1 United States Diplomatic and Consular Staff in Tehran, 1981 ICJ Rep. 45 (Order of May 12), reprinted in 20 ILM 889 (1981) [hereinafter cited as Order].

2 United States Diplomatic and Consular Staffin Tehran, 1979 ICJ Rep. 7 (Order of Dec. 15), reprinted in 74 AJIL 266 (1980), 19 ILM 139 (1980). For comments, see, e.g., Gross, , The Case Concerning United States Diplomatic and Consular Staff in Tehran: Phase of Provisional Measures , 74 AJIL 395 (1980)Google Scholar.

3 United States Diplomatic and Consular Staffin Tehran, 1980 ICJ Rep. 3 (Judgment of May 24), reprinted in 75 AJIL 746 (1980), 19 ILM 553 (1980) [hereinafter cited as Judgment]. For comments, see, e.g., McLaughlin, & Teclaff, , The Iranian Hostage Agreements: A Legal Analysis , 4 Fordham Int’l L.J. 223 (1980-81)Google Scholar; Redwine, , The Effect of Duress on the Iranian Hostage Settlement Agreement , 14 Vand. J. Transnat’l L. 847 (1981)Google Scholar.

4 For comments on the settlement, see, e.g., Suy, , Settling U.S. Claims Against Iran Through Arbitration , 29 AM. J. Comp. L. 523 (1981)Google Scholar.

5 Rules of Court, adopted on April 14, 1978, ICJ, Acts and Documents Concerning the Organization of the Court, No. 4, at 92 (1978), reprinted in 73 AJIL 748 (1979), 17 ILM 1286 (1978). See also Documents on the International Court of justice 203 (S. Rosenne 2d ed. 1979) for both English and French versions, and id. at 278 for a table of concordance of the Rules of the Permanent Court of International Justice and the present Court.

6 Only a few writers have dealt with discontinuance in any detail in recent years. See A. Martin, L’Estoppel en droit International Public 157 et seq. (1979); Giardina, , Arrangements amiables ed estinzione del processo difronte alia Corte internazionale di Giustizia , 14 Comunicazione e Studi [Com. e Stud.] 337 (1975)Google Scholar; Del Vecchio, A., Le Parti nel Processo Internazionale 229 et seq. (1975)Google Scholar; García, Pecourt, El Desistimiento en el proceso internacional: A propósito de la doctrina establecida por el Tribunal internacional de Justicia en el caso de la “Barcelona Traction,” 23 Rev. Español Derecho Int’l 231, 241 et seq. (1970)Google Scholar; Suy, , Contribution de la jurisprudence international récente au développement du droit des gens , 1966 Rev. Belge Droit Int’l 68, 86 Google Scholar et seq.; Rosenne, S., The Law and Practice of the International Court of Justice 534 et seq. (1965)Google Scholar [hereinafter cited as Rosenne, Law and Practice].

7 See Gross, supra note 2, at 395 et seq.

8 Judgment, supra note 3, at 7-8 (emphasis added).

9 Id. at 45.

10 Dep’t State Bull., No. 2047, Feb. 1981, at 1 et seq., reprinted in 75 AJIL 418 (1981), 20 ILM 223 (1981).

11 Id., Declaration of Algeria relating to commitments, para. 11. Paragraph 11 reads:

Upon the making by the Government of Algeria of the certification described in Paragraph 3 above, the United States will promptly withdraw all claims now pending against Iran before the International Court of Justice and will thereafter bar and preclude the prosecution against Iran of any pending or future claim of the United States or a United States national arising out of events occurring before the date of this declaration related to (A) the seizure of the 52 United States nationals on November 4, 1979, (B) their subsequent detention, (C) injury to United States property or property of the United States nationals within the United States Embassy compound in Tehran after November 3, 1979, and (D) injury to the United States nationals or their property as a result of popular movements in the course of the Islamic Revolution in Iran which were not an act of the Government of Iran. The United States will also bar and preclude the prosecution against Iran in the courts of the United States of any pending or future claim asserted by persons other than the United States nationals arising out of the events specified in the preceding sentence.

