1 Judge Morozov, writing from a perspective admittedly somewhat distant from the author’s, commented: “The situation in which the Court has carried on its judicial deliberations in the current case has no precedent in the whole history of the administration of international justice either before this Court, or before any international judicial institution.” Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), [1980] ICJ Rep. 3, 53 (Morozov, J., dissenting) (emphasis in original). The decision is reprinted in 74 AJIL 746 (1980), 19 ILM 553 (1980).

2 Id., paras. 93 and 94. Earlier in the opinion (para. 32), the Court had summarized the facts of the rescue mission based on information provided by the United States in response to the Court’s request. Id., para. 32.

3 Id., para. 93.

4 Ibid.

5 In Resolution 457, adopted on Dec. 4, 1979, the Council “[u]rgently” called upon Iran “to release immediately the personnel of the Embassy of the United States of America being held in Teheran, to provide them protection and to allow them to leave the country.” The Council reiterated this call in paragraph 3 of Resolution 461 of Dec. 31, 1979.

6 In paragraph 47(1)(A)(ii) of its Order of Dec. 15, 1979, the Court indicated that pending a final decision in the case, the

Government of the Islamic Republic of Iran should ensure the immediate release, without any exception, of all persons of United States nationality who are or have been held in the Embassy of the United States of America or in the Ministry of Foreign Affairs in Tehran, or who have been held as hostages elsewhere, and afford full protection to all such persons, in accordance with the treaties in force between the two States, and with general international law.

[1979] ICJ Rep. 7, para. 47(1)(A)(ii). The Order is reprinted in 74 AJIL 266 (1980), 19 ILM 139 (1980).

7 [1980] ICJ Rep. 3, para. 94. The Court thus left to another day, a day that one suspects will never come, a definitive statement of its views regarding the law governing the use of force in defense of the lives of nationals abroad. The question has long been the subject of sharp controversy, both among states and learned commentators. The authorities are exhaustively canvassed in Dr. Brownlie’s classic work, I. Brownlie, International Law and the Use of Force by States 289–301 (1963), and have more recently been reviewed in connection with the Entebbe and Mayaguez affairs; see, e.g., Friedlander, , Mayaguez in Retrospect: Humanitarian Intervention or Showing the Flag , 22 St. Louis U.L.J. 601 (1979)Google Scholar; Murphy, , State Self–Help and Problems of Public International Law , in Legal Aspects of International Terrorism 553 (Evan, A. & Murphy, J. eds. 1978)Google Scholar; Paust, , Entebbe and Self–Help: The Israeli Response to Terrorism , 2 Fletcher F. 86 (1978)Google Scholar; Paust, , The Seizure and Recovery of the Mayaguez , 85 Yale L.J. 774, 800–02 (1976)Google Scholar. Notably, the President of the Court, Sir Humphrey Waldock, had in his 1952 lectures at the Hague Academy opined that the use of force in defense of the lives of nationals abroad was permissible in carefully defined circumstances. Waldock, , The Regulation of the Use of Force by Individual States in International Law , 81 Recueil Des Cours 455, 467, 503 (1952 II)Google Scholar. Ironically, Sir Humphrey’s example of a situation justifying the use of force, suggested by the Abadan oil incident, was the complete breakdown of law and order in Iran resulting in an imminent threat of death or serious injury to foreign nationals. Id. at 503.

8 As noted above, the Court in the Hostages case did not make any finding as to the lawfulness per se of the rescue attempt; however, certain aspects of the May 24 Judgment contain tantalizing suggestions that the category of “armed attacks” under Article 51 of the UN Charter extends well beyond major armed assaults. At two points in the Judgment, the Court termed the takeover of the Embassy an “armed attack.” [1980] ICJ Rep. 3, paras. 57 and 91. It is possible, of course, that the Court used this phrase in a purely descriptive sense; at other points in the Judgment, the Court referred simply to an “attack” (e.g., paras. 17, 24, and 25) or “assault” (para. 18). Still, the Court could hardly have been unaware of the significance of the phrase “armed attack.” The Court, in fact, had taken specific note of the assertion by the United States, in its report to the Security Council on the rescue attempt, that the mission had been carried out “in exercise of its inherent right of self–defence with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on our Embassy.” Id., para. 32.

The significance of the Court’s repeated choice of phrase is underlined by the contrary position urged by Judge Morozov:

I consider that, without any prejudice to the above–mentioned exclusive competence of the Security Council, the Court, from a purely legal point of view, could have drawn attention to the undeniable legal fact that Article 51 of the Charter, establishing the right of self–defence, may be invoked only “if an armed attack occurs against a Member of the United Nations”. It should have added that in the documentation officially presented by the United States to the Court in response to its request relating to the events of 24–25 April 1980 there is no evidence that any armed attack had occurred against the United States.

Id. at 56–57 (Morozov, J., dissenting). Judge Tarazi appears to have held a similar view. Id. at 64–65 (Tarazi, J., dissenting).

If, indeed, the Court’s references to “armed attack” were studied rather than casual, operations such as the rescue mission are lawful not because the right of self–defense under the UN Charter is coextensive with the preexisting customary law right of self–defense, which extended beyond defense against “armed attack” (see, e.g., D. Bowett, Self–Defense in International Law 185–86 (1958); M. Mcdougal & F. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 232–41 (1961)), but because the right of self–defense against armed attack has arisen.

9 [1980] ICJ Rep. 3, para. 93.

10 Id., para. 94.

11 This is true whether the reference to the Court’s “findings” is understood to relate solely to the operative paragraph of the Judgment or to portions of the reasoning as well.

For a discussion of the related question whether the “decision” of a tribunal for purposes of a request for interpretation includes both the dispositif and key elements of the tribunal’s reasoning, see Delimitation of the Continental Shelf, Decision of 14 March 1978 (Interpretation of the Decision of 30 June 1977) (UK–France), 54 ILR 139, 166–71, 18 ILM 462 (1979).

12 [1980] ICJ Rep. 3, para. 95(1). The Court had not hesitated in the body of its opinion to evaluate Iran’s conduct subsequent to the Nov. 4 takeover, and indeed subsequent to the date on which the Application was filed. See, e.g., id., paras. 74 and 75.

