on the Treaty of 1886. The question now before the Court is whether the United Kingdom Government is under a n obligation t o accept arbitration of the difference between that Government and the Hellenic Government concerning the validity of the Ambatielos claim as presented by the Hellenic Govemment, in so far as this claim is based on the Treaty of 1886. This case, quite unlike the case of the Mavrommatis Palestine

text: Concessions, decided by the Permanent Court of International

text: Justice in 1924, derives its distinctive character from the fact t h a t the Court is called upon t o decide, not its own jurisdiction over any particular dispute, but whether a dispute should be referred t o another tribunal for arbitration. Both Greece and the United Kingdom have rested their case on the D e c l a r a t h of 1926 and the Judgment of the Court of July I S ~ , 1952. The Declaration of 1926 reads a s follows : "It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of pnvate persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886, and that 8 any differences which may arise between Our two Governments as to the validity of such claims shall, at the request of either Govemment, 'be referred to arbitration in accordance with the provisions of the Protocol of November ~ o t h , 1886, annexed to the said Treaty." The Protocol of 1886 referred t o in the Declaration of 1926 contains, inter alia, the following provision : "Any controversies which may arise respecting the interpretation or the execution of the present Treaty, or the consequences of any violation thereof, shall be submitted, when the means of settling them directly by amicable agreement are exhausted, to the decision of Commissions of Arbitration, and the result of such arbitration shall be binding upon both Governments."

text: The Declaration of 1926 was agreed upon for the purpose of safeguarding the interests of the Parties with respect t o claims on behalf of private persons based on the Treaty of 1886, for which, on the termination of t h a t Treaty, a n d with i t the Protocol, there would have been no remedy in the event of the failure of the two Governments t o arrive a t amicable settlements by direct means. While the controversies for which arbitration was provided in the Protocol were relatively more general in scope, those provided for in the Declaration are limited to claims on behalf of private perçons based on the Treaty of 1886. But in both cases the Parties were prompted b y the same motives a n d adopted the same method of arbitration. The operative part of the Court's Judgment of July ~ s t , 1952. is in the following terms : "that it [the Court] is without jurisdiction to decide on the merits of the Ambatielos claim ; that it h a jurisdiction to decide whether the United Kingdom is under an obligation to submit to,arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, in so far as this claim is based on the Treaty of 1886". B y t h a t decision, the Court laid down two rulings. The first, negative in character, was t h a t the merits of the Ambatielos claim are outside the jurisdiction of the Court. The second ruling, positive in character, assigned t o t h e Court a limited jurisdiction in the Ambatielos case, namely, t o decide whether the United Kingdom is obliged t o accept arbitration, a s requested b y Greece. This limited jurisdiction of the Court is t o be clearly distinguished from the jurisdiction of the Commission of Arbitration. I n order t o remove any possible doubt a s t o the respective spheres of action of the Court and of the Commission of Arbitration, the Court stated in its Judgment : "The Court would decide whether there is a difference between the Parties within the meaning of the Declaration of 1926. Should 9 the Court find that there is such a difference, the Commission of Arbitration would decide on the merits of the difference."

text: The Court must refrain from pronouncing final judgment upon any question of fact or law falling within "the merits of the difference" or "the validity of the claim". If the Court were to undertake to decide such questions, it would encroach upon the jurisdiction of the Commission of Arbitration. The task of the Court will have been completed when it has decided whether the difference between Greece and the United Kingdom with regard to the validity of the Ambatielos claim is or is not a difference as to the validity of a claim on behalf of a private person based on the provisions of the Treaty of 1886 and whether, in consequence, there is an obligation binding the cnited I<ingdom to accept arbitration. The words "in so far as this claim is bared on the Treaty of 1886", used in the operative part of the Court's Judgment of July ~ s t , 1952, must be understood in the sense in which they w-ere used. They are intended to indicate the character which the Ambatielos claim must possess in order that it may be the subject of arbitration in accordance with the Declaration of 1926. They do not mean that the Ambatielos claim must be found by the Court to be validly based on the Treaty of 1886. If such a meaninç had been intended by the Court, it would not have decided that it was without jurisdiction to pass on the merits of the claim. The question whether there is a difference within the meaning of the Declaration of 1926 depends upon whether the claim as formulated by the Hellenic Government contains the elements required for arbitration as agreed upon by the Parties in that Declaration. The Hellenic Government states in its first submission that the Ambatielos claim does not prima facie appear to be unconnected with the provisions of the Treaty of 1886. The Court understands that this submissicn is intended as a reason for the principal submission of the Hellenic Govemment that the United Kingdom is under an obligation to accept arbitration. But the Court considers that the reason stated in such a negative form is not sufficient. The United Kingdom Govemment, on its part, contends that the Ambatielos claim is not a claim the substantive foundation of which lies in the Treaty of 1886. I t maintains that, before the Court can decide upon arbitration, it is necessary to determine, by way of interpreting the Declaration of 1926 and as a substantive issue, whether the claim is actually or genuinely based on the Treaty of 1886, in the sense that the facts alleged by the Hellenic Government, if true, would constitute a violation of that Treaty.

text: The Court cannot accept this contention. It woiild necessarily lead to passing on a point which constitutes one of the principal elements of the Ambatielos claim and consequently to the substitution of the Court for the Commission of Arbitration. The Court cannot substitute itself for the Commission of Arbitration. The question of violation or non-violation of the Treaty of 1886 goes to the very roots of the Ambatielos claim. To decide whether the facts alleged by the Hellenic Government, if true, would constitute an actual violation of the Treaty of 1886 would be to pass upon "the validity of the claim" and "the merits of the difference", which are reserved exclusively for the Commission of Arbitration, and concerning which this Court, according to its own earlier Judgment, is without jurisdiction. I t cannot he assumed that the Declaration of 1926 contemplates that the verification of the allegations of fact of the Hellenic Government shoiild be the duty of the Commission of Arbitration, while the determination of the question whether the facts alleged constitute a violation of the Treaty of 1886 should form the task of another tribunal. Such a division of functions would imply a division of the merits of the claim, which is authorized neither by the Declaration nor by the previous Judgment of this Court. The Declaration of 1926 Ras, as previously stated, agreed upon to ensure that the method of arbitration provided for in the Protocol of 1886 should be employed for the settlement of a limited category of differences concerning the Treaty of 1886, namely, differences as to the validity of claims on behalf of private persons based on that Treaty. At the time of the'signature of the Declaration, it could hardly have entered the minds of the Parties that before arbitration should he in order; the Party requested to accept that procedure might insist that the question whether a claim was genuinely based on the Treaty of 1886 should first be examined and definitively settled by that Party itself or by an organ other than the Commission of Arbitration. Tt must have been their intention that the genuineness of the treaty hasis of any claim, if contested, should be authoritatively decided by the Commission of Arbitration, together with any other questions relating to the merits of the claim, just as, before 1926, any question as to whether a certain controversy was concerned with the interpretation or execution of the Treaty of 1886 would have been settled by such a commission. If the Ambatielos claim had been referred to arbitration, it would have been for the Commission to decide whether the claim had a legal basis in respect of the Treaty of 1886. In the absence of any manifestation of a common intention of the Parties to the contrary, the Commission of Arbitration cannot be deprived of a part of its competence and no other body can be invested with the authority to determine definitively the validity of the treaty basis of the Ambatielos claim. For the purpose of determining the obligation of the United

text: meaning claims actually supportable under that Treaty. I n the eontext in which the words occur, they can only mean claims depending for support on the provisions of the Treaty of 1886, so that the claims will eventually stand or fall according as the provisions of the Treaty are construed in one way or another. The fact that a claim purporting to be based on the Treaty may eventually be found by the Commission of Arbitration to be unsupportable under the Treaty, does not of itself remove the claim from the category of claims which, for the purpose of arbitration, should be regarded as falling within the terms of the Declaration of 1926.

text: In order to decide, in these proceedings, that the Hellenic Government's claim on behalf of Mr. Ambatielos is "based on" the Treaty of 1886 within the meaning of the Declarafion of 1926, it is not necessary for the Court to find-and indeed the Court is without jurisdiction to do so-that the Hellenic Govemment's interpretation of the Treaty is the correct one. The Court must determine, however, whether the arguments advanced by the Helenic Govemment 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 the Treaty. I t is not enough for the claimant Govemment to establish a remote connection between the facts of the claim and the Treaty of 1886. On the other hand, it is not necessary for that Govemment to show, for present purposes, that an alleged treaty violation has an unassailable legal basis. The validity of the arguments presented by the Hellenic Govemment, as well as the validity of those presented by the United Kingdom Government, would be deterniined by the Commission of Arbitration in passing upon the merits of the difference. If the interpretation given by the Hellenic Govemment to any of the provisions relied upon appears to be one of the possible interpretations that may be placed upon it, though not necessarily the correct one, then the Ambatielos claim must be considered, for the purposes of the present proceedings, to be a claim based on the Treaty of 1886.