12 Order, supra note 1, at 46. The further reservation stated: “Independently of the foregoing, the United States reserves the right to seek redress in the Court if Iran fails to return promptly the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran.” Ibid.

13 See Black’s Law Dictionary 417-18 (5th ed. 1979).

14 For a survey of several major national legal systems and their municipal rules on discontinuance, see Commentary on the Draft Convention on Arbitral Procedure 80 et seq., UN Doc. A/CN.4/92 (1955) [hereinafter cited as Commentary].

15 See the elaboration and discussion of the discontinuance provisions in the Permanent Court of International Justice, especially at the early stages; 1922 PCIJ, ser. D, No. 2, at 83; 1926 PCIJ, ser. D, No. 2 (Add.), at 168; 1936 PCIJ, ser. D, No. 2 (Add. 3), at 314, 318 & n.2.

16 Some judges in the Permanent Court emphasized very early that genuine structural principles of public international law required an independent conception of discontinuance in international procedural law; see 1922 PCIJ, ser. D, No. 2, at 84; 1926 PCIJ, ser. D, No. 2 (Add.), at 168-69; 1936 PCIJ, ser. D, No. 2 (Add. 3), at 319 n.2.

17 The last order of discontinuance in the present Court was rendered in Trial of Pakistani Prisoners of War, 1973 ICJ Rep. 347 (Order of Dec. 15).

18 The remaining six cases of discontinuance in the ICJ are: Protection of French Nationals and Protected Persons in Egypt, 1950 ICJ Rep. 59 (Order of March 29); Electricité de Beyrouth Co., 1954 ICJ Rep. 107 (Order of July 29); Aerial Incident of 27 July 1955 (UK v. Bulgaria), 1959 ICJ

Rep. 265 (Order of Aug. 3); Aerial Incident of 27 July 1955 (U.S. v. Bulgaria), 1960 ICJ Rep. 146 (Order of May 30); Compagnie du Port, et des Entrepôts de Beyrouth and Société Radio-Orient, 1960 ICJ Rep. 186 (Order of Aug. 31); Barcelona Traction, Light & Power Co., Ltd., 1961 ICJ Rep. 9 (Order of April 10) [hereinafter cited as Barcelona Traction, Order].

Cf. the discussion of the necessary formality of the request for the withdrawal of an application in Monetary Gold Removed from Rome in 1943, 1954 ICJ Rep. 27 et seq., esp. at 30 (Judgment). The discontinuance provisions have been applied, as well, in cases of incidental proceedings which are not included in the figures mentioned in the text. For example, preliminary objections in the ICJ were once withdrawn formally in accordance with discontinuance provisions: Rights of Nationals of the United States of America in Morocco, 1951 ICJ Rep. 110 (Order of Oct. 31).

The present Order is the fifth to be issued by the President while the Court was not sitting. The others are Electricité de Beyrouth, Aerial Incident of 27 July 1955 (UK), Compagnie du Port, all supra, and Pakistani Prisoners of War, supra note 17. The President of the Permanent Court was not vested with this power, yet he assumed it in Electricity Co. of Sofia & Bulgaria, 1939 PCIJ, ser. A/B, No. 77, at 64, 67. He seemingly relied on his powers under the interim protection provisions: cf. Art. 63(3) of the Rules of Court of 1936.

The present Order is also the second to be based on an agreement and not on a unilateral withdrawal. The other was Compagnie du Port, supra.

19 Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1929 PCIJ, ser. A, No. 18; Pakistani Prisoners of War, 1973 ICJ Rep. 347. These cases are good precedent that the Court in the present case should have followed in various respects.

20 Barcelona Traction, Order, 1961 ICJ Rep. at 10.

21 Barcelona Traction, Light & Power Co., Ltd. (Preliminary Objections), 1964 ICJ Rep. 6 (Judgment) [hereinafter cited as Barcelona Traction (New Application)].