13 In operative subparagraphs 3 and 4 of the dispositif, the Court unanimously decided that the Government of Iran must “terminate the unlawful detention” of the hostages and “entrust them to the protecting Power”; ensure that they “have the necessary means of leaving Iranian territory”; place the “premises, property, archives and documents” of the U.S. Embassy and Consulates in Iran in the hands of the Protecting Power; and not subject any member of the U.S. diplomatic or consular staff to “any form of judicial proceedings or to participation] in them as a witness.” Id., para. 95.

14 Id., para. 95(5). Judges Morozov, Tarazi, and Lachs dissented from this finding. The basis for Judge Morozov’s and Judge Tarazi’s dissents is discussed infra in text at notes 15–21. Judge Lachs felt that subparagraph 5 was redundant in view of subparagraph 2, which declared that Iran’s international responsibility had been engaged by its violations of obligations owed to the United States. Id. at 47 (Lachs, J., sep. op.).

15 Aug. 15, 1955, 8 UST 899, TIAS No. 3853. The most important of the claims made under the Treaty was that Iran had violated its obligation under Art. 11(4) to afford U.S. nationals in Iran “the most constant protection and security” and to assure them reasonable and humane treatment while in custody. The applicability of the Treaty was of particular importance in respect of the two hostages not entitled to immunity under the Vienna Conventions. The Court upheld the claims of the United States under the Treaty. [1980] ICJ Rep. 3, paras. 50–54, 67, 77, 80, and 90.

16 Id. at 52 (Morozov, J., dissenting). Judge Morozov did not specify the “commonly recognized principles of international law” to which he referred. These principles evidently were not “commonly recognized” even by the majority of the Court. In an apparent reply to Judge Morozov, the majority stated:

The point has also been raised whether, having regard to certain counter–measures taken by the United States vis–à–vis Iran, it is open to the United States to rely on the Treaty of Amity, Economic Relations, and Consular Rights in the present proceedings. However, all the measures in question were taken by the United States after the seizure of its Embassy by an armed group and subsequent detention of its diplomatic and consular staff as hostages. They were measures taken in response to what the United States believed to be grave and manifest violations of international law by Iran, including violations of the 1955 Treaty itself. In any event, any alleged violation of the Treaty by either party could not have the effect of precluding that party from invoking the provisions of the Treaty concerning pacific settlement of disputes.

Id., para. 53. The holding that Iran’s obligations survived the imposition of sanctions by the United States is one of general importance in the law governing self–help and judicial remedies for responses to breaches of conventional obligations. See generally Damrosch, , Retaliation or Arbitration—or Both? The 1978 United States–France Aviation Dispute , 74 AJIL 785 (1980)Google Scholar.

17 [1980] ICJ Rep., at 53 (Morozov, J., dissenting).

18 Ibid.

19 It appears that Judge Morozov was under the misapprehension that such legislation had in fact been introduced. See id. at 54. In fact, no legislation on claims and the disposition of Iranian assets was ever introduced, although considerable staff work had been done by the time of the Court’s May 24 Judgment.

20 Id. at. 65 (Tarazi, J., dissenting). Judge Tarazi stated an additional condition on his assent to a finding that Iran was internationally responsible. For Judge Tarazi, any finding of responsibility had to be “relative not absolute,” ibid., which meant taking into account the entire history of U.S.–Iran relations during the regime of the Shah. Id. at 60–63.

The Court did consider the relevance of this history to the case. The Court held first that allegations of improper U.S. interference in Iranian affairs could not be accepted without proof, id., para. 82; and second that proof of such interference would not in any case constitute a defense to the claims made by the United States in the case, id., paras. 83–89. It is important to note, however, that the Court did not entirely exclude the possibility that “some of the circumstances alleged, if duly established, may later be found to have some relevance in determining the con sequences of the responsibility incurred by the Iranian State with respect to that conduct [the seizure of the Embassy and detention of the hostages], although they could not be considered to alter its unlawful character.” Id., para. 89. Apparently this concession did not go far enough to satisfy Judge Tarazi’s insistence that international responsibility must be viewed in relative terms.

21 Id. at 63–65 (Tarazi, J., dissenting).

22 J. Oswald, Contempt of Court 6 (3d ed. 1910). American sources also use language closely paralleling the Court’s. See generally 17 Am. Jur. 2d, Contempt, §3 (1964) (“Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrespect or disregard . . . is guilty of contempt”).

23 Attorney–General v. Times Newspaper, Ltd., [1974] A.C. 273, 307 (Diplock, L.J.).

24 Nuclear Tests Case (Australia v. France), [1973] ICJ Rep. 99.

25 The history of the episode and of the Court’s efforts to determine the source of the leak, if there was one, is recounted in a resolution adopted by the Court on March 21, 1974. [1973–74] Y.B. ICJ 127. Additional material may be found in the Comments by the President, 2 Nuclear Tests Cases, ICJ Pleadings 406–08 (1978), and in the opinions by Judge Lachs, [1974] ICJ Rep. 253, 273 (Lachs, J., dec), and Judge Gros, id. at 293–96 (Gros, J., dissenting).

26 Resolution of March 21, 1974, supra note 25, para. 4.

27 Id, para. 5.

28 [1974] ICJ Rep. at 273 (Lachs, J., dec).

29 Ibid.

30 Id. at 295 (Gros, J., dissenting).

31 Id. at 296.

32 Barcelona Traction, Light & Power Co., Ltd., [1970] id. at 3, 30–31. Judge Fitzmaurice’s separate opinion makes plain that the Court was responding to the charge that its proceedings were unduly slow and cumbersome. While Judge Fitzmaurice understood that counsel often needed extended periods to prepare a case, “[sjtrong objection exists however when the blame . . . is publicly ascribed to the supposed dilatoriness or procrastination of the Court itself . . . in evident ignorance or else heedlessness, of the true facts.” Id. at 113 (Fitzmaurice, J., sep. op.). Interesting in light of our present inquiry is Judge Fitzmaurice’s express recognition of the relationship between such charges and respect for the Court: “Nor is this by any means the only way in which the Court has been misrepresented in a manner detrimental to the dignity and good order of its functioning as an independent judicial institution.” Ibid.

33 Id. at 31.

34 [1949] ICJ Rep. 4.

