#10 The Danube Dam Case

Facts:
Hungary and Czechoslovakia in 1977 concluded a treaty for the building of dam structures in Slovakia and
Hungary for the production of electric power, flood control and improvement of navigation on the Danube.

On Hungary's initiative, the two parties first agreed, by two Protocols signed on 10 October 1983 to slow
the work down and to postpone putting into operation the power plants, and then, by a Protocol signed on
6 February 1989 to accelerate the Project.

As a result of intense criticism which the Project had generated in Hungary, the Hungarian Government
decided on 13 May 1989 to suspend the works at Nagymaros pending the completion of various studies
which the competent authorities were to finish before 31 July 1989. On 21 July 1989, the Hungarian
Government extended the suspension of the works at Nagymaros until 31 October 1989, and, in addition,
suspended the works at Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided to
abandon the works at Nagymaros and to maintain the status quo at Dunakiliti.

During this period, negotiations took place between the parties. Czechoslovakia also started investigating
alternative solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a
unilateral diversion of the Danube by Czechoslovakia on its territory some 10 kilometres upstream of
Dunakiliti

In its final stage, Variant C included the construction at Cunovo of an overflow dam and a levee linking that
dam to the south bank of the bypass canal. Provision was made for ancillary works.

Work on Variant C began in November 1991. Discussions continued between the two parties but to no
avail, and, on 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a
Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992,
Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October, proceeded to
the damming of the river.

Issue:

WON the Termination of the treaty is valid

Held:

Precluding wrongfulness can only be accepted on an exceptional basis. The following basic conditions set
forth in Article 33 of the Draft Article on the International Responsibility of States by the International Law
Commission are relevant in the present case: it must have been occasioned by an "essential interest" of
the State which is the author of the act conflicting with one of its international obligations; that interest must
have been threatened by a "grave and imminent peril"; the act being challenged must have been the "only
means" of safeguarding that interest; that act must not have "seriously impair[ed] an essential interest" of
the State towards which the obligation existed; and the State which is the author of that act must not have
"contributed to the occurrence of the state of necessity". Those conditions reflect customary international
law.
The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural
environment in the region affected by the Gabckovo-Nagymaros Project related to an "essential interest" of
that State.
It is of the view, however, that, with respect to both Nagymaros and Gabckovo, the perils invoked by
Hungary, without prejudging their possible gravity, were not sufficiently established in 1989, nor were they
"imminent"; and that Hungary had available to it at that time means of responding to these perceived perils
other than the suspension and abandonment of works with which it had been entrusted.
The Court further notes that Hungary when it decided to conclude the 1977 Treaty, was presumably aware
of the situation as then known; and that the need to ensure the protection of the environment had not
escaped the parties.

The Court infers that, in the present case, even if it had been established that there was, in 1989, a state
of necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely
upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped,
by act or omission to bring it about.

Court finds that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the
Nagymaros Project and on the part of the Gabc�kovo Project for which the 1977 Treaty and related
instruments attributed responsibility to it.

Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and related
instruments

During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the
effectiveness, of its notification of termination. These were the existence of a state of necessity; the
impossibility of performance of the Treaty; the occurrence of a fundamental change of circumstances; the
material breach of the Treaty by Czechoslovakia; and, finally, the development of new norms of international
environmental law. Slovakia contested each of these grounds.

State of necessity
The Court observes that, even if a state of necessity is found to exist, it is not a ground for the termination
of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement
a treaty.

Impossibility of performance
The Court finds that it is not necessary to determine whether the term "object" in Article 61 of the Vienna
Convention of 1969 on the Law of Treaties (which speaks of "permanent disappearance or destruction of
an object indispensable for the execution of the treaty" as a ground for terminating or withdrawing from it).

Fundamental change of circumstances

In the Court's view, the prevalent political conditions were not so closely linked to the object and purpose
of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically
altered the extent of the obligations still to be performed. The same holds good for the economic system in
force at the time of the conclusion of the 1977 Treaty. The changed circumstances advanced by Hungary
are thus, in the Court's view, not of such a nature, either individually or collectively, that their effect would
radically transform the extent of the obligations still to be performed in order to accomplish the Project.