text: In other words, if it is made to appear that the Hellenic Govemment is relying upon an arguable construction of the Treaty, that is to say, a construction which can be defended, whether or not it ultimately prevails, then there are reasonable pounds for concluding that its claim is based on the Treaty. This view seems to have been in the mind of Counsel for the United Kingdom when he said:

text: whether the claim is valid or not, that is to say, well-founded on

text: We do not suggest that the Court must consider whether the claim is 'bien fondée', but what we say is that it must at least consider

text: The Court \vil1 use its power of appreciation t o resolve the legal problem presented b y the Parties, namely, whether the difference between them is of such a character a s t o come under the Declaration of 1926 ; but i t cannot carry its power of appreciation t o the extent of deciding the merits of the difference. I n the opinion of the Court, this course of action would be in consonance with the intention of the Parties that al1 differences which might arise concerning the validity of clain~s on behalf of private perçons based on the Anglo-Greek Commercial Treaty of 1886 should be referred t o arbitra tion. The Court is not departing from the principle, which is wellestablished in international law a n d accepted b y its own jurisprudence as well as t h a t of the Permanent Court of International Justice, t o the effect t h a t a State may not be compelled t o submit its disputes t o arbitration without its consent ; but i t observes that, in this case, the question is whether t h e consent given by the Parties in signing the Declaration of 1926 t o arbitrate a certain category of disputes, does or does not extend to the Ambatielos claim.

text: The articles of the Treaty of 1886 invoked b y the Hellenic Government are a s follows :

text: "Article I

text: There shall be between the dominions and possessions of the two High Contracting Parties reciprocal freedom of commerce and navigation. The subjects of each of the two Parties shall have liberty freely to come, with their ships and cargoeç, to ail places, ports and rivers in the dominions and possessions of the other to which native subjects generally are or may be permitted to come, and shall enjoy respectively the sariie rights, privileges, liberties, favours, immunities and exemptions in matters of commerce and navigation which are or may be enjoyed by native subjects without having to pay any tax or impost greater than those paid by the same, and they shall be subject to the laws and regulations in force.

text: Article X

text: The Contracting Parties agree that, in al1 matters relating to commerce and navigation, any privi'tege, favour or immunity whatever which either Contracting Party has actually granted or may hereafter g a n t to the subjects or citizens of any other State shall be extended imrnediateIy and unconditionally to the subjects or citizens of the other Contracting Party ; it being their intention that the trade and navigation of each country shall be placed, in ail respects, by the other on the footing of the most favoured nation.

text: Article X I I

text: The subjects of each of the Contracting Parties who shall conform themselves to the laws of the country : I. Shall have full liberty, with their families, to enter, travel, or reside in any part of the dominions and possessions of the other Contracting Party. 2. They shail be permitted to hire or possess the houses, manufactories, warehouses, shops, and premises . which may be necessary for them. 3. They may carry on their commerce either in person or by any agents whom they may think fit to employ. 4. They shall not be subject in respect of their persons or property, or in respect of pasjports, nar in respect of -their commerce or industry, to any taxes, whether general or local, or to imposts or obligations of any kind whatever other or greater than those which are or may be imposed upon native subjects.

text: Article XV

text: The dwellings, manufactories, warehouses and shops of the subjects of each of the Contracting Parties in the dominions and possessions of the other, and al1 premises appertaining thereto destined for purposes of residence or commerce shall be respected. I t shall not be allowable to proceed to make a search of, or a domiciliary visit to, such dwellings and premises, or to examine and inspect books, papers, or accounts, except under the conditions and with the form prescribed by the laws for subjects of the country. The subjects of each of the two Contracting Parties in the dominions and possessions of the other shall have free access to the Courts of Justice for the prosecution and defence of their rights, without other conditions, restrictions, or taxes beyond those imposed on native subjects, and shall, like them, be at liberty to employ, in al1 causes, their advocates, attorneys or agents, from among the persons admitted to the exercise of those professions according to the laws of the country."

text: The Hellenic Government, relying upon the most-favoiirednation clause contained in Article X, invokes Article 16 of the Treaty of Peace and Commerce between the United Kingdom and Denmark of February 13th, 1660-1661, which the Hellenic Government has quoted in English as follows : "Each Party shall in al1 causes and controversies now depending, or hereafter to commence, cause justice and right to be speedily administered to the subjects and people of the other Party, according to the laws and statutes of each country without tedious and unnecessary delays and charges."

text: The Hellenic Government has invoked similar provisions of other treaties concluded between the United Kingdom a n d third States, that is t o say :

text: -Article 24 of the Treaty of Peace and Commerce with Denmark of July th, 1670, providing that the Parties "shall cause justice and equity to be administered to the subjects and people of each other" ; -Article 8 of the Treaties of Peace and Commerce with Sweden of April th, 1654, and of October a ~ s t , 1661, providing that

text: act on their behalf before any Court of Judicature for the recovery of their debts, or for other lawful occasions, shall stand in need of the filagistrate's help, the same shall be readily, and according to the

text: -Articl'e IO of the Treaty of Commerce with Bolivia, of August rst, 1911, reserving the right to exercise diplomatic intervention in any case in which there may be evidence of "denial of justice" or "violation of the principles of international law".

text: The United Kingdom Government, in the first place, questions the correctness of the English translations from the original Latin of certain of these provisions ; and in the second place, it contends that Article X of the Treaty of 1886, dealing with matters of commerce and navigation, cannot be invoked to claim the benefits of provisions in other treaties concerning judicial proceedings, which, in the Treaty of 1886, form the subject of a separate article. The United Kingdom also advances a number of other arguments designed to show that the facts alleged by the Hellenic Government, if tme, would amount to a denial of justice, and that an allegation of denial of justice must be based on general principles of international law and cannot be premised on Article X of the Treaty of 1886 dealing with commerce and navigation.

text: On the other hand, the Hellenic Government has contended that a litigation arising out of a commercial contract may be considered as a matter relating to commerce and thus falling within the term "al1 matters relating to commerce and navigation" to which the most-favoured-nation clause in Article X of the Treaty of 1886 applies. The undertaking by the United Kingdom vis-à-vis third States that the coiirts shall administer "justice and right" or "justice and equity" in an? litigation is regarded by the Hellenic Government as a "favour" which inures t o the benefit of Greek nationals under the most-favoured-nation clause of Article X.

text: With regard to the Anglo-Bolivian Treaty of 1911, the Hellenic Government argues that it imposes upon the United Kingdom, as well as upon Bolivia, the obligation to apply the principles of international law in the treatment of the national~ of the other contracting party.

text: Article XV, paragraph 3, of the Treaty of 1886 provides for "free access to the Courts of Justice". The Cnited Kingdom Government insists on a limited interpretation of the term "free access" and maintains that Mr. Ambatielos must be considered as having been fully accorded this right when he was permitted to appear in the English courts for the prosecution and defence of his rights on an equal footing with British subjects. The Hellenic Government, on the other hand, relies on a different inferpretation of the term "free access" to the Courts of Justice and argues that the right of "free access" should be understood to include the prosecution of rights by the foreign litigant in the local courts free from restrictions imposed by the executive authorities. According to the contention of the Hellenic Government, Mr. Ambatielos did not enjoy "free access" to the courts, because of the "withholding" by the executive branch of the United Kingdom Government of evidence considered to be vital to his case. Having regard to the contentions of the Parties with respect t o the scope and effect of the most-favoured-nation clause in Article X of the Treaty of. 1886, as well as the divergence of views concerning the meaning of the expression "free access to the Courts of Justice" contained in Article XV, paragraph 3, of that Treaty ; and bearing in mind especially the interpretations of these provisions contended for by the Hellenic Government, the Court must conclude that this is a case in which the Hellenic Government is presenting a claim on behalf of a private person "based on the provisions of the Anglo-Gréek Commercial Treaty of 1886", and that the difference between the Parties is the kind of difference which, according to the Declaration of 1926, should be submitted to arbitration.