35 Id. at 34.

36 Id. at 35.

37 See Pekelis, , Legal Techniques and Political Ideologies: A Comparative Study , 41 Mich. L. Rev. 665, 667–77 (1943 Google Scholar. In the proceedings before the European Court of Human Rights in the Sunday Times case, the United Kingdom argued that because the institution of contempt of court was peculiar to the common law countries, the proper scope of international review by the European Court was quite narrow. The European Court, while rejecting the conclusion drawn by the United Kingdom, did not contest the validity of the premise that the institution of contempt “has no equivalent in many other Member States of the Council of Europe.” Sunday Times Case, 58 ILR 491, 531 (Eur. Ct. Human Rights 1979). The joint dissenting opinion, signed by nine judges, agreed that contempt is “peculiar to the legal traditions of the common–law countries.” Id. at 540.

38 Pekelis, supra note 37, at 668.

39 See, e.g., Newman, , The General Principles of Equity , in Equity in the World’s Legal Systems: A Comparative Study 589, 612 (Newman, R. ed. 1973)Google Scholar; Szladits, , The Concept of Specific Performance in Civil Law , 4 Am. J. Comp. L. 208, 218–20, 228 (1955)Google Scholar.

40 Professor Dawson notes the absence in France of body attachment as a means of coercing compliance with court orders, but demonstrates that the situation is not at all the same in Germany. Dawson, , Specific Performance in France and Germany , 57 Mich. L. Rev. 495, 516, 533–38 (1959)Google Scholar. It is important to keep this distinction in mind, for it suggests that the peculiarity of even the civil contempt notion is exaggerated by emphasis on the French system. Cf. Pekelis, supra note 37, at 666 (noting that he is focusing on law in the Latin countries of Europe).

41 The tortured historical development of the astreinte in France illustrates this in a perverse way. Despite resistance from the highest French courts and from writers of authority, the lower courts, responding to a continuing felt need for a frankly coercive sanction, made several attempts to use the astreinte for this purpose. See Dawson, supra note 40, at 512–25. More recently, the coercive use of the astreinte has apparently been accepted as legitimate even by the Cour de Cassation; nevertheless, some scholars retain doubts about its legality. See Herzog, P., Civil Procedure in France 561, 563–64 (1967)Google Scholar.

In many countries, failure to comply with court orders is itself a penal offense. See, e.g., the West German Penal Code, §137; the Italian Penal Code, Arts. 334 and 388; the Norwegian Penal Code, Arts. 343 and 344; the Polish Criminal Code, Arts. 258 and 259; the Romanian Penal Code, Art. 271; the Swedish Penal Code, ch. 17, §13; and the Turkish Criminal Code, §309 (trans, in 4, 23, 3, 19, 20, 17, and 9 American Series of Foreign Penal Codes, respectively (1961–78)).

Interestingly, it is not only modern systems that have reinforced the authority of judicial decisions by attaching criminal penalties to noncompliance. See Deuteronomy 17:8–13; and for comment on this passage, Schreiber, A., Jewish Law and Decision–Making: A Study Through Time 53 (1979)Google Scholar.

42 Borrie, G. & Lowe, N., The Law of Contempt 35–129, 153–74, 205–52 (1973)Google Scholar. I refer here only to so–called “constructive” or “indirect” contempts not occurring in the presence of the judge. For a discussion of direct contempt, see id. at 5–34.

The American law of contempt is reviewed by Dobbs, , Contempt of Court: A Survey , 56 Corn. L. Rev. 183 (1971)Google Scholar. Professor Dobbs offers a similar catalog of circumstances where American courts have held persons in contempt. Id. at 185–219.

43 C. Pen. Art. 227 (prejudgment publications designed to exert pressure on witnesses or judges); id. Art. 222 (words, writings, or drawings tending to impugn honor or dignity of judges or jurors); id. Art. 223 (gestures or threats to judge or juror in performance or because of performance of duties); id. Art. 365 (subordination of perjury); id. Art 224 (gestures, threats, or drawings aimed at ministerial officers, commandants, or agents of the public force in performance of or because of performance of duty).

44 The following are offered as examples without any pretense to exhaustiveness or to system: the Argentine Penal Code, Arts. 237, 257, and 275–276; the Austrian Penal Act, §§104, 105, 199, and 312; the Greek Penal Code, Arts. 167, 224, 228, and 237; the Greenland Criminal Code, §§16, 17, 27, 31–32, and 35–36; the South Korean Criminal Code, Arts. 129–133, 136, 152, and 154; the Norwegian Penal Code, §§111–114, 127, 128, and 163–167; the Polish Penal Code, Arts. 233, 235, 239, 241, 247, and 253; and the Turkish Criminal Code, Arts. 211–214, 216–217, 219– 221, 232, 233, 255, 286–287, 290, and 291 (trans, in 6, 12, 18, 16, 2, 3, 19, and 9 American Series of Foreign Penal Codes, respectively (1960–73)).

Even in common law systems, some serious interferences with the judicial process may be punishable only as an ordinary offense, but not as contempt. Thus, in federal court in the United States perjury alone will not constitute a contempt. See In re Michael, 326 U.S. 224 (1945). But perjury is, of course, punishable and that fact, rather than the procedure by which punishment is imposed, is critical for present purposes.

45 C. Pen. Art. 227. The translation follows French Law: Constitution and Selective Legislation 8–25 (DeVries, H., Galston, N., & Loening, R. eds., 1981)Google Scholar.

46 In addition to the statutes cited in note 41 supra pertaining to noncompliance with judicial orders, a number of countries penalize conduct disrespectful to the authority of the judiciary. See the Argentine Penal Code, Art. 244; the Italian Penal Code, Art. 342; the Romanian Criminal Code, Art. 239; and the Turkish Criminal Code, Art. 268 (trans, in 6, 23, 20, and 9 American Series of Foreign Penal Codes, respectively (1963–78)).

47 See text infra at notes 48–52.

48 See Ungarisches Erdgas A.G. v. Etat roumain, 5 Trib. Arb. Mixtes 951, 955 (1925).

49 See Friedman Case, U.S.-German Mixed Claims Comm’n, Consol. Ed. of Dec. & Opin. 607, 613 (1925); E. Dumbauld, Interim Measures of Protection in International Controversies 182 (1932); cf. K. Carlston, The Process of International Arbitration 53–61 (1946) (party’s right to a tribunal free from corruption and to proceedings free from fraud).