Material breach of the Treaty

Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into
operation of Variant c. The Court pointed out that it had already found that Czechoslovakia violated the
Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing
the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully.
In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature.
No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled
to invoke any such breach of the Treaty as a ground for terminating it when it did.

Development of new norms of international environmental law

The Court notes that neither of the Parties contended that new peremptory norms of environmental law had
emerged since the conclusion of the 1977 Treaty; and the Court will consequently not be required to
examine the scope of Article 64 of the Vienna Convention on the Law of Treaties (which treats of the
voidance and termination of a treaty because of the emergence of a new peremptory norm of general
international law (jus cogens)). On the other hand, the Court wishes to point out that newly developed norms
of environmental law are relevant for the implementation of the Treaty and that the parties could, by
agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles
do not contain specific obligations of performance but require the parties, in carrying out their obligations
to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new
environmental norms into consideration when agreeing upon the means to be specified in the Joint
Contractual Plan. By inserting these evolving provisions in the Treaty, the parties recognized the potential
necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging
norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated
in the Joint Contractual Plan. The awareness of the vulnerability of the environment and the recognition
that environmental risks have to be assessed on a continuous basis have become much stronger in the
years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19
and 20. The Court recognizes that both Parties agree on the need to take environmental concerns seriously
and to take the required precautionary measures, but they fundamentally disagree on the consequences
this has for the joint Project. In such a case, third-party involvement may be helpful and instrumental in
finding a solution, provided each of the Parties is flexible in its position.
Finally, the Court is of the view that although it has found that both Hungary and Czechoslovakia failed to
comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty
to an end nor justify its termination.
In the light of the conclusions it has reached above, the Court finds that the notification of termination by
Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related
instruments.

Dissolution of Czechoslovakia
On that date Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech Republic
and the Slovak Republic came into existence

An examination of this Treaty confirms that, aside from its undoubted nature as a joint investment, its major
elements were the proposed construction and joint operation of a large, integrated and indivisible complex
of structures and installations on specific parts of the respective territories of Hungary and Czechoslovakia
along the Danube.
It concludes that the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial
r�gime within the meaning of Article 12 of 1978 Vienna Convention. It created rights and obligations
"attaching to" the parts of the Danube to which it relates; thus the Treaty itself could not be affected by a
succession of States. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia
on 1 January 1993.

Court has found that the 1977 Treaty is still in force and consequently governs the relationship
between the Parties.
#11 Trail Smelter Arbitration (United States v. Canada)

Brief Fact Summary. The United States (P) sought damages from Canada by suing
them to court and also prayed for an injunction for air pollution in the state of Washington,
by the Trail Smelter, a Canadian corporation which is domiciled in Canada (D).

Synopsis of Rule of Law. The duty to protect other states against harmful acts by
individuals from within its jurisdiction at all times is the responsibility of a state.

Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated
by a Canadian corporation. The resultant effect of from the sulfur dioxide from Trail
Smelter resulted in the damage of the state of Washington between 1925 and 1937. This
led to the United States (P) suit against the Canada (D) with an injunction against further
air pollution by Trail Smelter.

Issue. Is it the responsibility of the State to protect to protect other states against harmful
acts by individuals from within its jurisdiction at all times?

Held. Yes. It is the responsibility of the State to protect other states against harmful act
by individuals from within its jurisdiction at all times. No state has the right to use or permit
the use of the territory in a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein as stipulated under the United States (P)
laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is
responsible in international law for the conduct of the Trail Smelter Company. Hence, the
onus lies on the Canadian government (D) to see to it that Trail Smelter’s conduct should
be in line with the obligations of Canada (D) as it has been confirmed by International law.
The Trail Smelter Company will therefore be required from causing any damage through
fumes as long as the present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or
measure of control shall be applied to the operations of the smelter since it is probable in
the opinion of the tribunal that damage may occur in the future from the operations of the
smelter unless they are curtailed.

Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from
polluting the sea has never been laid at the feet of any country by any international tribunal.
Although regulation of pollution is just commencing, it must ensure that there is equilibrium against
freedom of the seas guaranteed under general and long established rules of international law.
#12 Lake Lanoux Arbitration , France vs Spain

This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees. The French Government
proposed to carry out certain works for the utilization of the waters of the lake and the Spanish
Government feared that these works would adversely affect Spanish rights and interests, contrary to the
Treaty of Bayonne of May 26, 1866, between France and Spain and the Additional Act of the same date.
In any event, it was claimed that, under the Treaty, such works could not be undertaken without the
previous agreement of both parties.

Lake Lanoux lies on the southern slopes of the Pyrenees, on French territory. It is fed by streams which
have their source in French territory and which run entirely through French territory only. Its waters
emerge only headwaters of the River Carol. That river, after flowing approximately 25 kilometers from
Lake Lanoux through French territory, crosses the Spanish frontier at Puigcerda and continues to flow
through Spain for about 6 kilometers before joining the river Segre, which ultimately flows into the Ebro.
Before entering Spanish territory, the waters of the Carol feed the Canal of Puigcerda which is the private
property of that town.

On September 21, 1950, Electricité de France applied to the French Ministry for Industry for a concession,
based on a scheme involving the diversion of the waters of Lake Lanoux towards the River Ariège. The
waters so diverted were to be completely returned into the River Carol by means of a tunnel leading from
the upper courses of the Ariège at a point on the Carol above the outlet to the Puigcerda Canal.

The French Government, however, while accepting the principle that waters drawn off should be
returned, regarded itself as bound only to return a quantity of water corresponding to the actual needs
of the Spanish users.

Consequently, France was going to proceed to develop Lake Lanoux by diverting its waters towards the
Ariege but a certain limited flow of water corresponding to the actual needs of the Spanish frontagers
would be assured at the level of the outlet to the Puigcerda Canal. Spain was opposed to any diversion of
the waters of Lake Lanoux.

The Tribunal examined the Treaty of Bayonne of May 26, 1866 and the Additional Act, as well as the
arguments brought forward by both Governments. Regarding the question whether France had taken
Spanish interests into sufficient consideration, the Tribunal stressed that in determining the manner in
which a scheme had taken into consideration the interests involved, the way in which negotiations had
developed, the total number of the interests which had been presented, the price which each Party had
been ready to pay to have those interests safeguarded, were all essential factors in establishing, with
regard to the obligations set out in Article 11 of the Additional Act, the merits of that scheme.

In conclusion, the Tribunal was of opinion that the French scheme complied with the obligations of Article
11 of the Additional Act. The Tribunal decided that in carrying out, without prior agreement between the
two Governments, works for the utilization of the waters of Lake Lanoux in the conditions mentioned in
the Scheme for the Utilization of the Waters of Lake Lanoux, the French Government was not committing
a breach of the provisions of the Treaty of Bayonne of May 26, 1866, and the Additional Act of the same
date.

In context of the memorial this was used to establish that the mere obligation to enter into consultantion
does not mean consent.
#13 INTERHANDEL CASE (SWITZERLAND V. UNITED STATES)

Forum: International Court of Justice

Year: 1959

Citation: 1959 I.C.J. 6 (Mar. 21)

Facts

The Interhandel case was brought before the Court by Switzerland on October 2nd, 1957 to declare that
the United States was under an obligation to restore its assets which had been vested in the United States
from 1942. In 1946, US and Switzerland entered an agreement called the Washington Accord that the US
will unblock Swiss assets in the US. Interhandel is a Swiss company entered in the Commercial Register of
Basle, but US government thought the company had a connection with Germany. Switzerland claimed
there is no German involvement. The US raised the concern of Switzerland’s failure to exhaust the local
remedies. Switzerland contended that the proceedings at the local court in the US were based on Trading
with the Enemy Act 1917. Switzerland wants assets of Interhandel release and wants the court to declare
US to submit this dispute to arbitration based on Washington Accord treaty.