text: Accordingly, the Court must hold that the Lnited Kingdom is under an obligation to CO-operate with Greece in constituting a Conlmission of Arbitratian, in accordance tvith the Protocol of 1886, as provided in the Declaration of 1926.

text: There remain for consideration contentions advanced by the United Kingdom Government that, even assuming the facts alleged by the Hellenic Government to be tnie, the United Kingdom still is not obliged to submit to arbitration the difference as to the validity of the Ambatielos claim, for the following additional reasons :

text: (1) That Mr. Ambatielos did not exhaust local remedies ; (2) That there was undue delay in preferring the claim on its present alleged basis ;

text: (3) That there were undue delay and abuse of the process of the

text: Court in that, although .reference of the dispute t o the

text: 16 compulsory jurisdiction of the Court has been continuously possible since the 10th December 1926, no such reference took place until the 9th April 1951. With regard to the first two arguments, the Court need only observe that they are arguments in defence directed t o the admiçsibility of the Ambatielos claim and are not in any way related t o the question whether the claim is based on the Treaty of 1886. The points raised in these arguments are entirely outside the terms of the Declaration of 1926, which it is the Court's present task to interpret. For these reasons, the Court expresses no view concerning the validity or the legal effect of these arguments.

text: These considerations also apply to the point of delay contained in the third argument. As regards the point of abuse of the process of the Court raised in that argument, the Court does not consider that the Hellenic Government did anything improper in instituting proceedings against the United Kingdom on April gth, 1951, in conformity with the relevant provisions of the Statute and Rules of Court .

text: The Court does not consider it necessary to pass on Submissions 3

text: and 4 of the Hellenic Government.

text: For these reasons,

text: by ten votes to four,

text: finds that the United Kingdoni is under an obligation t o submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity, under the Treaty of 1886, of the Ambatielos claim.

text: Done in English and French, the English text being authoritative, a t the Peace Palace, The Hague, this nineteenth day of May, one thousand nine hundred and fifty-three, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Royal Hellenic Government and to the Government of the United Kingdom of Great Britain and Northern Ireland, respectively.

text: (Signed) J . G. GUERRERO,

text: Vice-President .

text: (Signed) E. HAMBRO,

text: Registrar.

text: Sir Arnold M C S A I R , President, Judges BAÇDEVAST, KLAESTAD and READ, availing themselves of the right conferred on them by .Article j 7 of the Statute, append to the Judgment the joint statement of their dissent ing opinion.

text: ( I n i t i a l l e d ) J. G. G.

text: (Initialled) E. H .

title: Ambatielos (Greece v. United Kingdom)

type: avgorande


court: icj

doctype: dom

caseName: Anglo-Iranian Oil Co. (United Kingdom v. Iran)

decisionType: judgment

procedure: Preliminary Objection

publisher: International Court of Justice

title: Judgment of 22 July 1952

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: 1952 July 22nd General List: YEAR 1952 No: 16

type: stycke

text: July 22nd, 1952

text: ANGLO-IRANIAN OIL Co. CASE

text: . (UNITED KINGDOM 'Z'. IRAN)

text: PRELIMINARY OBJECTION

text: Interpretation of tile lrauiaiZ Declaration of acceptance of the Cllurt's compulsory jurisdiction: words to which the. cxpressiou "posterieurs a Ia ratification de cette declaration" refer.-Declaration limited to the application of treaties or conventions acceptPd by Iran after ratification of the Declaration.-.Vlost-favoured-'llatio·n clause contained in a lrraty earlier -in date than the ratification of the Declaratio11: impossibility of jou11ding there1tPon a claim to i-nvoke subsequmt treaties for the purpose of establishi11g the Court's jurisdiction.- Treaties and conventions.- .Vaturc of the Concessio~z Contract of I933.-Questi01z whether any agreement between the Parties resulted from the action taken by the Council of the League of Nations.-hzapplicability of the principle of forum prorogatum.

text: JUUGl\IENT

text: Present: Vice-Presidmt GuERRERO, Acting President,· President

text: Sir Arnold McNAIR; judges ALVAREZ, BASDEVANT, HACKWORTH, WINIARSKI, ZORICI(~, KLAESTAD, BADAWI PASHA, READ, Hsu Mo. LEvi CARNEIRo, ARMAND-

text: UGoN; M. Karim SANDJABI, judge ad hoc; Registrar

text: HAM BRO.

text: 94 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)

text: In the Anglo-Iranian Oil Company case,

text: between

text: the l.Jnited Kingdom of Great Britain and Northern Ireland, represented by : Sir Eric Beckett, K.C.M.G., Q.C., Legal Adviser of the Foreign Office, as Agent, assisted by : Sir Lionel Heald, Q.C., M.P., Attorney-General, Professor C. H. M. Waldock, C.M.G., O.B.E., Q.C., Chichele Professor of International Law in the l:niversity of Oxford, Mr. H. A. P. Fisher, Member of the English Bar, ~f!". D. H. !'J. J t:>hnc:nn. Ac:c:ic:t~nt f.r-g:~l Anviser of the Foreign Office, as Counsel, and by: Mr. A. D. M. Ross, Eastern Department, Foreign Office, Mr. A. K. Rothnie, Eastern Department, Foreign Office,

text: as Expert Advisers ;

text: a"d

text: the Imperial Government of Iran, represented by : M. Hosscin Navab, Envoy Extraordinary and Minister Plenipotentiary of Iran to the Netherlands, as Agent, and Dr. Mossadegh, Prime Minister, assisted by : M. Nasrollah Entezam, Ambassador, former Minister, and by: M. Henri Rolin, Professor of International Law at Brussels University, former President of the Belgian Senate, as Advocate,

text: 95 JUDGMENT OF 22 \'II 52 (ANGLO-IRt\NIAN OIL Co.)

text: and by: M. Allah Yar Saleh, former Minister, Dr. S. Ali Shayegan, former Minister, Member of Parliament, Dr. Mosafar Baghai, Member of Parliament, M. Kazem Hassibi, Engineer, Member of Parliament, Dr. Mohamad Hossein Aliabadi, Professor of the Tehran Faculty of Law, M. Marcel Sluszny, of the Brussels Bar,

text: as Counsel,

text: THE COURT, composed as above,

text: adjudicating on the Preliminary Objection of the Government of the Empire of Iran,

text: delivers the following Judgment :

text: On May 26th, 1951, the Government of the United Kingdom of Great Britain and Northern Ireland filed an Application instituting proceedings before the Court against the Imperial Government of Iran. The Application referred to the Declarations by which the Government of the l;nited Kingdom and the Government of Iran accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Court's Statute. The Court is asked: "(a) To declare that the Imperial Government of Iran are under a duty to submit the dispute between themselves and the Anglo-Iranian Oil Company, Limited, to arbitration under the provisions of Article 22 of the Convention concluded on the 29th April 1933, between the Imperial Government of Persia and the Anglo-Persian Oil Company, Limited, and to accept and carry out any award issued as a result of such arbitration. (b) Altrrnativcly, (i) To declare that the putting into effect of the Iranian Oil Nationalization Act of the 1st May 1951, in so far as it purports to effect a unilateral annulment, or alteration of the terms, of the Convention concluded on the 29th April 1933, between the Imperial Government of Persia and the Anglo-Persian Oil Company, Limited, contrary to Articles 21 and 26 thereof, would be an act contrary to international law for which the Imperial Government of Iran would be internationally responsible ; (ii) To declare that Article 22 of the aforesaid Convention continut>s to be legally binding on the Imperial Governy6 J UDG~IE!IIT OF 22 VII 52 (ANGLO-IRANIAN OIL Co.)

text: ment of Iran and that, by denying to the Anglo-Iranian Oil Company, Limited, the exclusive legaJ remedy provided in Article 22 of the aforesaid Convention, the Imperial Government have committed a denial of justice contrary to international law; (iii) To declare that the aforesaid Convention cannot lawfully be annulled, or its terms altered, by the Imperial Government of Iran, otherwise than as the result o( agreement with the Anglo-Iranian Oil Company, Limited, or under the conditions provided in Article 26 of the Convention ; (iv) To adjudge thal the Imperial Government of Iran should give full satisfaction and indemnity for all acts committed in relation to the Anglo-Iranian Oil Company, Limited, which are contrary to international law or the aforesaid Convention, and to determine the manner of such satisfaction and indemnity."