50 A litigant may not, therefore, rely on falsified documents or tamper with witnesses before the tribunal, conduct that the commentators are unanimous in considering a basis for nullity of the award. See W. Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards 37, 483, 494–95 (1971); B. Cheng, General Principles of Law 158–60 (1953); K. Carlston, supra note 49, at 57–61. Nor may a litigant withhold from the tribunal reasonably available evidence relevant to decision of the case. See D. Sandifer, Evidence Before International Tribunals 112–18, 147–62 (rev. ed. 1975); C. Jenks, The Prospects of International Adjudication 424–25 (1964); W. Reisman, supra, at 593–603. The Corfu Channel Case, [1949] ICJ Rep. at 35, suggests, in addition, that a litigant may not gather evidence by improper means, in particular by the use of force.

51 A litigant may not corrupt a member of the tribunal, see K. Carlston, supra note 49, at 53– 57; violate the secrecy of judicial deliberations, see the discussion of the episode in the Nuclear Tests cases in text at notes 24–31 supra; or induce a court functionary to violate his duties to the court, ibid.; see especially [1974] ICJ Rep. 253, 295 (Gros, J., dissenting).

52 Cf. Barcelona Traction, Light & Power Co., Ltd., [1970] ICJ Rep. at 31 (suggesting that the Court would not tolerate deliberately dilatory tactics).

53 Comm. of Jurists on the Statute of the Permanent Court of International Justice, League of Nations Doc. C.166.M.66.1929.V, at 64 (minutes of the session held at Geneva, March 11–19, 1929).

54 Electricity Co. of Sofia & Bulgaria, [1939] PCIJ, ser. A/B, No. 79, at 199. Cf. Nuclear Tests Case, [1973] ICJ Rep. at 106 (no action to be taken which could “prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case”); Fisheries Jurisdiction Case, [1972] ICJ Rep. 12, 17 (same).

55 E. Dumbauld, supra note 49, at 28 n.1.

56 As one of the leading students of the Court has said:

1 Rosenne, S., The Law and Practice of The International Court 91 (1965)Google Scholar.

57 The International Law Commission in its study of state responsibility has recently reaffirmed the existence in customary international law of a right to take reprisals not involving the use of force. [1979] 2 Y.B. Int’l L. Comm’n 115, UN Doc. A/CN.4/SER.A/1979/Add.1, pt. 2. The commentary to Article 30 of the Commission’s draft articles contains a wealth of source material on the question of reprisals. Id. at 115–22.

58 Dumbauld properly related the restraints on the right to take reprisals to the tribunal’s authority to indicate interim measures of protection:

The law does not always speak with such a clear voice that bona fide differences of opinion are rendered impossible. Until it has been approved and established by a judicial decision having force of res judicata, no party is obliged to accept his opponent’s view of the law as correct. Is he free to act upon his own view as correct, or must he act upon the assumption that his opponent may possibly be right? The former alternative applies in the absence of provisions authorizing interim protection; the latter if the law has introduced such remedies.

E. Dumbauld, supra note 49, at 28 (footnote omitted). For further development of the relation between interim measures of protection and the obligation to refrain from coercive measures pendente lite, see text infra at notes 84–90.

59 Under subparagraph 4, the Court decided that “no member of the United States diplomatic and consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.” [1980] ICJ Rep. 3, para. 95. No similar exemption for other U.S. nationals was provided.

60 It is true, of course, that the United States would have been reluctant to comply with such a directive even had the hostages initially been released in response to the Court’s interim measures Order. Still, the United States would have found it significantly more difficult to comply with a decision requiring return of some of the hostages if their release from captivity had been accomplished by military rather than judicial means. Had the hostages initially been released in response to the Court’s Order, a pattern of compliance with authoritative decisions would have been created which the United States would have been very reluctant to upset.

61 [1980] ICJ Rep. at 63–65 (Tarazi, J., dissenting).

62 Id. at 63.

63 In particular, he took exception to legislation to compensate the hostages from Iranian assets, which he felt “constituted an encroachment on the functions of the Court, for until the Court has ruled upon the principle of reparation the applicant State is not entitled to consider that its submissions, or part of them, have already been accepted and recognized as well founded.” Id. at 64. Such legislation also raised the possibility of a conflict between the requirements of domestic law and the Court’s ultimate judgment, a conflict that would prejudice the ability of the United States to comply with the judgment. Ibid.

The problem to which Judge Tarazi referred was recognized by lawyers working on the draft legislation. The legislation could have been structured to avoid any such conflict, for example, by giving the President a purely discretionary authority to vest Iranian assets for a variety of purposes including satisfying an actual award of reparations by the Court. While the President had authority under the International Emergency Economic Powers Act, 50 U.S.C. §§1701–1706 (Supp. II 1978), to block Iranian assets, new legislation would have been necessary to authorize vesting for any purpose. See Dames & Moore v. Regan, 101 S.Ct. 2972, 2983 n.5 (1981).

64 [1980] ICJ Rep. at 64 (Tarazi, J., dissenting).

65 Id. at 48 (Lachs, J., sep op.).

66 Id. at 56 (Morozov, J., dissenting). Judge Morozov also objected to the claims legislation, complaining that the United States was acting “as judge in its own cause” in making arrangements to compensate the hostages. Id. at 54.

67 The United States left no doubt in its oral presentation to the Court that American reluctance to go forward with the case in February was motivated by the desire to avoid taking any action that might prejudice the success of the Secretary–General’s Commission of Inquiry whose activities, it was hoped, would lead to a resolution of the crisis. Once the Commission effectively had ceased to function, there was no further need to delay the proceedings before the Court, and the United States therefore urged the Court to proceed with maximum expedition. (The official text of the oral argument has not as yet been published by the Court. However, an excerpted version containing the whole presentation by Roberts B. Owen, United States Agent, and a summary of the presentation by Stephen Schwebel, Deputy Agent, has been published by the Department of State. U.S. Presses Case in World Court on American Hostages in Iran, Dep’t State Bull., No. 2038, May 1980, at 36 [hereinafter cited as Oral Argument Excerpt]. Owen’s statement linking the request for deferral to the Commission’s efforts may be found in id. at 56, 59–60.)

