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Aspects of the Case concerning United States Diplomatic and Consular Staff in Tehran*
Published online by Cambridge University Press: 07 July 2009
Extract
The events which provide the backdrop to the “Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)” are clear and undisputed. They involve the violent occupation of the American Embassy in Tehran, and of the consulates in Tabriz and Shiraz. The occupation of the Embassy on 4 November 1979 led to the Embassy personnel and two other American citizens, a teacher and a businessman, being taking hostage, and subsequently to demands being addressed to America (e.g., for the extradition of the Shah and the return of his wealth) under the threat that failure to comply would result in the hostages being put on trial as spies.
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References
1. A somewhat more extensive account can be found in sections 14–16 of the Judgment.
2. Verbatim Record, Public Sitting held on Wednesday, 19 March 1980, CR 80–2 pp. 60–1. Cf., the account in section 15 of the Judgment. This literal report is further referred to by means of the following references CR 79–1 (10 December 1979), CR 80–1 (18 March 1980) and CR 80–2 (19 March 1980). The documents used by the present author were headed, “Uncorrected”.
3. The text is included in the Order of 15 December 1979, ICJ Reports 1979 pp. 10–1.
4. CR 80–2 p. 60.
5. There are, apart from in regional law, only a few cases in which states do not have this right of auto-interpretation. An example of the right of auto-interpretation being taken away is provided by Art. 25 of the UN Charter. This is concerned with Security Council decisions. The members of the UN have committed themselves “to accept and carry out the decisions of the Security Council in accordance with the Charter”. The express mention of the obligation “to accept”, deprives the members of the right to refuse to carry out the decisions because they have been taken in contravention of the Charter. The rule that the decisions must be “in accordance with the Charter” is a rule directed at the Security Council, for the exclusive interpretation of the Security Council.
It is well known that auto-interpretation also occurs when the “principal organs” of the UN establish their powers. Where individuals act as legal subjects in international law, the question of fixing their international law rights and duties is more complicated. According to the law of Nuremberg and Tokyo, the individual person is obliged to reject the interpretation given by his government, even where this appears in a national law or an order, if this interpretation would, in his opinion, amount to an order to commit an offence under international law. That is the revolutionary significance of the pronouncement of the Nuremberg Court: “the very essence of the Charter [upon which the Court's jurisdiction was based] is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law”.
It is very significant that the Nuremberg principles were accepted by the General Assembly of the United Nations (See, Resolution 95 I of 12 December 1946).
6. CR 80–2 p. 24.
7. CR 80–1 p. 27.
8. CR 80–2 p. 15.
9. Mr. Owen had said: “in 1917 the American Minister to Guatemala was briefly detained by the Guatemalan police. In that case, however, the President of Guatemala immediately apoligized and issued orders that the officers involved be punished. Similarly, in 1932, when the American Minister in Ethiopia was attacked by police officers, the Ethiopian Government brought about the prosecution of the officers and gave broad publicity to the resulting sentences”. CR 80–2 pp. 30–1.
10. Judgment No. 2, 1924. PCIJ Series A No. 2, 1924 p. 11.
11. Boulding, K., Conflict and Defence, A General Theory (New York 1962) p. 5.Google Scholar
12. The PCIJ defined the difference as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (PCIJ Series A No. 2, 1924 p. 11).
13. South West Africa Case, ICJ Reports 1962 pp. 566–7.
14. PCIJ Series A, No. 6, 1925 p. 14.
15. See also, his further explanations in his dissenting opinion in the Advisory Opinion of 1971, ICJ Reports 1971 pp. 219–332, at p. 313 et seq.
16. ICJ Reports 1962.
17. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 p. 24.
18. The decision as to whether there is a “dispute” has legal significance in connection with the right of the parties to participate in the discussions of the Security Council (Art. 32, Charter), and the rule that a party to a dispute may not vote in the Security Council in connection with decisions relating to Chapter VI (Art. 27, Charter). The question is also of importance in relation to the right of parties to be invited to choose a judge (Art. 31, Statute); this can in fact give rise to the question whether an advisory request concerns “a legal question actually pending between two or more states” (Arts. 82 and 83, Rules of the Court). The views on conflicts expressed here are taken from the article of the present author: “Uitdaging en antwoord in de internationale relaties. Een polemologische analyse” in Couwenberg, , ed., Tijdsein. Peiling en perspectief van onze tijd (Alphen aan den Rijn 1972) pp. 189–208, at pp. 189-91.Google Scholar
19. ICJ Reports 1979 p. 16 para. 25.
20. Aegean Sea Continental Shelf Case, ICJ Reports 1978 p. 12.
21. Interview in Time, European Edition, January 1980 p. 17.
22. 74 AJIL (1980) pp. 411–7.