text: Pursuant to Article 40, paragraphs z :::.!!d 3, of the Statute, the Application was communicated to the Iranian Government as well as to the States entitled to appear before the Court. It was also transmitted to the Secretary-General of the United Nations. The Memorial of the Government of the United Kingdom was filed within the time-limit fixed by Order of july 5th, 1951, and subsequently Pxtended at the request of that Government by Order of August 22nd, 1951. The Iranian Government, within the timelimit fixed for the presentation of its Counter-Memorial as finally extended to February nth, 1952, by Order of December 17th, 1951, at the request of that Government, filed a document entitled "Preliminary Observations: Refusal of the Imperial Government to recognize the jurisdiction of the Court". The deposit of this document having suspended the proceedings on the merits, an Order dated February uth, 1952, fixed March 27th, 1952, as the time-limit within which the United Kingdom Government might submit a written statement of its observations and submissions in regard to the Objection. Furthermore, the States entitled to appear before the Court were informed of the deposit of the Objection. Finally, in pursuance of Article 63 of the Statute of the Court, the Members of the United Nations were informed that in its Objection, the Iranian Government relied, inter alia, upon its interpretation of Article 2, paragraph 7. of the Charter of the United Nations. The Observations of the United Kingdom Government in regard to the Objection were deposited within the specified time-limit and the case was thus ready for hearing, as far as the Preliminary Objection was concerned. As the Court included upon the Bench a Judge of the nationality of one of the Parties, the other Party-the Government of ltan-by virtue of Article JI, paragraph 2, of the Statute of the Court,

text: 97 jiJDGMENT OF 22 \'II 52 (Al\GW-IRAI'I.\1\ OIL CO.)

text: appointed Dr. Karim Sandjabi, Professor and former Dean of the Law Faculty of Tehran, Member of Parliament and former .1\linistcr, to sit as a Judge ad /we. As the President of the Court was a national of one of the Parties, he transferred the Presidency for the present case to the Vice- President, in accordance with Article 13. paragraph I, of the Rules of Court. Public hearings were held on June 9th, roth, rrth, 13th, 14th, r6th, 17th. 18th, 19th. 21st and 23rd, 1952. The Court heard l\

text: Navab, Dr. Mossadegh and l\1. Henri Rolin on ht>half of the Iranian Government ; and Sir Lionel Heald and Sir Eric Beckett on behalf of the United Kingdom Governmt>nt. In the course of the argument before thl' Court, the following submissions were presented :

text: On behalf of the Iranian Government:

text: May it please the Court Subject to all reservations and without prejudice, To find as fact and hold in law: 1° That the Government of the United Kingdom has altered the subject of its claim, as set forth in its Application instituting proceedings ; That the said Application requested that the Iranian Government should be required to give full satisfaction and indemnity for all acts committed in regard to the Anglo-Iranian Company contrary to the rules of international law or to the Concession Convention of April 29th, 1933, and that the manner in which this satisfaction and reparation were to be given should be determined ; That the United Kingdom Government requested, in its Memorial, as its principal demand: restitution of the enterprise to the concessionary Company and the determination of the damages due to the said Company for loss and damage, either by the Arbitration Court provided for in Article 22 of the Concession or in such other manner as the Court may decide ; as an alternative, if the Court should not order restitution of the enterprise, that the compensation due for regular expropriation should similarly be determined by the arbitral procedure laid down in Article 22 of the Concession Convention, or in such other manner as the Court may decide ; as a further alternative, that, in any case, the provisions contained in the Nationalization Act with res-ard to compensation should be declared inadequate from the pomt of view of international law, and that the amount of such compensation should be determined by arbitration or by the Court ; that the two first claims are inadmissible, because the Government of the United Kingdom by its Declaration of August 3rd, 1951, abandoned its request for adjudication of the said claims ;

text: 98 JUDG~IENT OF 22 VII 52 (ANGLO-IRANIAN OIL Co.)

text: That the third claim is not admissible, no such request ha,·ing been formulated in the Application instituting procef'dings ; That, in any case, the Court has no jurisdiction to deal with it, as this claim was formulated subsN1uent to the Iranian Government's denunciation on ] uly 10th, 1951, of its Declaration of adherence to the Optional Clause under Article 36 of the Court's Statute, and was not concerned" with the settlement of a dispute ; 2° That the Court should declare that it laci<s jurisdiction ex officio in application of Article 2, paragraph 7, of the Charter of the United Nations, the matters dealt with by the Nationalization Laws of March 2oth and May 1st, 1951, being essentially within the domestic jurisdiction of States and incapable of being the subject of an intervention by any organ of the United Nations; 3° That the Court has jurisdiction only in so far as jurisdiction is conferred on it by the declarations of the Parties ; That in the present case the Iranian Declaration limits the jurisdiction of the Court to disputes arising after the ratification of the said Declaration, with regard to situations or facts relating directly or indirectly to the application of treaties or cOiwentions accepted by Persia and subsequent to the ratification of the said Declaration ; That the claims of the United Kingdom Government arc based either upon treaties concluded between Iran and other Powers, the benefit of which can only be invoked by the United Kingdom by application of the most-favoured-nation clause, a clause which appears only in the treaties concluded between Iran and the United Kingdom in 1857 and 1903, i.e. prior to the ratification of the Iranian Declaration ; or upon an exchange of notes, which does not possess the character of a treaty or convention, dated May roth, 1928, a date which is prior to the ratification of the Iranian Declaration and which confines itself to noting the Iranian Government's undertaking to respect, in regard to British nationals, the rules of general international law, the violation of which, as such, is not invoked by the United Kingdom Government, and would not give ground for the institution of proceedings before the Court, having regard to the Declarations of the two Parties; or upon an alleged tacit agreement between the two Governments in connection with the renewal of the Anglo-Iranian Oil Company's concession in 1933, which tacit agreement is formally disputed, and in any case does not possess the character of a treaty or convention, because it was not concluded between States, was not put in writing, and was not registered in conformity with Article 18 of the Covenant of the League of Nations, which was applicable at that time ; That, accordingly, the Court, on these grounds, lacks jurisdiction; -J. That furthermore, a prima facie examination suffices to show that the British claims have no relation to the treaties, or alleged treaties, that are invoked, as these instruments manifestly do not possess the scope which the applicant State attributes to them ; That, on this ground also, the Court should dedare that it lacks jurisdiction ;

text: 99 JUDGMENT OF 22 VII 52 (ANGI.O-rRANIAN OIL CO.) sa That the claim concerning the amount of the compensation due to the Anglo-Iranian Oil Company is also inadmissible, because that Company has not yet exhausted the local remedies provided by Iranian law ; 6° That the United Kingdom and Iran, having in their Declarations reserved questions which, according to international law, arf' within the exclusive jurisdiction of States, this reservation, havmg regard to the substitution of Article 2, paragraph 7, of the Charter of the United Nations for Article 15, paragraph 8, of the Covenant of the League of Nations, must be understood as extending to questions which are essentially within the domestic jurisdiction of States ; That express declarations of this kind undoubtedly reinforce the general provision in Article 2, paragraph 7, of the Charter of the t:nited Nations, and therefore constitute an additional reason for the Court to declare that it lacks jurisdiction ;

text: In view of the foregoing,

text: To declare that it lacks jurisdiction, And, in any case, to find that the claims are inadmissible.

text: As a further alternative, To place on record for the Iranian Government its declaration that, in so far as may be necessary, it avails itself of the right reserved in its Declaration, to require the suspension of the proceedings, since the dispute before the Court has, in fact, been submitted to the Security Council and is under examination by that body.

text: On behalf of the United Kingdom Government : ; . That the question of the Court's jurisdiction is the only question which arises for decision by the Court at the present time and no other question,. whether or not it is one which could be raised by preliminary objection, falls for decision by the Court at the present time.

text: That the Court has, under Article 36, paragraph 2, of its Statute, jurisdiction in respect of all disputes covered by the declaration of Iran accepting the Optional Clause. 3· That the Iranian declaration accepting the Optional Clause covers disputes arising after the ratification thereof in regard to situations or facts subsequent to the ratification thereof and having reference directly or indirectly to the application of treaties or conventions accepted by Iran at any time.

text: 4· That by reason of the third conclusion, the Court has jurisdiction to entertain the claim of the United Kingdom that Iran, in :putting into force the law of Ist May, 1951, relating to the nationalization of the oil industry in Iran, has violated its obligations towards the United Kingdom resulting from the following treaties or com•entions accepted by Iran : (a) The treaties and conventions between Iran and third States enumerated in paragraph II of Annex 2 of the United Kingdom IO

text: IOO JUDG~tENT OF 22 \'II 52 (ANGLO-IRANIAN OIL CO.)