The Court did not take exception either to the activities of the Commission or to the change in U.S. preferences consequent upon its failure. To the contrary, both in its conduct of the case and in the text of its Judgment, the Court amply and properly took account of the possibility that alternative processes of dispute settlement could parallel proceedings in the Court. The Court held that neither the fact that the Security Council was actively seized of the hostage problem, nor that the Secretary–General was employing his good offices with a view towards its resolution, nor even that a special Commission of Inquiry had been established, affected either its competence or the admissibility of proceedings. [1980] ICJ Rep. 3, paras. 40–44.

68 The UN Charter itself envisions the possibility of noncompliance by providing for Security Council enforcement of judgments of the Court. UN Charter art. 94(2). The record of noncompliance with decisions of the Court, including disregard of interim measures orders and advisory opinions, is reviewed in Janis, , The Role of the International Court in the Hostages Crisis , 13 Conn. L. Rev. 263, 283–84 (1981 Google Scholar.

69 In fact, the United States had a number of legitimate objectives in pursuing the case long after it became apparent that Iran would not comply with an adverse decision. Chief among these was judicial affirmation of the importance and continued vitality of the norms of diplomatic intercourse. Other objectives were also significant. For example, the United States sought to obtain a binding decision that the Treaty of Amity continues in force, a point of some potential importance in eventual proceedings before an international claims tribunal. Finally, the Court’s Judgment was a necessary step in establishing an unassailable basis for compensating the hostages or their families from Iranian assets. For a detailed analysis of the objectives the United States was pursuing in the Court, see Gordon, & Youngblood, , The Role of the International Court in the Hostages Crisis—A Rejoinder , 13 Conn. L. Rev. 429 (1981)Google Scholar.

70 The Court’s Judgment might well have been delivered before the rescue mission had it not been for the delay requested by the United States.

71 Steps taken by the United States subsequent to the oral proceedings included breaking off diplomatic relations with Iran, prohibiting exports to Iran, preparing an inventory of blocked Iranian assets and a census of outstanding claims with a view to legislation to facilitate processing and payment of such claims, restricting payments to Iran, and prohibiting travel to Iran. 16 Weekly Comp. of Pres. Doc. 611–12 (April 14, 1980). The Court took note of these measures. [1980] ICJ Rep. 3, para. 31.

72 [1980] ICJ Rep. at 52 (Morozov, J., dissenting). The passage in the majority opinion that appears to have inspired this characterization is found in paragraph 53 of the opinion. Id., para. 53.

The distinction between responsive measures lawful in themselves (“retorsion”) and measures lawful only as responses to prior violations of legal right (“reprisal”) is neither relevant nor helpful in the present context. The point made in the text is that pursuit of judicial remedies excludes efforts to resolve the dispute by the use of power. Whether the particular employment of power would be lawful or unlawful in any other context is not of great consequence.

The United States had considerable difficulty determining how to characterize some of its own actions during the crisis. The assets freeze, probably the most severe deprivation visited upon Iran, was initially justified as a protective measure taken in response to Iran’s threat to repudiate its obligations to U.S. nationals and withdraw its assets from U.S. financial institutions. Subsequently, the freeze was justified as a response to Iran’s unlawful detention of the hostages. In oral argument to the Court, the United States invented a new category to describe the assets freeze, “a justified, prudent, and proportional measure of restraint in the circumstances.” Oral Argument Excerpt, supra note 67, at 56.

For a general and thorough consideration of legal issues related to the assets freeze, see Edwards, , Extraterritorial Application of the U.S. Iranian Assets Control Regulations , 75 AJIL 870 (1981)Google Scholar.

73 Case concerning the Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR 304, 336–41 (1978). Damrosch, supra note 16, discusses the case in depth.

74 Case concerning the Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR at 340–41.

75 Ibid.

76 Id. at 337. See E. Dumbauld, supra note 49, at 28, quoted at note 58 supra; see also [1979] 2 Y.B. Int’l L. Comm’n 115–22, supra note 57.

77 Statute of the International Court of Justice, Art. 41(1); Nuclear Tests Case, [1973] ICJ Rep. at 103 (para. 20) (Art. 41 intended “to preserve the respective rights of the Parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings”); Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1972] ICJ Rep. 12, 16. See generally E. Dumbauld, supra note 49, at 4–7.

78 Case concerning the Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR at 340.

79 To this limited extent, the Court must be understood as endorsing the view that there is an implied condition of reciprocity in every interim measures order. The United States had urged this view in a series of presentations to the Court. See World Court Rules on American Hostages, Dep’t State Bull., No. 2035, Feb. 1980, at 40, 48 (in oral argument on interim measures request); see also Oral Argument Excerpt, supra note 67, at 56. But the Court’s citation of its interim measures Order as one basis for condemning the rescue mission shows that some U.S. obligations survived Iran’s blatant disregard of the Order.

80 The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations makes this uncharacteristically plain: “States have a duty to refrain from acts of reprisal involving the use of force.” GA Res. 2625, 25 UN GAOR, Supp. (No. 28) 121, 122, UN Doc. A/8028 (1970). Even authorities supporting recognition of a general right of reprisal are careful to exclude forcible reprisals. See, e.g., [1979] 2 Y.B. Int’l L. Comm’n 118, supra note 57 (collecting authorities); Case concerning the Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR at 337.

81 The Court carefully avoided characterizing the rescue mission as an unlawful use of force. See text at note 7 supra.

82 Convention of Peace and Arbitration, Jan. 20, 1902, Costa Rica–El Salvador–Honduras–Nicaragua, Art. 11, 190 Parry’s TS 357. Under the Treaty the parties were obligated to refrain from a variety of military measures while arbitral proceedings were in progress in order to avoid impeding settlement of the dispute by those means. E. Dumbauld, supra note 49, at 93–95, discusses the Treaty of Corinto and the limited experience under it.

83 Signed Oct. 18, 1907, 36 Stat. 2241, TS No. 537, 205 Parry’s TS 250. Force could not be used against a state that agreed to arbitration of questions relating to its debt, until and unless the state refused to honor the arbitral award. See I. Brownlie, supra note 7, at 24, 225–26.