Issues

Whether the Court had jurisdiction to hear the Swiss claim that the United States must restore the assets
of the Swiss company, Interhandel, which were seized during World War II, considering the United States'
claims that the dispute arose before it had accepted compulsory jurisdiction of the Court.

Whether the Swiss claim was admissible considering that Interhandel had not exhausted local remedies
available to it in domestic courts of the United States.

Judgment – majority

The Court declined jurisdiction because Interhandel’s case was still pending in US court, therefore
Switzerland had not exhausted US domestic remedies. The Court stated that any distinction, so far as the
rule of the exhaustion of local remedies is concerned between the various claims or between the various
tribunals, is unfounded. This is because the interest of the local claim was the basis before the ICJ, the
local claim had induced Switzerland to institute international proceedings. US declaration of accepting
jurisdiction contains stipulation that ICJ cannot take jurisdiction over matters that domestic courts have
jurisdiction over.

Judgment - separate but concurring

In a separate opinion, Judge Hackworth agreed with the Court that Switzerland’s claims to submit the
dispute to arbitration is inadmissible because of the non-exhaustion by Interhandel of its remedies in the
court of the US. Judge Wellington Koo pointed out that the real subject of the dispute before the Court is
the question of the enemy or neutral character of Interhandel and not the restitution of its assets.
Judgment - separate and dissenting

In a dissenting opinion, Judge Winiarski wass unable to concur in the decision of the Court which declared
the claim formulated by the Swiss Government to be inadmissible. He stated that Interhandel’s interest
underlies both the proceedings resumed in the US court and the present international proceedings, and
that interest should determine the scope of the action brought by the Swiss Government in both its
submissions.
14. Case concerning East Timor, Portugal vs Australia ICJ 1995

Facts

a. The International Court of Justice heard this case in 1995, and decided the case by fourteen votes to
two.

b. In the Treaty of 1989 between Indonesia and Australia, the two countries negotiated terms of
agreements regarding the exploration and use of resources by both parties found in the area located
between the south coast of East Timor and the northern coast of Australia known as the “Timor Gap.”
Portugal argues that Indonesia does not have the authority to enter into treaties regarding East Timor
because Portugal is the legal administrative authority as decreed by the Security Council of the United
Nations. Therefore, Australia has proceeded in unlawful actions against Portugal and against the people
of East Timor and their right to self-determination.

c. The Plaintiff in this case is the Portuguese Republic (Portugal) who argues that when Australia signed
the Treaty of 1989 with Indonesia regarding the “Timor Gap,” it did not respect the administrative
authority of Portugal concerning East Timor, and thus, did not respect the right of the people of East Timor
to self-determination.

d. The Defendant in this case is the Commonwealth of Australia (Australia) who asserts that Indonesia is
the legal authority concerning East Timor. Thus, there is no dispute between Portugal and Australia
because Portugal has no standing to bring this case. In addition, the Court does not have jurisdiction in
this case because Indonesia did not give compulsory jurisdiction to the Court. Therefore, it did not give
consent to have matters regarding Indonesia and its territories decided by this Court.

Questions 1. Is there a dispute between Portugal and Australia? 2. Does the Court have the jurisdiction
to decide this case?

Decisions

1. The Court ruled that there was a dispute between Portugal and Australia regardless of whether Portugal
had standing to bring this case. The Court reasoned that because there was a disagreement between facts
and points of law, there was a conflict of legal views and thus, a dispute.

2. The Court declared that it did not have jurisdiction to decide this case. Because the fundamental
question pertinent to this conflict was, “Who possessed the ultimate power to negotiate a treaty
concerning East Timor, Indonesia or Portugal?” the Court would have to decide on matters concerning
Indonesian state and authority. Because Indonesia did not give consent for matters regarding its state,
conflicts, and conduct to be heard to the Court, the International Court of Justice was unable to hear the
case based on Article 35, paragraph 2 of the Court Statute, which states that parties must give consent to
the Court. Principles 1. Jurisdiction is the main international law principle relevant to this case. . 2. Consent
to jurisdiction is an important international law principle that decides this case.