text: Memorial, being trea ties or conventions upon which the United Kingdom is entitled to rely by reason of Article 9 of the Treaty of 1857 between the United 1\ingdom and Pt'rsia and Article 2 of the Treaty of 1903 between the United Kingdom and Persia. (b) The exchange of notes between the Imperial Government of Persia and the United Kingdom dated roth May 1928 regarding the position of British nationals in Persia. _'-) The Treaty stipulation arising out of the settlement in 1933, through the mediation of the Council of the League of Nations, of the international dispute between the United Kingdom and Persia, the conditions of which settlement are contained in the Concession Con\'ention concluded by the Imperial Government of Persia with the Anglo-Persian Oil Company in that year. 5· That the contention in paragraph 3 of the Iranian conclusions that the Persian declaration accepting the Optional Clause only co\·ers disputes arising out of treaties accepted by Iran after the date of the ratification of that declaration, is wrong.

text: That if, contrary to the fifth conclusion, the Persian declaration is limited to trraties and conventions accepted by Iran after the date of the ratification of its declaration accepting the Optional Clause, the Court has jurisdiction to entertain the claim by the United Kingdom that Iran has infringt>d its obligations towards the United Kingdom resulting from the following treaties or conventions accepted by Iran : (i) the Treaty of Friendship, Establishment and Commerce between Persia and Denmark signed on the 2oth February 1934; upon which the United Kingdom is entitled to rely by reason of Article cj of the Treaty of 1857 and Article 2 of the Treaty of 1903 between the United Kingdom and Persia, and (ii) the treaty stipulation between the Government of Iran and the Government of the United Kingdom referred to in paragraph (c) of Conclusion 4· 7· That the contention in paragraph (1) of the franian conclusions that, by reason of a statement in a note of the Jrd August 1951, from the British Embassy in Tehran to the Iranian Government or otherwise, the United Kingdom has abandoned the claims formulated in letter A of its final conclusions contained in paragraph 48 of the United Kingdom Memorial of the 10th October I95r, and that therefore these claims cannot be entertained by the Court (a} docs not relate to the question of jurisdiction and therefore does not fall for decision by the Court at the present time, and (b) is ill-founded.

text: The contention in paragraph (I) of the Iranian conclusions that the alternative claim (litt. B) of the final conclusions in paragraph 48 of the United Kingdom Memorial must be rejected on the ground that it was not covered by the Application instituting proceedings I I

text: IOI J UDG:'>tENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)

text: (a) docs not relate to the question of iurisdiction, and therefore does not fall for decision by the Court at the present time, and (b) is ill-founded. 9· The contention in paragraph 1 of the Iranian conclusions that the Court has no JUrisdiction to entertain the aforesaid claim B, on the ground that it was formulated after the denunciation by Iran of its declaration accepting the Optional Clause, is ill-founded.

text: That the contention in paragraph 5 of the Iranian conclusions that the said alternati,·e claim B is not receivable because municipal remedies have not been exhausted (a) docs not relate to the question of jurisdiction and thert>fore does not fall for decision by the Court at the present time, and (b) is ill-founded.

text: That the last "subsidiary" contention in the Iranian conclusions that, by reason of the penultimate paragraph of the Persian declaration accepting the Optional Clause, Iran is entitled to require that proceedings in the Court should be suspended on the ground that the dispute between the Parties has been submitted to the Security Council of the United Nations, (a) does not relate to the question of the jurisdiction of the Court and therefore does not fall for decision at the present stage, and

text: (b) is ill-founded.

text: That the present dispute between the United Kingdom and Iran does not relate to a matter which, according to international law, falls exclusively within the jurisdiction of Iran and therefore the jurisdiction of the Court is not affected by exception (c) of the Iranian declaration accepting the Optional Clause.

text: That the contention in paragraph 6 of the Iranian conclusions that exception (c) of the Iranian declaration accepting the Optional Clause must, having regard to the provisions of paragraph 7 of Article 2 of the Charter of the United ~ations, be regarded as extending to questions which are essentially within the jurisdiction of Iran, is ill-founded.

text: That if, contrary to Conclusion 13 above, the Iranian contention referred to in 13 above is correct, the present dispute does not relate to a question which falls essentially within the domestic jurisdiction of Iran.

text: That paragraph 7 of Article 2 of the Charter of the United Nations is not relevant to the jurisdiction of the Court.

text: That if, contrary to Conclusion IS above, paragraph 7 of Article 2 of the Charter of the United Nations is relevant to the jurisdiction of the Court, the present dispute is not a matter which JS essentially within the domestic jurisdiction of Iran.

text: That the Iranian Government, having in its conclusion& submitted to the Court for decision several questions which are not objections to the jurisdiction of the Court and which could only be decided if the Court had jurisdiction, has by this action conferred jurisdiction upon the Court on the basis of the principle of forum prorogatum.

text: 102 J UDG!\IENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.) For these reasons, the Government of the United Kingdom accordingly prays the Court : (r) to declare that it has jurisdiction or, alternatively, to join the question of jurisdiction to the merits ; and (2) to order the Iranian Government to plead on the merits and fix the time-limits for the further written proceedings .

text: On April 29th, 1933. an agreement was concluded between the Imperial Govcrnmt>nt of Persia (now the Imperial Government of Iran, which name the Court will usc hereinafter) and the Anglo- Persian Oil Company, Limited (later the Anglo-Iranian Oil Company, Limited). a company incorporated in the L"nited Kingdom. This agreement was ratified by the Iranian Majlis on May 28th, 1933. and came into force on the following day after having received the Imperial assent. On March 15th and 2oth, 1951, the Iranian Majlis and Senate, respectively, passed a law enunciating the principle of nationalization of the oil industry in Iran. On April 28th and 30th, 1951, they passed another law "concerning the procedure for enforcement of the law concerning the nationalization of the oil industry throughout the country". These two laws received the Imperial assent on May 1st, 1951. As a consequence of these laws, a dispute arose between the Government of Iran and the Anglo-Iranian Oil Company, Limited. The Government of the United Kingdom adopted the cause of this British Company and submitted, in virtue of the right of diplomatic protection, an Application to the Court on May 26th, 1951, instituting proceedings in the name of the Government of the United Kingdom of Great Britain and Northern Ireland against the Imperial Government of Iran. On June 22nd, 1951, the Government of the United Kingdom submitted, in accordance with Article 41 of the Statute and Article 61 of the Rules of Court, a request that the Court should indicate provisional measures in order to preserve the rights of that Government. In view of the urgent nature of such a request, the Court, by Order of July 5th, 1951, indicated certain provisional measures by virtue of the power conferred on it by Article 41 of the Statute. The Court stated expressly that "the indication of such measures in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction". While the Court derived its power to indicate these provisional measures from the special provisions contained in Article 41 of the Statute, it must now derive its jurisdiction to deal with the merits of the case from the general rules laid down in Article 36 of the 1J

text: 103 JUDG:'YIENT OF 22 \'IJ 52 (A~GI.O-IRAI\IAN OIL Co.)

text: Statute. These general rules, which arc entirely different from the special provisions of Article 41, arc hased on the principle that the jurisdiction of the Court to deal with and decide a case on the merits dcp<>nds on the will of the Parties. Unless the Parties have conferred jurisdiction on the Court in accordance with Article 36, th<> Court lacks such jurisdiction. In the present case the jurisdiction of the Court depends on the Declarations made by the Parties under Article 36, paragraph 2, on condition of reciprocity, which were, in the case of the Cnited Kingdom, signed on February 28th, 1940, and, in the case of Iran, signed on October 2nd, 1930, and ratified on September 19th, 1932. By these Declarations, jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it. As the Iranian Declaration is more limited in scope than the ·United Kingdom Declaration, it is the Iranian Declaration on which the Court must base itself. This is common ground between the Parties. The Iranian Declaration, which was drafted in French, is as follows:

text: [Trattslation j

text: "The Imperial Government of Persia recognizes as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation. that is to say, on condition of reciprocity, the jurisdiction of the Permanent Court of International Justice, in accordance with Article 36, paragraph 2, of the Statute of the Court, in any disputes arising after the ratification of the present declaration with regard to situations or facts relating directly or indirectly to the application of treaties or conventions accepted by Persia and subsequent to the ratification of this declaration, with the ~xception of : (a} disputes relating to the territorial status of Persia, including those concerning the rights of sovereignty of Persia over its islands and ports ; (b) disputes in regard to which the Parties have agreed or shall agree to have recourse to some other method of peaceful settlement ; (c) disputes with regard to questions which, by international law, fall exclusively within the jurisdiction of Persia;

text: However, the Imperial Government of Persia reserves the right to require that proceedings in the Court shall be suspended in respect of any dispute which has been submitted to the Council of the League of Nations. The present declaration is made for a period of six years. At the expiratton of that period, it shall continue to bear its full effects until notification is given of its abrogation."