84 Pending the report of a commission of inquiry, declaration of war or initiation of hostilities was forbidden. See, e.g., Treaty for the Advancement of Peace, Jan. 22, 1914, United States– Bolivia, 38 Stat. 1868, TS No. 606; Treaty for the Advancement of Peace, July 24, 1914, United States–Brazil, 39 Stat. 1698, TS No. 627; Treaty for the Settlement of Disputes, Oct. 13, 1914, United States–Sweden, 38 Stat. 1872, TS No. 607 (barring any “act of force”). See E. Dumbauld, supra note 49, at 99–101; I. Brownlie, supra note 7, at 23, for consideration of the “Bryan Treaties.”

85 League of Nations Covenant art. 12, para. 1, reprinted in 1 Hudson, M., International Legislation 1 (1931)Google Scholar (disputes likely “to lead to a rupture” to be submitted to arbitration or inquiry by League Council); id. art. 13, para. 1 (obligation to submit to arbitration all disputes recognized to be “suitable for arbitration”).

86 Id. art. 12, para. 1.

87 Id. art. 13, para. 4.

88 E. Dumbauld, supra note 49, at 182–83.

89 See I. Brownlie, supra note 7, at 48, 56, 58, 68. As Professor Brownlie explains:

The essence of the Covenant. . . was the obligation to use peaceful means of settling disputes, resort to war being conditional on failure of the procedures for peaceful settlement for which provision was made. . . . The Covenant therefore must be interpreted as a creature of its time and on the assumption that a right to go to war recognized by the customary law still existed.

Id. at 56.

Efforts prior to the Kellogg–Briand Treaty to strengthen the League’s peace machinery were likewise premised on the lawfulness of force as a means of enforcing rights. The abortive Draft Treaty of Mutual Assistance, for example, declared aggressive war an international crime, but provided specifically that a war waged by a victorious party in a case before the Permanent Court or an arbitral tribunal was not aggressive war. As Brownlie states, such a provision “is in harmony with the Covenant in that it assumes the legality of war as a means of settlement.” Id. at 68.

For additional consideration of the circumstances under which resort to war was permissible within the framework of the Covenant, see Waldock, supra note 7, at 471.

See also Nantwi, E., The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law 123–26 (1966)Google Scholar.

90 After Kellogg–Briand, the right to resort to force no longer turned on the merits of the underlying controversy or indeed on the outcome of judicial consideration of the controversy. See I. Brownlie, supra note 7, at 89–90.

91 Even the Kellogg–Briand Treaty did not restrict the right to self–defense, a point made crystal clear by Secretary Kellogg’s famous explanatory note to the governments of 14 countries invited to become parties to the Treaty. The text of the note is reproduced in Shotwell, J., War as an Instrument of National Policy 296–303 (1929)Google Scholar, and is discussed in the same work at 172–76.

92 1 S. Rosenne, supra note 56, at 68.

93 See Elias, T., New Horizons in International Law 139 (1979)Google Scholar (citing Greece’s Application to the Court in the Aegean Sea Continental Shelf case as an example); 1 S. Rosenne, supra note 56, at 16. The Pakistani Application in the Trial of Pakistani Prisoners of War case may have been similarly motivated.

In the hostage crisis itself, the pressures in favor of using force had become quite strong by the time the U.S. Application was filed on Nov. 29. The President himself had hinted darkly at the possibility that force would be used. On Nov. 20, in response to new reports that the hostages would be put on trial, the White House stated that the “United States is seeking a peaceful solution to this problem through the U.N. and every other available channel,” but that “other remedies . . . explicitly recognized in the Charter of the United Nations” were available. According to Smith, , Putting the Hostages’ Lives First , N.Y. Times Magazine, May 18, 1981, at 76, 83 Google Scholar, on that same day the United States threatened through Swiss intermediaries to mine or blockade Iranian harbors if the hostages were mistreated. On Nov. 28, the President held a news conference to discuss the situation in Iran. When asked about its effects on the credibility of the U.S. military deterrent and the possibility of war, the President emphasized both that the United States had the “full support of our allies” and that he was committed to seeking the hostages’ release through peaceful means. He added, however, that the United States had other “options” available to it if diplomacy proved unavailing.

Both the White House statement and the transcript of the news conference are included in Appendix B to the Memorial of the United States. The Memorial, which contains a wealth of primary source material on the development of the crisis through early January 1980, has not yet been published by the Court, but is available from the Government Printing Office. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Memorial of the Government of the United States (1980).

94 The availability of a far less prestigious forum for airing Iranian grievances, the ad hoc Commission of Inquiry, nearly resulted in resolution of the crisis. See Smith, supra note 93, at 88– 91.

95 The point is made expressly by Dumbauld, commenting on the Court’s power to forbid “invasion” pendente lite:

As shown by the last example, the Court may forbid acts of self-help and hostilities to the extent that such conduct interferes with the Court’s functioning or jeopardizes execution of its task. Preservation of peace as such is not the task of the Court, but of the League of Nations. The Court may forbid only such fighting as impedes its own functioning.

E. Dumbauld, supra note 49, at 167.

96 [1980] ICJ Rep. 3, para. 93.

97 [1979] ICJ Rep. 7, para. 47(1)(B).

For assessments of the impact of the rescue attempt, see Kifner, , How a Sit-in Turned into a Siege , N.Y. Times Magazine, May 18, 1981, at 70–73 Google Scholar; Smith, supra note 93, at 96–98.

98 The example is drawn from the Fisheries Jurisdiction case. Despite the Court’s interim measures Order requiring Iceland to refrain from enforcing its fishing regulations, Icelandic gunboats began a campaign of harassment of British fishing vessels that included cutting their trawl lines. As Icelandic harassment intensified and came to include the firing of rifles or cannons, the United Kingdom determined it was necessary to introduce British naval vessels in a “purely defensive role” in the waters claimed by Iceland, but covered by the Court’s Order. Memorial on the Merits of the United Kingdom, 1 Fisheries Jurisdiction Case, ICJ Pleadings 286 (1975). The Government of Iceland took a different view, referring in a letter addressed to the Court to “the tension which has been provoked by the presence of British armed vessels within the fifty–mile limit.” Fisheries Jurisdiction Case, [1974] ICJ Rep. 3, 18.