3. The definition of a dispute is when there is disagreement between two parties on facts or the basis of
legal points. Conclusion This case is important because it discusses the importance of jurisdiction in the
Court’s ability to hear and arbitrate a case. This is extremely important in international affairs and
international law when peaceful means of arbitration are sought to settle international disputes. If a state
does not recognize or consent to a court’s authority to decide on an issue, it is logical to conclude that this
state might not abide by the judgments of the court concerning their state affairs. Therefore, peaceful
settlements of disputes between nations could be difficult to achieve
15. Sierra Club vs Morton 405 US 727 (1972)

Facts of the case

The Mineral King Valley was an undeveloped part of the Sequoia National Forest that was mostly used for
mining until the 1920s. In the late 1940s, developers began to make bids on the land for recreational
developments. Walt Disney Enterprises won a bid to start surveying the valley in the hopes of developing
an 80-acre ski resort. The size of the proposed resort would require the construction of a new highway
and massive high voltage power lines that would run through the Sequoia National Forest. The Sierra Club
kept track of this project for years and hoped to stop it to protect the undeveloped land. The Sierra Club
filed preliminary and permanent injunctions against federal officials to prevent them from granting
permits for the development of the Mineral King Valley. The district court granted these injunctions. The
U.S. Court of Appeals for the Ninth Circuit overturned the injunctions on the grounds that the Sierra Club
did not show that it would be directly affected by the actions of the defendants and therefore did not
have standing to sue under the Administrative Procedure Act. Alternatively, the appellate court also held
that the Sierra Club had not made an adequate showing of irreparable injury or likelihood of their success
on the merits of the case.

Question

Did the Sierra Club adequately establish that it had a sufficient stake in the development of the Mineral
King Valley to establish standing for a suit under the Administrative Procedure Act?

Conclusion

The Sierra Club did not have standing to sue under the Administrative Procedure Act (APA) because it
failed to show that any of its members had suffered or would suffer injury as a result of the defendants’
actions. Justice Potter Stewart wrote the opinion for the 4-3 majority, in which the Court held that, in
order to have standing to sue under the APA, the plaintiffs must demonstrate they had directly suffered
an injury as a result of the actions that led to the suit. Although building roads and high voltage power
lines through the wilderness upsets the beauty of the area and the enjoyment of some, such “general
interest” in a potential problem is not sufficient to establish that a plaintiff has been injured in the manner
that standing doctrine requires.

Justice William O. Douglas wrote a dissenting opinion in which he argued that the standing doctrine should
allow environmental organizations such as the Sierra Club to sue on behalf of inanimate objects such as
land. There is precedent for inanimate objects to have legal personality for the purpose of lawsuits, and
“[t]hose who have that intimate relation with the inanimate object about to be injured, polluted, or
otherwise despoiled are its legitimate spokesmen.” In his separate dissenting opinion, Justice Harry A.
Blackmun argued that, when faced with new issues of potentially enormous and permanent
consequences, such as environmental issues, the Court should not be quite so rigid about its legal
requirements. Justice Blackmun proposed two alternatives for how to proceed in this case: either the
Sierra Club’s request for preliminary injunction should be granted while it is given time to amend its
complaint to comport with the requirements of the standing doctrine, or the Court should expand the
traditional standing doctrine to allow this type of litigation. Justice William J. Brennan, Jr. also wrote a
separate dissent in which he agreed with Justice Blackmun regarding the Sierra Club’s standing and argued
that the Court should have considered the case on its merits.

Justice Lewis F. Powell, Jr. and Justice William H. Rehnquist took no part in the consideration or decision
of this case.
16. Tanada vs Angara

Summary: If the Philippines

If signing of the WTO Agreement is unconstitutional on the ground that it violates the Filipino-first policy
of the Consti. Court held:(1) We are not pursuing an isolationist economic policy. The Constitution takes
into account therealities of the outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of equality
ad reciprocity"; 30 and speaks of industries "which are competitive in both domestic and
foreignmarkets" as well as of the protection of "Filipino enterprises against unfair foreign
competitionand trade practices."