22 The PCIJ did not have that power; cf G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice. Interprétation et Pratique 84 et. seq. (1973). See, however, the Letitia dispute between Colombia and Peru, which was not entered on the Court’s General List; PCIJ, ser. E, No. 9, at 76 n.2.

Though the ICJ is not expressly empowered to do so, scholars agree that it has removed eight cases from its General List propria motu. G. Guyomar”, supra, at 84 et seq.; Rosenne, Law and Practice, supra note 6, at 472 and 540; see also Rosenne, S., Some Reflections on the 1978 Revised Rules of the International Court of Justice , 19 Colum. J. Transnat’l L. 235, 241 et seq. (1981)Google Scholar [hereinafter cited as Rosenne, Reflections]; M. Dubisson, La Cour Internationale de Justice 239 (1964); I. Shihata, The Power of the International Court of Justice to Determine its own Jurisdiction 58 n.3, and 86 n.2 (1965). In all eight cases the respondents had not accepted the jurisdiction of the Court, though they had been invited to do so in the applications. G. Guyomar, supra, at 85. Inclusion of this issue in the applications was done mostly for political reasons during the Cold War, to show the other parties’ unwillingness to adhere to the principle of judicial settlement of disputes.

Although their removal from the General List had become accepted practice, a new Article 38(5) was inserted in the 1978 Rules providing that such cases would not be put on the list in the first place. Cf the corresponding new requirement of Article 38(2) that the basis for jurisdiction be indicated precisely. For comment, see Rosenne, Reflections, supra, at 240 et seq. This change probably resulted from the recent tendency of respondents to deny the jurisdiction of the Court and not to appear before it, while still requesting the removal of the case from the list. See France’s attitude in the Nuclear Tests cases, 1973 ICJ Pleadings (2 Nuclear Tests) 347 et seq.

23 In the PCIJ 11 cases were discontinued. In all of them, discontinuance was based on an agreement by the parties to the dispute because unilateral discontinuance was provided for only in the Rules of 1936 (Art. 69). Yet, in fact, 7 out of the 11 cases were unilateral discontinuances. They were: Denunciation of the Sino-Belgian Treaty, 1929 PCIJ, ser. A, No. 18 (Order of May 25); Legal Status of the South-eastern Territory of Greenland, 1933 PCIJ, ser. A/B, No. 55, at 157 (Order of May 11) (two cases); Appeals from Certain Judgments of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, 1933 PCIJ, ser. A/B, No. 56, at 162 (Order of May 12) (two cases); Prince von Pless Administration, 1933 PCIJ, ser. A/B, No. 59, at 194 (Order of Dec. 2); Polish Agrarian Reform and German Minority, 1933 PCIJ, ser. A/B, No. 60, at 201 (Order of Dec. 2).

The other four cases were (1) based on an agreement as to the solution of the dispute: Factory at Chorzow, 1929 PCIJ, ser. A, No. 19, at 11 (Order of May 25); and (2) based on an agreement as to discontinuance: Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia, 1933 PCIJ, ser. A/B, No. 51, at 4, 6 (Order of Jan. 26); Losinger, 1936 PCIJ, ser. A/B, No. 69, at 102 (Order of Dec. 14); Borchgrave, 1938 PCIJ, ser. A/B, No. 73, at 4, 5 (Order of April 30).

Owing to the outbreak of World War II, two cases were in fact, though not formally, discontinued. See Electricité de Sofia and Bulgaria, 1939 PCIJ, ser. A/B, No. 77, at 54 (Judgment), and PCIJ, ser. E, No. 16, at 171; Gerliczy, id. at 144. In one case a request for an advisory opinion was withdrawn but not officially discontinued by the PCIJ: Expulsion of the Oecumenical Patriarch, PCIJ, ser. C, No. 9-II, at 10, 110-12; cf. PCIJ, ser. D, No. 2 (Add. 3), at 809; PCIJ, ser. E, No. 3, at 185.

