Iran-United States Claims Tribunal

Brief Fact Summary. A suit was filed against Iran (D) in an arbitral tribunal in the Hague by people with
dual Iranian-U.S. citizenship (P) under a claim Settlement Declaration, which was part of the Algiers
Accords reached in the aftermath of the 1979 Iranian seizure of U.S. diplomatic and consular personnel in
Iran (D) as hostages. The jurisdiction of the tribunal was however challenged by Iran.

Synopsis of Rule of Law. If the dominant and effective nationality of the claimant is that of the United
States, then, the Claims Settlement Declaration arbitral tribunal has jurisdiction over claims against Iran by
dual Iran-United States nationals.

Facts. After the 1975 Iranian revolution, Iranian militants seized U.S. diplomatic and consular personnel in
Iran (D) as hostages. In retaliation, the United States seized Iranian assets in the United States, and people
and companies with claims against Iran (D) filed suit in U.S. courts, levying attachments against blocked
Iranian assets. A solution was mediated by Algiers in January 1981 culminating in the Algiers Accord, which
was adopted by both states. Included in the provision of the Algiers’s Accords was a Claims Settlement
Declaration, and created an arbitral tribunal in The Hague to hear claims by the nationals of either state
against the government of the other state. Certain people with dual Iranian-U.S. citizenship (P) brought Iran
(D) before the tribunal and the jurisdiction of the tribunal was challenged by Iran (D).

Issue. If the dominant and effective nationality of the claimant is that of the United States, then, can the
Claims Settlement Declaration arbitral tribunal have jurisdiction over claims against Iran by dual Iran-United
States nationals?

Held. If the dominant and effective nationality of the claimant is that of the United States, then, can the
Claims Settlement Declaration arbitral tribunal have jurisdiction over claims against Iran by dual Iran-United
States nationals?

Discussion. The tribunal closed to new claims by private individuals in 1982. It received approximately
4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting to over $2.5 billion.

Corfu Channel Case (United Kingdom v. Albania)

Brief Fact Summary. The fact that the Albanian (P) authorities did not make the presence of mines in its
waters was the basis of the United Kingdom (D) claim against them.

Synopsis of Rule of Law. International obligations in peace time are created through elementary
consideration.

Facts. The explosion of mines in the Albanian (P) waters resulted in the death of a British naval personnel.
It was on this basis that the United Kingdom (D) claimed that Albania (P) was internationally responsible
for damages.

Issue. Are international obligations in time of peace created through elementary consideration?
Held. Yes. International obligations in peace time are created through elementary consideration. Every
state has an obligation not to knowingly allow its territory to be used for acts contrary to the rights of other
states.

Discussion. In this case, the Court found that the Hague Convention of 1907 could not be applied but the
Convention was applicable only in time of war. It was on the basis of the principle of freedom of maritime
communication that this case was decided.

Case Concerning East Timor

(Portugal v. Australia)
Judgment of June 30, 1995
On 22 February 1991 Portugal had instituted proceedings against Australia concerning "certain activities
of Australia with respect to East Timor". Portugal acted as the administering Power over East Timor in
accordance with Chapter XI of the Charter of the United Nations. Portugal claimed that Australia, by the
conclusion of a Treaty of "Cooperation in an area between the Indonesian Province of East Timor and
Northern Australia of 11 December 1989", had failed to observe the obligation to respect the powers and
duties of Portugal as the administering Power of East Timor, as well as the right of the people of East
Timor to self-determination and the related rights. Australia, according to Portugal's allegations, had
thereby incurred international responsibility vis-à-vis both the people of East Timor and Portugal, which
claimed to have remained the administering Power according to several resolutions of the General
Assembly and the Security Council, even though it had left East Timor definitely when Indonesia invaded
East Timor in 1975. As the basis of jurisdiction Portugal referred to the declarations of both States
according to Art. 36 paragraph 2 of the Statute. Australia objected to the jurisdiction of the Court and the
admissibility of the application. The central issue for the Court was whether the 1989 Treaty could have
been legally concluded between Indonesia and Australia or whether Portugal alone was empowered to
conclude treaties on behalf of East Timor. Thus, the main question was whether the Court could decide
the case in the absence of Indonesia which had not accepted the jurisdiction of the Court and was not
inclined to intervene in the case.
Australia argued that the Court was confronted with a situation comparable to that in the Monetary Gold
Case, namely that the Court would have to decide on the lawfulness of Indonesia's entry into and
continuing presence in East Timor as well as the lawfulness of the conclusion of the Treaty, what could
not be done in the absence of Indonesia. While Portugal agreed in principle on this point, it disagreed that
the Court had in fact to decide on the forementioned questions. Portugal argued that the Court had only
to judge upon the objective conduct of Australia, which consisted in having negotiated, concluded and
initiated performance of the 1989 Treaty with Indonesia, and that this question was perfectly separable
from any question relating to the lawfulness of the conduct of Indonesia.
In its judgment, however, the Court concluded that Australia's behaviour could not be assessed without
first entering into the question of why Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so. The Court was of the opinion that the very subject-matter of the
decision would necessarily be a determination of whether Indonesia could or could not have acquired the
power to conclude treaties on behalf of East Timor relating to the resources of its continental shelf. Such
a determination, however, could not be made without the consent of Indonesia.
The Court also rejected Portugal's additional argument that the rights which Australia had allegedly
breached were rights erga omnes and as such permitted Portugal to sue Australia individually, regardless
of whether or not another State had conducted itself in a similarly unlawful manner. The Court fully shared
the assertion of Portugal that the right of peoples to self-determination had an erga omnes character.
Nevertheless, the Court considered that the erga omnes character of a norm and the principle of consent
to the Court's jurisdiction were two different things. Whatever the nature of the obligations invoked, the
Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an
evaluation of the lawfulness of the conduct of another State not a party to the case.
The Court likewise dismissed the argument of Portugal that the United Nations resolutions concerning the
status of Portugal as administering Power were imposing upon all States an obligation not to recognize
any authority of Indonesia over East Timor. The Court found that without prejudice to the question of the
binding or non-binding nature of these resolutions such an obligation could not be inferred from those
resolutions. Therefore, the Court would have necessarily to rule upon the lawfulness of Indonesia's
conduct as a prerequisite for deciding Portugal's contention that Australia violated its obligation to respect
Portugal's status as administering Power and East Timor's status as a non-self governing territory and the
right of 7its people to self-determination and to permanent sovereignty of its natural resources. Thus, the
rights and obligations of Indonesia would constitute the very subject-matter of the case and could only be
judged with the consent of Indonesia. Since this consent was lacking, the Court had to dismiss the case,
despite the importance of the questions raised.