text: According to the first clause of this Declaration, the Court has jurisdiction only when a dispute relates to the application of a treaty or convention accepted by Iran. The Parties are in agreement on this point. But they disagree on the question whether this juris-

text: 104- JUDG~IENT OF 22 VII 52 (ANGLO-IRANIA:-1 OIL CO.)

text: diet ion is limited to the application of treaties or conventions accepted by Iran after the ratification of the Df'claration, or whether it compi·ises the application of treatif's or c:onventions accepted by Iran at any time. The (~overnmt'nt of (ran contends that the jurisdiction of the Court is limited to the application of treaties or con\'entions accepted bv [ran after the ratification of the Declaration. It refers to the fact that the words "et posttfrieurs a la ra#ficalion de cette declaratim~" follow immediately after the expression "lraites Ott conventions acceptes par la Perse". The Government of the United Kingdom contends that the words "el posteriettrs ala ratification de ceUe declaration" refer to the expression "au. sujet de situations ou de fails". Consequently, the Government of the l.'nited Kingdom maintains that the Declaration relates to thf' application of treatie or conventions accepted by Iran at any time. [f the Declaration is considered from a purely grammatical point of view, both contentions might he regarded as compatible with the h•xt. The wMds ''et pusterieurs a la ratiticatioll de cette declaratio·n" may, strictly speaking, be considered as referring either to the exprPssion "lraites ott conventions acceptis par la Perse", or to the expression "au sujet de situatiom; ou de faits". But the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court. The text itself conveys the impression that the words "posterieurs a la mlification de cet/e declaration" relate to the expression which immediately precedes them, namely, to "traites ott conventions acceptes par la Perse", to which they are linked by the word "et". This is, in the opinion of the Court, the natural and reasonable way of reading the text. lt would require special and clearly established reasons to link the words " et posterieurs a la ratification de cette declaration", to the expression "au sujet de situations ou de faits", which is separated from them by a considerable number of words, namely, "ayant direclement ou indirectement trait a l'applicatio1t des traites mt conventions acceptes par la Perse".

text: The Government of the United Kingdom has endeavoured to invoke such special reasons. It has relied on the fact that the Iranian Declaration is copied from the corresponding clause adopted by Belgium in 1925 which refers to "torts les di(jermds qui s'eleveraient apres la ratification de la presente declaration au sttjet de situations ou de fails posterieurs a cette ratification". It is argued that thereafter this formula or a similar one was adopted by numerous States and that the Iranian Declaration must be understood in the same sense, namely, that the expression "et posterieurs a la ratification de cette

text: IS

text: 105 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.) declaration" relates only to the expression "au sttjet de situations ou de faits". But these expressions, which in the Belgian Declaration are closely linked to each other, are in the Iranian Declaration separated by the words "ayant directement Ott indirectement trait a ['application des traites ott conventimts acceptes par la Perse". By the interpolation of these words, the substance of the usual formula was so much altered that it is impossible to seek the real meaning of the Iranian Declaration in that formula. This Declaration must be interpreted as it stands, having regard to the words actually used.

text: The Government of the United Kingdom has further argued that the Declaration would contain some superfluous words if it is interpreted as contended by Iran. It asserts that a legal te~t should be interpreted in such a way that a reason and a meaning can be attributed to every word in the text. It may be said that this principle should in general be applied when interpreting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States. It is the r~sult of unilateral drafting by the Government of Iran, which appears to have shown a particular degree of caution when drafting the text of the Declaration. It appears to have inserted, ex abundanti cautela, words which, strictly speaking, may seem to have been superfluous. This caution is explained by the special reasons which led the Government of Iran to draft the Declaration in a very restrictive manner. On May roth, 1927, the Government of Iran· denounced all treaties with other States relating to the regime of capitulations, the denunciation to take effect one year thereafter, and it had commenced negotiations with these States with a view to replacing the denounced treaties by new treaties based on the principle of equality. At the time when the Declaration was signed in October 1930, these negotiations had been brought to an end with some States, but not with all. The Government of Iran considered all capitulatory treaties as no longer binding, but was uncertain as to the legal effect of its unilateral denunciations. It is unlikely that the Government of Iran, in such circumstances, should have been willing, on its own initiative, to agree that disputes relating to such treaties might be submitted for adjudication to an international court of justice by virtue of a general clause in the Declaration.

text: It is reasonable to assume, therefore, that when the Government of Iran was about to accept the compulsory jurisdiction of the Court, it desired to exclude from that jurisdiction all disputes which might relate to the application of the capitulatory treaties, and the Declaration was drafted on the basis of this desire. In the light of these considerations it does not seem possible to hold that the term "traites ou conventions", used in the Declaration, could mean treaties r6 w6 JUI)GMI::NT OF 22 VII 52 (ANGLO-IltASIAN OIL Co.)

text: or conventions concluded at any time, as contended by the Govern- JO(•nt of the United Kingdom.

text: It is obi1•cted that the Govt->rnment of lran, at or about the time when it signed the Df'claration, concluded with a number of other States bilateral tr<'aties which provided for arbitration of disputes relating to trt>ati1·s already concluded or to be concluded. This attitude is said to be contrary to the view that the Government of Iran desired to exclude from the jurisdiction of the Court treaties accepted by it before the ratification of the Declaration.

text: This objection loses all weight when it is viewed in the light of the special reasons which prompted the formulation by the Iranian Government of its Declaration on the one hand, and of the arbitration clauses inserted in certain treaties on the other. That Government was dealing with two different situations, one being particular, the other general. It is quite understandable that it was disposed to accept the arbitration clause as it is expressed in the treaties concluded with certain States which were willing to give up capitulatory rights. But the Government of Iran was confronted with an entirt>ly different problem when it was preparing a Declaration under Article 36. paragraph 2, of the Court's Statute, binding itself to submit to the jurisdiction of the Court in relation to all States which had signed similar Declarations or which might do so in the future, whether such States had concluded with Iran treaties replacing the regime of capitulations or not. Having regard to these considerations, the Court is satisfied that it was the manifest intention of the Government of Iran to t>xclude from the jurisdiction of the Court disputes relating to the application of all treaties or conventions accepted by it before the ratification of the Declaration. This intention has found an adequate expression in the tPxt of the Declaration as interpreted above by the Court. That such was the intention of the Government of Iran is confirmed by an Iranian law of June 14th, I9JI, by which the Majlis approved the Declaration. This law was passed some months after the Declaration was signed and some months before it was ratified. It was stated in that law that the Majlis approved the Declaration relating to the compulsory jurisdiction of the Court "as it was signed by the representative of Iran" on October 2nd, 1930 ; it was further stated that the law comprised a single article and the text of Article 36 of the Court's Statute, "together with the conditions of the I ran ian Government's accession to the aforesaid Article". One of these conditions was mentioned as follows : "In respect of all disputes arising out of situations or facts relating, directly or indirectly, to the execution of treaties and conventions which the Government will have accepted after the ratification of the Declaration."

text: 107 JUDGMENT OF 22 VII 52 (ANGT.O-IRA:>IIAN OIL Co.)

text: This clause, referring as it does to "treaties and conventions which the Government will have accepted after the ratification of the Declaration", is, in the opinion of the Court, a decisive confirmation of the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court. 1t is argued that the terms used in the law arc not identical \Vith the text of the Declaration. That is true. But it is irrelevant, since the law only paraphrases the Declaration without repeating it textually. Had the Iranian Government been of the opinion that the terms of the law differed from the true meaning of the Declaration, as it was signed in October 1930, it could easily have altered the Declaration. But it did not do so. It ratified it in September 1932 without any modification. It must therefore have considered that the Declaration corresponded to the explanation given in the law of 1931. It is contended that this evidence as to the intention of the Government of Iran should be rejected as inadmissible and that this Iranian law is a purely domestic instrument, unknown to other governments. The law is described as "a private document written only in the Persian language which was not communicated to the League or to any of the other States which had made declarations". The Court is unable to see why it should be prevented from taking this piece of evidence into consideration. The law was published in the Corpus of Iranian laws voted and ratified during the period from January ISth, 1931, to January xsth, 1933· It has thus been available for the examination of other governments during a period of about twenty years. The law is not, and could not he, rt>lied on as affording a basis for the jurisdiction of the Court. It was filed for the sole purpose of throwing light on a disputed question of fact, namely, the intention of the Government of Iran at the time when it signed the Declaration. Having regard to the foregoing considerations, the Court concludes that the Declaration is limited to disputes relating to the application of treaties or conventions accepted by Iran after the ratification of the Declaration.