24 League of Nations, Minutes of the Proceedings of the Advisory Committee of Jurists, with Annexes (1920); Draft Scheme for the Institution of the Permanent Court of International Justice, League of Nations O.J., Supp. No. 2, at 4 et seq. (1920).

25 (Revised) Statute of the Permanent Court of International Justice, PCIJ, ser. D, No. 1, at 12 (3d ed. 1936); Statute of the International Court of Justice, 15 UNCIO Docs. 355 (1945).

26 Rules of Court, Draft Prepared by the temporary Secretariat, Art. 44: “If during the proceedings the parties come to an agreement concerning the subject matter of the dispute, and notify such agreement to the Court in writing before the oral proceedings are closed, the Court shall embody this agreement in a formal judgment.” PCIJ, ser. D, No. 2, at 252, 265.

27 Memorandum by Judge Altamira, id. at 272, 279.

28 Rules of Court, Concluded by the Committee on Procedure, Art. 44, id. at 293, 304.

29 Id. at 289, 291.

30 Id. at 83 (Judge Huber).

31 Id. at 83-84.

32 Compare Art. 44 of the Revised Draft of the Secretariat of Feb. 25, 1922, id. at 399, 410, with Art. 64 (later Art. 63) of the Draft Rules of Court Prepared by the Drafting Committee, id. at 444, 469 (and later at 481, 495).

33 Rules of Court, adopted on March 24, 1922, PCIJ, ser. D, No. 1, at 66. Art. 61 provides:

If the parties conclude an agreement regarding the settlement of the dispute and give written notice of such agreement to the Court before the close of the proceedings, the Court shall officially record the conclusion of the agreement.

Should the parties by mutual agreement notify the Court in writing that they intend to break off proceedings, the Court shall officially record the fact and proceedings shall be terminated.

34 PCIJ, ser. D, No. 2 (Add. 1), at 168. See the persuasive argument of Judge de Bustamante against such consent judgment: the Court must give judgment from the standpoint of law, whereas the parties to the dispute may agree on the basis of political, diplomatic, and economic considerations. Ibid.

35 Id. at 171 (President Loder).

36 Report by the Registrar, PCIJ, ser. D, No. 2 (Add. 3), at 829.

37 Report of the Third Commission, March 14, 1934, id. at 780.

38 Report of the Coordination Commission, May 14, 1934, id. at 877, and its Project of Rules of Court, id. at 890-91.

39 Rules of Procedure, Project by the Coordination Commission (French version), Arts. 75-77, id. at 895; and Memorandum by Sir Cecil Hurst, President (English), id. at 904.

40 Id. at 314-15 (Judge Fromageot).

41 Id. at 315.

42 Thus, it was clear that the articles dealing with discontinuance were conceived of merely as a procedural device to terminate proceedings. Id. at 317.

43 Id. at 317 & n.2.

44 Id. at 653-54.

45 Judge Anzilotti correctly pointed out that discontinuance by order was already well established in the practice of the Court and in conformity with Article 48 of the Statute. Id. at 316. On Art. 48, see text at note 110 infra.

46 Rules of Court, adopted on March 11, 1936, PCIJ, ser. D, No. 1, at 31 (3d ed.).

47 Rules of Court, adopted on May 6, 1946, ICJ, Acts and Documents Concerning the Organization of the Court, No. 1, at 54 (2d ed. 1947). See G. Guyomar, supra note 22, at 400, as to the purely ministerial nature of the President’s new power.

Articles 68 and 69 were renumbered 73 and 74 in 1972 but remained unchanged until 1978. Rules of Court, adopted on May 10, 1972, ICJ, Acts and Documents Concerning The Organization of the Court, No. 2, at 3 (1972).