The Court did not criticize the measures taken by the United Kingdom to protect its fishing vessels from acts of interference. In its only comment on compliance with the interim measures Order, the Court noted that the United Kingdom’s compliance with the catch limitation features of the Order was unquestioned. Id. at 16–17. In contrast, the Court noted Iceland’s disregard of the provision barring enforcement of its fishery regulations. Id. at 17. The Court’s refusal to criticize the intervention of the British Navy is strong support for the proposition stated in the text.

99 None of the documentation submitted to the Court suggested the existence of a new threat to the hostages; indeed, the U.S. assertion that the mission had been carried out “in exercise of its inherent right of self-defence with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on our Embassy,” [1980] ICJ Rep. 3, para. 32, tends to negate the existence of a new threat to the hostages.

100 Cf. 1 S. Rosenne, supra note 56, at 124–25 (enforcement of interlocutory orders with the exception of interim measures orders).

101 Thus, the failure of a judgment-debtor to comply with a judgment of the International Court of Justice may expose it to sanctions at a number of different levels. The prevailing party may be entitled to seek to coerce compliance with the judgment by nonforcible sanctions and to execute the judgment by nonforcible means of self-help, e.g., the seizure of assets to satisfy a damages award. See 1 S. Rosenne, supra note 56, at 133–48; E. Nantwi, supra note 89, at 120–47; Schachter, , The Enforcement of International Judicial and Arbitral Decisions , 54 AJIL 1, 16–17 (1960)Google Scholar. The same failure to comply may expose the recalcitrant party to sanctions by the Security Council. UN Charter art. 94(2). Finally, the failure to comply with the judgment may be made a bar to the institution of proceedings for revision before the Court. Statute of the International Court of Justice, Art. 61(3). Thus, the refusal to comply with a final judgment may result in sanctions imposed by the prevailing party, the Security Council, and the Court itself.

102 See sources cited at note 50 supra.

103 See Parker Claim, Op. of the Comm’n 35, 37, 40 (1926), 4 R. Int’l Arb. Awards 35, 37–40; Kling Claim, Op. of the Comm’n 36, 44–46 (1930), id. at 575, 582–84. See generally D. Sandifer, supra note 50, at 147–54.

104 D. Sandifer, supra note 50, at 460. The support for this position is drawn primarily from the jurisprudence of the U.S.-Mexican claims commissions of the 1920’s. It should be observed, however, that Article VIII(4) of the Rules of Procedure of the U.S.-Mexican General Claims Commission and the corresponding article of the rules for the U.S-Mexican Special Claims Commission empowered the tribunal to “take note” of a refusal to permit the inspection of documents and records. The rules are reproduced in A. Feller, The Mexican Claims Commissions 365 (General Claims Commission), 408 (Special Claims Commission) (1935).

105 Anglo-German Mixed Arbitral Tribunal Rules of Procedure, Art. 25, 1 Trib. Arb. Mixtes 109, 115–16. The authority of the U.S.-Mexican claims commissions to “take note” of refusals to permit document inspection may also be cited in this regard. See note 104 supra.

106 D. Sandifer, supra note 50, at 112.

107 W. Reisman, supra note 50, at 599.

108 Id. at 603. He adds that “on review, a claim of non-disclosure, if upheld, could result in nullification of the award upon demonstration of the materiality of the suppressed material.” Ibid.

109 D. Sandifer, supra note 50, at 460.

110 [1949] ICJ Rep. at 32. Whether the Court’s decision rested on the conclusion that the United Kingdom’s claim of “naval secrecy” constituted a valid claim of privilege, or on the Court’s guess as to the probable content of the document, or instead on a combination of the two together is unclear. W. Reisman, supra note 50, at 601.

Interestingly, in the Hostages case itself, the United States sought to invoke a kind of privilege resting on the privacy interests of the hostages’ families. At an early stage, the Court sought the names of the hostages; the United States justified its refusal to provide this information by a desire to protect the hostages’ families from publicity and possible harassment. Despite this policy of the U.S. Government, the names of the hostages ultimately became general knowledge and the United States supplied a list to the Court. No sanction was imposed by the Court for the delay, perhaps in recognition of the validity of the U.S. concern.

The privacy rationale was also invoked in another context. The United States offered to the Court for its in camera inspection sworn, signed, affidavits of 6 of the 13 hostages who had been released on Nov. 20, 1979. Oral Argument Excerpt, supra note 67, at 49. The Court did not agree to an in camera procedure, but did allow the United States to submit the affidavits with the names deleted. The Court apparently relied upon these affidavits in assessing the facts. [1980] ICJ Rep. 3, paras. 11 and 23.

111 This article constitutes an exception to the general rule stated by Rosenne that noncompliance with final judgments “does not normally enable the Court to impose any sanction vis–à–vis the recalcitrant State, either in that or in any other case.” 1 S. Rosenne, supra note 56, at 125–26.

112 The legislative history of Article 61(3) is rather sparse, but tends to confirm that its purpose was to provide the Court with a means of assuring compliance with its judgments. Permanent Court of International Justice, Advisory Comm. of Jurists, Procès–Verbaux of the Proceedings of the Committee (June 16th–July 24th, 1920) 744–45.

113 For a general consideration of this rule in England, see G. Borrie & N. Lowe, supra note 42, at 367–69; Dobbs, supra note 42, at 278–282, considers the same rule in the United States. The authors make clear that this sanction is an extreme one that is used sparingly.

114 The leading judicial authorities for the rule in England as well as in the United States both uphold the denial of a right to appeal to a party who has not complied with a lower court order. See Hadkinson v. Hadkinson, [1952] All E.R. 567; National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37 (1954).

115 See 1 Trib. Arb. Mixtes 633, 650, 666.

116 E. Dumbauld, supra note 49, at 129–44, reviews the jurisprudence of all the mixed arbitral tribunals in regard to interim measures. He reports no case considering the problem of noncompliance. The present author’s own review failed to turn up any such case either.

117 Interestingly enough, no parallel rule appears in the Rules of Procedure of the Anglo–German Mixed Arbitral Tribunal, 1 Trib. Arb. Mixtes 109, or in the rules of procedure for tribunals established by pairs of continental countries, even when one of the pair was also a participant in one of the above–mentioned tribunals with the United Kingdom; see, e.g., Rules of Procedure of the Austrian-Serbo-Croat-Slovene Mixed Arbitral Tribunal, id. at 698; Rules of Procedure of the Bulgarian-Belgian Mixed Arbitral Tribunal, id. at 231. This pattern suggests that the sanction for disobedience provision was a British invention that did not find favor with the continental countries. The comparison presents a rather neat example of differing attitudes to contempt of court.