text: 'The United Kingdom contends, however, that even if the Court were to hold that the Declaration applies only to disputes relating to the application of treaties or conventions accepted by Iran after the ratification of the Declaration, it would still ha\'e jurisdiction in the present case. The contention of the United Kingdom is that the acts of which it complains constitute a violation by Iran of certain of its obligations to the United Kingdom re!'ulting from treaties or conventions accepted by Iran after the ratification of the Declaration. The treatie!: and convention!' rt>lied upon in this connection arl' :

text: 108 JUDGME~T OF 22 VII 52 (ANGLO-IItANIAN OIL Co.)

text: \i) The Treaty of Friendship, Establishment and Commerce concluded between Iran and Denmark on February 2oth, 1934; the Establishment Convention concluded between Iran and Switzerland on April 25th, 1934 ; and the Establishment Convention concluded between Iran and Turkey on 1\·Jarch 14th, 1937. (ii) What the l"nited Kingdom Government describt>s as thP. "treaty stipulation" between the Government of Iran and the Government of the l·nited 1\ingdom arising out of the settlement in 1933, through the mediation of the Council of the League of Nations, of the international dispute bet ween the t:nited Kingdom and Iran relating to a concession known as the D'Arcy Concession.

text: Article IV of the Treaty of 1934 between Iran and Denmark, upon which the l"nited Kingdom Go\'rrnmcnt relies, provides that:

text: [Translation} "The nationals of each of the High Contracting Parties shall, in the territory of the other, be received and treated, as regards their persons and property, in accordance with the principles and practice of ordinary international law. They shall enjoy therein the most constant protection of the laws and authorities of the territory for their persons, property, rights and interests." The Establishment Conventions concluded by [ran with Switzerland and Turkey each contain an article similar to Article IV of the Iranian-Danish Treatv. The United Kingdom relies on these three treaties by virtue of the most-favoured-nation clause contained in Article IX of the Treaty concluded between the United Kingdom and Iran on :\farch 4th, 1857, and in Article 2 of the Commercial Convention concluded between the tTnited Kingdom and Iran on February gth, 1903. Article IX of the Treaty of 1857 reads : "The High Contracting Parties engage that, in the establishment and recognition of Consuls-General, Consuls, Vice-Consuls, and Consular Agents, each shall be placed in the dominions of the other on the footing of the most-favoured nation ; and that the treatment of their respective subjects, and their trade, shall also, in every respect, be placed on the footing of the treatment of the subjects and commerce of the most-favoured nation."

text: Article II of the Commercial Convention of 1903 provides as follows:

text: and importations in Persia, as well as Persian subjects and Persian importations in the British Empire, shall continue to enjoy in

text: It is argued by the 'Cnited Kingdom Government that the conduct of the Iranian Government towards the Anglo-Iranian Oil

text: 109 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)

text: Company constitutes a breach of the principles and practice of international law which, by her treaty with Denmark, Iran promised to observe towards Danish nationals, and which, by the operation of the mos~-favoured-nation clause contained in the treaties between Iran and the United Kingdom, Iran became bound to observe towards British nationals. Consequently, the argument continues, the dispute which the United Kingdom has brought before the Court concerns situations or facts relating directly or indirectly to the application of a treaty-the Treaty of 1934 between Denmark and Iran-accepted by Iran after the· ratification of her Declaration. The Court cannot accept this contention. It is obvious that the term traites ou conventions used in the Iranian Declaration refers to treaties or conventions which the Party bringing the dispute before the Court has the right to invoke against Iran, and does not mean any of those which Iran may have concluded with any State. But in order that the United Kingdom may enjoy the benefit of any treaty concluded by Iran with a third party by virtue of a most-favoured..:nation clause contained in a treaty concluded by the United Kingdom with Iran, the United Kingdom must be in a position to invoke the latter treaty. The treaty containing the mostfavoured-nation clause is the basic treaty upon which the United Kingdom must rely. It is this treaty which establishes the juridical link between the United Kingdom and a third-party treaty and confers upon that State the rights enjoyed by the third party. A third-party treaty, independent of and isolated from the basic treaty, cannot produce any legal effect as between the United Kingdom and Iran : it is res inter alios acta. It is contended by the United Kingdom that upon the coming into force of the Iranian-Danish Treaty on March 6th, 1935, Iran became bound, by the operation of the most-favoured-nation clause, to treat British nationals on her territory in accordance with the principles and practice of international law. Without considering the meaning and the scope of the most-favoured-nation clause, the Court confines itself to stating that this clause is contained in the Treaties of 1857 and 1903 between Iran and the United Kingdom, which arc not subsequE-nt to the ratification of the Iranian Declaration. While Iran is bound by her obligations under these Treaties as long as they are in force, the United Kingdom is not entitled to rely upon them for the purpose of establishing the jurisdiction of the Court, since they are excluded by the terms of the Declaration. The United Kingdom argued that the question which the Court had to consider was not "what are the treaties which confer on Great Britain the rights in question", but "what are the treaties whose application is in dispute". But from the legal point of view, what is in dispute is not the application of the Treaty of 1934 between Iran and Denmark, but the application of the Treaty of 1857 or the Convention of 1903 between Iran and

text: 110 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)

text: the United Kingdom in conjunction with the Treaty of 1934 between Iran and Denmark. There could be no dispute between lran anrl the Cnitcd Kingdom upon the Iranian-Danish Treaty alone. The Cnited Kingdom also put forward, in a quite different form, an argument concerning the most-favoured-nation clause. l£ Denmark, it is argued, can bring before the Court questions as to lhe application of her 1934 Treaty with Iran, and if the United J{ingdom cannot bring before the Court questions as to the application of the same Treaty to the benefit of which she is entitled under th(' most-favoured-nation clause, then the United Kingdom would not be in the position of the most-favoured nation. The Court needs only observe that the most-favoured-nation clause in the Treaties of 1857 and 1903 between lran anrl the United Kingdom has no relation whatever to jurisdictional matters between the two Governments. If Denmark is entitled under Article 36, paragraph 2, of the Statute, to bring before the Court any dispute as to the application of its Treaty with Iran, it is because that Treaty is subsequent to the ratification of the Iranian Declaration. This can not give rise to any question relating to most-favoured-nation treatment.

text: The word "indircctement" in the phrase "au sujet de situations ou de faits ayant directement ou indirectement trait a !'application des traitcs ou conventions" has been relied upon in arguing that the dispute brought before the Court may be considered as involving indirectly the application of a treaty subsequent to the Declaration the Iranian-Danish Treaty of 1934. The words "directement ou indirectement" clearly describe the manner in which a certain situation or certain facts forming the subject-matter of a dispute may be related to a treaty : such relation may be direct or indirect. But such direct or indirect relation is not in issue in the present case. What is in issue is whether the United Kingdom, for the purpose of satisfying the requirements of the Declaration, can invoke a treaty to which it is not a party by way of a treaty to which it is a party. The word "indirectement" cannot apply to the solution of this question. If the United Kingdom is not entitled to invoke its own Treaty of 1857 or 1903 with Iran, it cannot rely upon the Iranian-Danish Treaty, irrespective of whether the facts of the dispute are directly or indirectly related to the latter treaty.

text: The Court must, therefore, find in regard to the Iranian-Danish Treaty of 1934, that the United Kingdom is not entitled, for the purpose of bringing its present dispute with Iran under the terms of the Iranian Declaration, to invoke its Treaties of r857 and I903 with Iran, since those Treaties were concluded before the ratification of the Declaration ; that the most-favoured-nation clause contained in those Treaties cannot thus be brought into operation ; ana that, consequently, no treaty concluded by Iran with any third party can be relied upon by the United Kingdom in the present case.

text: III JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL Co.)