48 The comments already available on the 1978 revision do not deal extensively with the discontinuance provisions. Cf. Guyomar, , Le Nouveau Règlement de procédure de la Cour internationale de Justice , 24 Annuaire Français Droit Int’l 321 (1978)Google Scholar; Lachs, , The Revised Procedure of the International Court of Justice , in Essays on the Development of the International Legal Order in Memory of H. F. van Panhuys 21 (1980)Google Scholar. But see Mosler, , Aktuelle Aspekte des Verfahrensrechts des Internationalen Gerichtshofes , in Völkerrecht und Rechtsphilosophie, Internationale Festschrift Stephan Verosta Zum 70. Geburtstag 249 (1980)Google Scholar [hereinafter cited as Mosler, Aspekte]; Mosler, , The International Court of Justice at its Present Stage of Development , 5 Dalhousie L J. 545 (1979)Google Scholar; Oellers-Frahm, , Die Verfahrensordnung des Internationalen Gerichtshofs vom 14. April 1978 , 18 Archiv Völkerrecht 309 (1979/1980)Google Scholar; Rosenne, Reflections, supra note 22.

49 Accord, (Judge) Mosler, Aspekte, supra note 49, at 252.

50 Judge ad hoc Armand-Ugon attached much value to the heading in his dissent in Barcelona Traction (New Application), 1964 ICJ Rep. at 117. Great importance was attached to it in the revision discussion in the PCIJ, PCIJ, ser. D, No. 2 (Add. 3), at 853, 877, 314, 652, and 734-35. Thus, Judge ad hoc Armand-Ugon’s dissent would have had to reach the contrary conclusion about the new Rules of Court.

51 1978 Rules of Court, supra note 5. Article 89 reads:

1. If in the course of proceedings instituted by means of an application, the applicant informs the Court in writing that it is not going on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Court shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. A copy of this order shall be sent by the Registrar to the respondent.

2. If, at the time when the notice of discontinuance is received, the respondent has already taken some step in the proceedings, the Court shall fix a time-limit within which the respondent may state whether it opposes the discontinuance of the proceedings. If no objection is made to the discontinuance before the expiration of the time-limit, acquiescence will be presumed and the Court shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. If objection is made, the proceedings shall continue.

3. If the Court is not sitting, its powers under this Article may be exercised by the President.

52 Ibid.

53 J. Witenberg, L’Organisation Judiciare, La Procédure et la Sentence Internationales 343-44 (1937); cf. Statut et Règlement de la Cour Permanente de Justice Internationale. Eléments D’Interprétation 406 et seq. (ed. Schenk von Stauffenberg 1934); Giardina, supra note 6, at 337; Pecourt García, supra note 6, at 241 et seq.

54 See, however, Giardina, supra note 6, at 354 et seq. It was already understood in the Permanent Court that the parties were free to determine what to communicate to the Court. PCIJ, ser. D, No. 2 (Add. 3), at 318-19 n.2; cf. M. Hudson, The Permanent Court of International Justice 1920-1942, at 295 (1943). For a more recent understanding that no res judicata effect can be accorded to an order of discontinuance, see J. Simpson & H. Fox, International Arbitration, Law and Practice 216 (1959); A. del Vecchio, supra note 6, at 235 et seq.

55 In 1926 Judge Pessoa suggested dropping Article 61(1) of the Rules of Court of 1922 because “la procédure perd sa raison d’être” if the parties agree on a settlement of a dispute. PCIJ, ser. D, No. 2 (Add.), at 271. Yet the Court continued to require definite procedural steps by the parties to put an end to a current set of proceedings. Cf. G. Guyomar, supra note 22, at 400.

56 “Si, à un moment quelconque avant l’arrêt définitif sur le fond, les parties, conjointement ou separement, notifient à la Cour par écrit qu’elles sont convenues de se désister de 1’instance, la Cour rend une ordonnance prenant acte du désistement et prescrivant que l’affaire soit rayée du rôle.” Art. 88(1), 1978 Rules of Court, supra note 5.