Economic nationalism should be read with other constitutional mandates to attain balanced
development of economy (2) Pacta sunt servada, treaty isnt unconstitutional anyway
Facts :
This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement. Petitioners
question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty
associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement
and as viewed by the signatory Senators, a “free market” espoused by WTO.

Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty
and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading
intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Senate in giving its concurrence of the said WTO agreement.

Held:
In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all
nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are
considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith.
A treaty is not a mere moral obligation but creates a legally binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of
commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its
sovereignty right under the “concept of sovereignty as autolimitation.” What Senate did was a valid exercise of authority. As to
determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing
the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of
a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation
if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice.
Petition is DISMISSED for lack of merit.
17. Oil Platforms
(Islamic Republic of Iran v. United States of America)

On 2 November 1992, the Islamic Republic of Iran instituted proceedings against the United
States of America concerning a dispute arising out of the attack on three offshore oil
production complexes. The complexes were owned and operated for commercial purposes
by the National Iranian Oil Company and were destroyed by several warships of the United
States Navy on 19 October 1987 and 18 April 1988. In its Application, Iran contended that
these acts constituted a fundamental breach of various provisions of the Treaty of Amity,
Economic Relations and Consular Rights between the United States and Iran, which was
signed in Tehran on 15 August 1955, as well as of international law. The United States
Counter-Memorial included a counter-claim concerning Iran's actions in the Gulf during
1987-88 which, among other things, involved mining and other attacks on U.S.-flag or U.S.-
owned vessels.

ISSUE: W/N US self-defense is recognizable in international law?

In its Judgment, which is final, without appeal and binding on the Parties, the Court finds
first, by fourteen votes to two, that "the actions of the United States of America against
Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures
necessary to protect the essential security interests of the United States of America under
Article XX, paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular
Rights between the United States of America and Iran, as interpreted in the light of
international law on the use of force", but the Court "cannot however uphold the submission
of the Islamic Republic of Iran that those actions constitute a breach of the obligations of the
United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of
commerce between the territories of the parties, and that, accordingly, the claim of the
Islamic Republic of Iran for reparation also cannot be upheld".
The Court further finds, by fifteen votes to one, that "the counter-claim of the United States
of America concerning the breach of the obligations of the Islamic Republic of Iran under
Article X, paragraph 1, of the above-mentioned 1955 Treaty, regarding freedom of
commerce and navigation between the territories of the parties, cannot be upheld; and
accordingly, that the counter-claim of the United States of America for reparation also cannot
be upheld".