118 PCIJ, Procès–Verbaux, supra note 112, at 588.

119 Ibid.

120 PCIJ, ser. D, No. 2, at 302.

121 PCIJ, Procès-Verbaux, supra note 112, at 588, 736.

122 The complete text of the relevant portion of Article 57 was as follows: “Any refusal by the parties to conform to the suggestions of the Court or of the President, with regard to such measures, shall be placed on record.” PCIJ, ser. D, No. 1, at 56.

123 The provision in question appears to have been drawn from Article 105 of a draft by Nyholm, which empowered the Court to “attach due legal weight to the fact [of noncompliance] when deciding the principal question at issue.” Id., No. 2, at 377.

124 Id. at 77.

125 Ibid. During the Fisheries Jurisdiction case, the United Kingdom sought an award of damages for Iceland’s harassment of British fishing vessels in the period subsequent to the Court’s interim measures Order. Memorial of the United Kingdom, supra note 98, at 375–78. The submission does not appear to have been based on the view that violation of the interim measures Order itself constituted an independent basis for the award of damages; instead, the position was that Iceland’s acts interfered with the right of UK nationals to fish freely on the high seas. Id. at 377–78. Following the negotiation of a modus vivendi, the United Kingdom withdrew this submission, Argument of Rt. Hon. Samuel Silkin, id. at 446–47, 472, and the Court consequently had no occasion to pass upon it.

126 The text of Article 57 remained unaltered through the 1926 revision of the Rules. PCIJ, ser. D, No. 1, at 56. In the 1931 revision of the Rules, the clause under discussion was deleted from Article 57. Id., No. 1 (2d ed.), at 42. The principal motive for the change was to avoid featuring so prominently in the text of the Rules the possibility of noncompliance with an order of the Court. See id., No. 2 (Add. 2), at 187, 198–99. Then–Professor Hudson applauded the deletion: “fortunately, this hint of disobedience has now disappeared from the rules.” Hudson, , The Amended Rules of the Permanent Court of International Justice , 25 AJIL 427, 435 (1931)Google Scholar.

127 Case concerning United States Diplomatic and Consular Staff in Tehran, [1980] ICJ Rep. 3, paras. 75 and 93; Nuclear Tests Case, [1974] ICJ Rep. at 258–59 (para. 19); Fisheries Jurisdiction Case, id. at 16–17 (paras. 33–34). The tone adopted by the Court in these cases varies widely; in the. Hostages case, the Court sharply censured Iran for its disobedience, while in the Nuclear Tests case the Court merely reported the Australian complaint that the Order had been violated.

In the fourth case involving noncompliance with an interim measures order, the Court made no mention of the fact of noncompliance. Anglo–Iranian Oil Co., [1952] ICJ Rep. 93.

128 Case concerning United States Diplomatic and Consular Staff in Tehran, [1980] ICJ Rep. 3, para. 11; Nuclear Tests Case, [1974] ICJ Rep. at 257 (para. 15); Fisheries Jurisdiction Case, id. at 8–10 (paras. 14–18).

129 Case concerning United States Diplomatic and Consular Staff in Tehran, [1979] ICJ Rep. at 13 (para. 15); Nuclear Tests Case, [1973] ICJ Rep. at 101 (para. 13); Fisheries Jurisdiction Case, [1972] ICJ Rep. at 15–16 (paras. 15–17).

130 For a thorough consideration of the doctrine, see Mendelson, , Interim Measures of Protection in Cases of Contested Jurisdiction , 46 Brit. Y.B. Int’l L. 259 (1972–73)Google Scholar; see also Goldsworthy, , Interim Measures of Protection in the International Court of Justice , 68 AJIL 258, 262–68 (1974)Google Scholar.

131 See generally Goldsworthy, supra note 130, at 273–74.

132 See Dobbs, supra note 42, at 279. See also Kirchner v. Kirchner, 5 N.J. Super. 341, 344, 69 A.2d 30, 31 (1949). The point is clearly made in a decision of the California Supreme Court:

A defendant is always under compulsion. The plaintiff is always seeking affirmative relief at the hands of the court. The defendant is merely contesting plaintiff’s right to such relief. While, therefore, it is improper, under such circumstances, to deprive a defendant of the right to make his showing as to the matter urged against him, and, by striking out his answer, to compel him to submit to a judgment without a hearing upon the merits, the case of a plaintiff is far different. He is seeking the court’s aid, and it is manifestly just and proper that, in invoking that aid, he should submit himself to all legitimate orders and processes.

O’Neill v. Thomas Day Co., 92 P. 856, 859 (1907).

133 A leading treatise on equity jurisprudence concludes an extended discussion of the “unclean hands” doctrine with the following statement:

2 Pomeroy’s Equity Jurisprudence §404 (5th ed. Symons 1941).

134 The maxim that “he who comes into equity must come with clean hands” was relied upon expressly in the Medea Case, 3 J. Moore, History and Digest of International Arbitrations to Which the United States Has Been A Party 2731, 2739 (1898), and in Judge Hudson’s famous concurring opinion in the Diversion of Water from the Meuse, [1937] PCIJ, ser. A/B, No. 70, at 77. See C. Jenks, supra note 50, at 412–13. On many more occasions, international tribunals have applied the rule that a party may not profit by his own wrong. See B. Cheng, supra note 50, at 149–58. This rule is related to, but admittedly somewhat distinct from, the “unclean hands” doctrine in that it bears directly on the foundation of the plaintiff’s right, rather than merely on the availability of a remedy.

The decision in the Barcelona Traction case did not reject the contention that the “unclean hands” doctrine is part of international law. The Court merely rejected the contention that unlawful action by Barcelona Traction could provide a legal justification for unlawful action by Spanish authorities. Barcelona Traction, Light & Power Co., Ltd., [1970] ICJ Rep. at 51.

135 See supra text at notes 110–113.

136 2 Pomeroy’s Equity Jurisprudence, supra note 133, at §403.

137 See Dobbs, supra note 42, at 279.

138 E. Dumbauld, supra note 49, at 173 (“Compliance with previous orders of the Court may well be made the condition of invoking its aid”).