57 The Barcelona Traction (New Application) decision centered on this distinction and ultimately refused to recognize it. 1964 ICJ Rep. at 18 et seq. In their dissenting opinions Judge Morelli, id. at 101 et seq., and Judge ad hoc Armand-Ugon, id. at 117 et seq., discussed the point at length. (After that decision, it seemed that the notion of désistement d’instance was superfluous, yet in 1978 it was incorporated into the Rules.)

58 Giardina, supra note 6, at 350 et seq.; cf. Suy, supra note 6, at 86 et seq.; Pecourt García, supra note 6, at 245. The Court used donner acte when it wanted to lend some “authority” to an otherwise slightly irregular discontinuance order, issued either at variance with its Rules or in the absence of an applicable rule. Examples are (1) cases of unilateral withdrawal before such action was provided for: Denunciation of the Sino-Belgian Treaty; South-eastern Territory of Greenland; Hungaro/Czechoslovak Mixed Arbitral Tribunal Appeals; Prince von Pless; Polish Agrarian Reform; (2) cases where discontinuance was sought in incidental proceedings, e.g., interim protection: Prince von Pless; Electricity Co. of Sofia and Bulgaria; (3) cases where discontinuance was notified by the parties separately (before 1978): Compagnie du Port. The Court did not attach any difference in substance to such use of the French. Contra Giardina, supra note 6, at 343 et seq. For a detailed discussion, see A. del Vecchio, supra note 6, at 229 et seq.

59 Art. 47, Rules of Court of the European Court of Human Rights, as amended, 1979 Bundesgesetzblatt, pt. 2, at 213; Art. 42(3), Rules of Procedure of the Inter-American Court of Human Rights, 20 ILM 1289 (1981), which follows the “European” example.

60 The ordre public argument was advanced very early by J. Witenberg, supra note 53, at 343- 46.

61 Arts. 77 and 78, Rules of Court of the European Court of Justice, 17 O.J. Eur. Comm. (No. L 350) 18 (1974).

62 This distinction is well established in the French version. Article 77 speaks of “renonciation à toute prétention,” whereas Article 78 mentions “renonciation à l’instance.” 17 J.O. Comm. Eur. (No. L 350) 18 (1974). Compare the forerunner in the Rules of Court of the European Coal and Steel Community, which makes the same distinction. 1953 J.O. Ceca 37, 53.

63 On amicable settlement, see in particular the Rules of Procedure in 1 Trib. Arb. Mixtes 239- 40, Art. 68 (1922); id. at 249, Art. 62; id. at 680, Art. 62; id. at 696-97, Art. 68; id., at 158, Art. 67; id. at 822, Art. 66; id. at 832, Art. 56; id. at 850, Art. 67. For a survey of Rules of Procedure of conciliation commissions in this respect, see A. del Vecchio, supra note 6, at 232 n.7.

64 1 Trib. Arb. Mixtes 53, Art. 65 (1922); id. at 42, Art. 69; and see the Rules of Procedure cited supra note 63.

65 Arts. 68 and 69, Rules of Procedure of the German-Belgian Mixed Arbitral Tribunal, 1 Trib. Arb. Mixtes 33, 41-42 (1922).

66 See Art. 21 and the explanations in Commentary, supra note 14, at 80 et seq.

67 Art. 22 and explanations, id. at 82. See also Model Rules on Arbitral Procedure, 2 Y.B. Int’l L. Comm’n 14 (1958).

68 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 575 UNTS 159.

69 ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings and ICSID Rules of Procedure for Arbitration Proceedings, reproduced in 4 G. Wetter, The International Arbitral Process: Public and Private 486 and 496, respectively (1979).

70 The notes to Rule 44 under “C” explain that an express or implied agreement is necessary for such discontinuance; ICSID Arbitration Rules, supra note 69.

71 15 ILM 701, 714 (1976), also reproduced in 4 G. Wetter, supra note 69, at 413, 427.