Reasoning of the Court

In its Judgment, the Court, after recalling the history of the proceedings, observes that its
task is to determine whether or not there have been breaches of the Treaty of Amity,
Economic Relations and Consular Rights signed in 1955 between the United States and Iran
and to draw the appropriate consequences therefrom in light of the submissions of the
Parties.
Iran contends that, in attacking and destroying on 19 October 1987 and 18 April 1988 three
offshore oil production complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, the United States violated freedom of commerce between the
territories of the Parties as guaranteed by the Treaty. It seeks reparation for the injury thus
caused. For its part, the United States argues in a counter-claim that it is Iran which violated
the 1955 Treaty by attacking vessels in the Gulf and otherwise engaging in military actions
that was dangerous and detrimental to commerce and navigation between the United States
and Iran. The United States likewise seeks reparation for the injury suffered.
The Court begins by considering whether the actions by American naval forces against the
Iranian oil complexes were justified under the 1955 Treaty as measures necessary to protect
the essential security interests of the United States (Article XX, paragraph 1 (d), of the
Treaty). The Court states that it must interpret that provision of the Treaty in light of the
relevant rules of international law. It accordingly concludes that the United States was only
entitled to have recourse to force under the provision in question if it was acting in a self-
defence. The Court further states that the United States could exercise such a right of self-
defence only if it had been the victim of an armed attack by Iran and makes it clear that, if so,
the United States actions must have been necessary and proportional to the armed attack
against it. After carrying out a detailed examination of the evidence provided by the Parties,
the Court finds that the United States has not succeeded in showing that these various
conditions were satisfied in the present case, and it accordingly concludes that the United
States was therefore not entitled to rely on the provisions of Article XX, paragraph 1 (d), of
the 1955 Treaty.
The Court then examines the issue of whether the United States, in destroying the platforms,
impeded their normal operation, thus preventing Iran from enjoying freedom of commerce
"between the territories of the two High Contracting Parties" as guaranteed by the 1955
Treaty (Article X, paragraph 1). It concludes that, as regards the attack of 19 October 1987,
the Reshadat and Resalat platforms were under repair and not operational and that at that
time there was thus no trade in crude oil from those platforms between Iran and the United
States. Accordingly, in the Court’s view, the attack on those platforms cannot be considered
as having affected freedom of commerce between the territories of the two States. The Court
reaches the same conclusion in respect of the attacks on the Salman and Nasr complexes on
18 April 1988, since all trade in crude oil between Iran and United States had been
suspended as a result of an embargo imposed by an Executive Order adopted on 29 October
1987 by the American authorities. In light of the foregoing, the Court finds that the United
States did not breach its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty
and rejects Iran’s claim for reparation.
In regard to the United States counter-claim, the Court, after rejecting the objections to
jurisdiction and admissibility raised by Iran, considers whether the incidents attributed by
the United States to Iran infringed freedom of commerce or navigation between the
territories of the Parties as guaranteed by Article X, paragraph 1, of the 1955 Treaty. The
Court finds that none of the ships alleged by the United States to have been damaged by
Iranian attacks was engaged in commerce or navigation between the territories of the two
States. Nor does the Court accept the generic claim by the United States that the actions of
Iran had made the Persian Gulf unsafe for shipping, concluding that, according to the
evidence before it, there was not, at the relevant time, any actual impediment to commerce
or navigation between the territories of Iran and the United States. The Court accordingly
rejects the United States counter-claim for reparation.
18. Certain expenses Case

Facts

Two United Nations programs, ONUC and UNEF, were challenged in the International Court of
Justice (ICJ) as improper expenditures of United Nations funds on the ground that they were
performed by the wrong organs of the United Nations, or that they did not further a required
purpose of the organization. Opponents of the programs argued that they were coercive in
nature and should be performed by the United Nations Security Council, rather than the General
Assembly which was carrying them out.

The Soviet Union also claimed that the Suez and Congo expenditures were not "expenses of the
Organization," inasmuch as they were not dealt with exclusively by the Security Council. Since
the General Assembly's power was allegedly limited to discussing, studying, and recommending,
the Soviets argued that it could not impose an obligation to pay the expenses resulting from the
implementation of its recommendations. In analyzing this contention, the court construed relevant
provisions of the Charter" as giving the Security Council primary but not exclusive responsibility
for the maintenance of international peace and security. The Charter was found to have
conclusively demonstrated that the General Assembly was also to be concerned with such
matters.9 In essence, the Court concluded that, absent specific restrictions, the General Assembly
could exercise peace-keeping powers equivalent to those of the United Nations as a whole. In the
present case the only relevant restriction was article 11 (2), which provides that when "action" is
necessary the General Assembly must refer the question to the Security Council. In this context,
the majority interpreted "action" to mean coercive or enforcement action. 10 On the other hand,
the Suez and Congo operations were set up with the consent of the nations concerned and involved
solely peace-keeping functions. Therefore, the-Court concluded that the operations did not
constitute enforcement action prohibited by article 11 (2).
The Court's broad interpretation of the functions and powers of the General Assembly represents
a highly significant development in international law. In effect, legal sanction has been given to a
shift of responsibility for maintenance of peace from the Security Council to the General
Assembly.11 Unfortunately, the opinion was rendered in an advisory capacity and will not have
the binding effect of domestic judgments. Even though the General Assembly has accepted the
majority decision,1 2 total compliance by delinquent members is not assured. Conceivably, a
member two full years in arrears could lose its vote under article 19, but it is not clear whether this
provision is selfexecuting or requires a majority or two-thirds vote. The opinion will be of immense
practical value, however, in influencing the attitudes toward payment and perhaps the votes of
United Nations members