text: The Court will now consider whether the settlement in 1933 of tpe dispute between the Government of the United Kingdom and the Government of Iran relating to the D'Arcy Concession, through the mediation of the Council of the League of Nations, resulted, as is claimed by the United Kingdom, in any agreement between the two Governments which may be regarded as a treaty or convention within the meaning of this expression in the Iranian Declaration. Whether or not the concession contract of 1933 or the settlement of the dispute in that year constituted an agreement between the Government of Iran and the Government of the United Kingdom is a question relating to jurisdiction, the solution of which does not depend upon a consideration of the merits. It can be and must be determined at this stage, quite independently of the facts surrounding the act of nationalization complained of by the United Kingdom. In November 1932 the Iranian Government decided to cancel the D' Arcy Concession. On December 19th, 1932, the United Kingdom Government, having protested to the Iranian Government without avail, submitted the case to the Council of the League of Nations. The Council placed the question on the agenda and appointed a Rapporteur. On February 3rd, 1933, the Rapporteur informed the Council that the Governments of Iran and the United Kingdom had agreed to suspend all proceedings before the Council ; that they agreed that the Company should immediately enter into negotiations with the Iranian Government, the respective legal points of view being entirely reserved ; and that, in the event that the negotiations should fail, the question should go back to the Council. After prolonged discussion between the representatives of the Iranian Government and the representatives of the Company, an agreement-the Concession Contract-was signed by them at Tehran on April zgth. It was subsequently ratified by the Iranian Government. On October 12th, the Rapporteur submitted his report, together ·with the text of the new concession, to the Council, declaring that "the dispute between His Majesty's Government in the United Kingdom and the Imperial Government of Persia is now finally settled". Thereupon the representatives of Iran and the United Kingdom at the Council each expressed their satisfaction at the settlement thus reached. The question was removed from the agenda of the Council.

text: The United Kingdom maintains that, as a result of these proceedings, the Government of Iran undertook certain treaty obligations towards the Government of the United Kingdom. It endeavours to establish those obligations by contending that the agreement signed by the Iranian Government with the Anglo-Persian Oil

text: 112 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL Co.) Company on April zgth, r933, has a double character, the character of being at once a concessionary contract between the Iranian Government and the Company and a treaty between the two Governments. It is further argued by the United Kingdom that even if the settlement reached in 1933 only amounted to a tacit or an implied agreement, it must be considered to be within the meaning of the term "treaties or conventions" contained in the Iranian Declaration. The Court cannot accept the view that the contract signed hetween the Iranian Government and the Anglo-Persian Oil Company has a double character. It is nothing more than a concessionary contract between a government and a foreign corporation. The United Kingdom Government is not a party to the contract ; there is no privity of contract between the Government of Iran and the Government of the United Kingdom. Under the contract the Iranian Gov~rnment cannot claim from the United Kingdom Government any rights which it may claim from the Company, nor can it be called upon to perform towards the United Kingdom Government any obligations which it is bound to perform towards the Company. The document bearing the signatures of the representatives of the Iranian Government and the Company has a single purpose : the purpose of regulating the relations between that Government and the Company in regard to the concession. It does not regulate in any way the relations between the two Governments. This juridical situation is not altered by the fact that the concessionary contract was negotiated and entered into through the good offices of the Council of the League of Nations, acting through its Rapporteur. The United Kingdom, in submitting its dispute with the Iranian Government to the League Council, was only exercising its right of diplomatic protection in favour of one of its nationals. It was seeking redress for what it believed to be a wrong which Iran had committed against a juristic person of British nationality. The final report by the Rapporteur to the Council on the successful conclusion of a new concessionary contract between the Iranian Government and the Company gave satisfaction to the United Kingdom Government. The efforts of the United Kingdom Government to give diplomatic protection to a British national had thus borne fruit, and the matter came to an end with its removal from the agenda.

text: Throughout the proceedings before the Council, Iran did not make any engagements to the United Kingdom other than to negotiate with the Company, and that engagement was fully executed. Iran did not give any promise or make any pledge of any kind to the United Kingdom in regard to the new concession. The fact that the concessionary contract was reported to the Council and placed in its records does not convert its terms into the terms of a treaty by which the Iranian Government is bound vis-a-vis the United Kingdom Government.

text: II3 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL Co.) The United Kingdom has stressed the similarity between the

text: case of The Free Zones of Upper Savoy and the District of Gex and

text: the present case, and has cited the Order made by the Permanent Court of International Justice on December 6th, 1930, in the former case to show that the concessionary contract of 1933 "laid down what was to be the law between the United Kingdom and Iran". The Court docs not see any analogy between the two cases. The subject-matter of the dispute in that part of the Free Zones case which has been relied upon by the United Kingdom related to customs matters. which were of direct concern to the two countries, while the subject-matter of the dispute between the United Kingdom and Iran in 1932 and 1933 arose out of a private concession. The conclusion of the new concessionary contract removed the cause of a complaint by the United Kingdom against Iran. It did not regulate any public matters directly concerning the two Governments. It could not possibly be considered to lay down the law between the two States. It is thus clear that the proceedings before the Council of the League of Nations which led up to the settlement in 1933 of the dispute between the United Kingdom and Iran relating to the D'Arcy Concession, did not result in the conclusion of any treaty or convention between the two countries .

text: The Court has found that the United Kingdom is not entitled to invoke any of the treaties concluded by Iran with Denmrrk and Switzerland in 1934 and with Turkey in 1937 and that no treaty or convention was concluded in 1933 between Iran and the United Kingdom. No other treaties having been relied upon by the United Kingdom as treaties or conventions subsequent to the ratification of the Iranian Declaration, the Court must conclude that the dispute brought before it by the United Kingdom is not one of those disputes arising "in regard to situations or facts relating directly or indirectly to the application of treaties or conventions accepted by Persia and subsequent to the ratification of this Declaration". Consequently, the Court cannot derive jurisdiction in the present case from the terms of the Declaration ratified by Iran on September 19th, 1932.

text: During the oral proceedings, the United Kingdom Government presented a Submission "that the Iranian Government, having in its Conclusions submitted to the Court for decision several questions which are not objections to the jurisdiction of the Court, and which could only be decided if the Court had jurisdiction, has by this action conferred jurisdiction upon the Court on the basis of the principle of forum prorogatttm". Although the Agent of the United

text: II4 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.) Kingdom Government stated subsequently that he did not wish to press his contention on this point, the Submission was not formally withdrawn. The Court must, therefore, deal with it. The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court. Having filed a Preliminary Objection for the purpose of disputing the jurisdiction, it has throughout the proceedings maintained that Objection. It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran's Objection to the jurisdiction were rejected. No element of consent can be deduced from such conduct on the part of the Government of Iran. Consequently, the Submission of the United Kingdom on this point cannot be accepted. Accordingly, the Court has arrived at the conclusion that it has no jurisdiction to deal with the case submitted to it by the Application of the Government of the United Kingdom dated May 26th, 1951. It is unnecessary for the Court to consider any of the other objections raised to its jurisdiction. Since the Court is without jurisdiction in the present case, it need not examine any arguments put forward by the Iranian Government against the admissibility of the claims of the United Kingdom Government.

text: In its above-mentioned Order of July 5th, 1951, the Court stated that the provisional measures were indicated "pending its final decision in the proceedings instituted on May 26th, 1951, by the Government of the United Kingdom of Great Britain and Northern Ireland against the Imperial Government of Iran". It follows that this Order ceases to be operative upon the delivery of this Judgment and that the Provisional Measures lapse at the same time.

text: II5 JUDGMENT OF 22 VII 52 (ANGLO·IRANIAN OIL CO.)

text: For these reasons. THE COURT, by nine votes to five, finds that it has no jurisdiction in the present case. Done in English and French, the English text being authoritative. at the Peace Palace, The Hague, this twenty-second day of July, one thousand nine hundred and fifty-two, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the United Kingdom of Great Britain and Northern Ireland and to the Imperial Government of Iran, respectively.

text: (Signed) J. G. GUERRERO, Vice-President.

text: (Signed) E. HAMBRO, Registrar.

text: Sir Arnold MeN AIR, President, availing himself of the right conferred on him by Article 57 of the Statute, appends to the J udgment the statement of his individual opinion. Judges AI.VAREZ, HACKWORTH, READ and LEVI CARNEIRO, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment statements of their dissenting opinions. (Initialled) J. G. G. (Initialled) E. H.

title: Anglo-Iranian Oil Co. (United Kingdom v. Iran)