72 This provision may prove to be of particular interest because the UNCITRAL Arbitration Rules are to be applied by the Iran-United States Claims Tribunal established by the Algiers settlement, except as modified by the parties or by the tribunal. Declaration of Algeria Concerning the Settlement of Claims, Art. III(2), supra note 10.

73 In German Secular Property in Israel (Israel/Federal Republic of Germany), 16 R. Int’l Arb. Awards 1 (1962), the parties agreed upon an amicable settlement of their dispute over German property in Israel in accordance with the terms of settlement proposed by the mediator they had appointed (see 345 UNTS 92). Article 5 of the settlement agreement of 1962, 448 UNTS 228, provided that it should be communicated to the mediator with the request by both parties that the mediation proceedings be formally terminated. The mediator noted the communications from the parties and terminated proceedings under the special agreement. 16 R. Int’l Arb. Awards at 3. See Wühler, , German Secular Property in Israel Case , in Encyclopedia of Public International Law 116 (Bernhardt ed., Installment 2, 1982)Google Scholar.

In some cases the parties have specifically provided for termination. The United States and Canada provided in Article 1 of the Treaty to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area of 1979, reprinted in 20 ILM 1377 (1981), for the submission of the dispute by Special Agreement to a Chamber of the ICJ; but under Articles 2 and 3, an agreement to submit the dispute to arbitration enters into force if the Special Agreement is terminated. This may be done by either party if the Chamber of the ICJ is not constituted in accordance with the Special Agreement within a specified time (Art. 2), or if a vacancy on the Chamber is not filled to the satisfaction of the parties (Art. 3). If the Special Agreement is terminated, “the Parties shall jointly notify the International Court of Justice that the proceedings under the Special Agreement are discontinued.” Curiously, in the French, equally authoritative text, the term “discontinuation” is used, which is most unusual because the word is not found in international legal parlance.

74 See the cases cited supra note 58, under (1).

75 The Court extended time limits fixed by it at the request of parties with a view to facilitating ongoing negotiations. Losinger, 1936 PCIJ, ser. A/B, No. 69, at 102 (Order of Dec. 14). Compare Free Zones of Upper Savoy and the District of Gex, 1929 PCIJ, ser. A, No. 22 (Order of Aug. 19); 1930 PCIJ, ser. A, No. 24 (Order of Dec. 6); 1932 PCIJ, ser. A/B, No. 46 (Judgment).

76 Castellorizo and Borchgrave cases, supra note 23; French Nationals, Electricité de Beyrouth, Aerial Incident of 27 July 1955 (UK), all supra note 18; Pakistani Prisoners of War, 1973 ICJ Rep. 347.

77 See the cases cited, supra note 58.

78 E.g., interim measures of protection: Prince von Pless and Electricity Co. of Sofia, supra note 18.

79 See Bareceiona Traction (New Application), 1964 ICJ Rep. at 21. Compare the very clear discussion by Scerni, La Procédure de la Cour permanente de Justice internationale, 65 Recueil des Cours 565, 658 et seq. (1938 III). See further Mosler, Aspekte, supra note 48, at 252; Pecourt García, supra note 6, at 244-45; A. del Vecchio, supra note 6, at 229. Contra Giardina, supra note 6, at 343 et seq. Cf. J. Witenberg, supra note 53, at 343 et seq.

80 Barcelona Traction (New Application), 1964 ICJ Rep. at 20 (emphasis added). See G. Salvioli, Tutela dei Diritti e Interessi Internazionau 371 et Seq. (1941).

81 Castellorizo, supra note 23, at 6, where the PCIJ stated that after fulfillment of the formal requirements of Art. 61(2) of the 1922 Rules, “there is nothing to prevent the Court from recording this fact”; cf. Borchgrave, supra note 23, at 5; Hungaro/Czechoslovak Mixed Arbitral Tribunal Appeals, supra note 23, at 163; Factory at Chorzów, supra note 23, at 13: “constate que la procédure au sujet de ladite affaire a pris fin” (emphasis added). See the authors cited, supra note 79, except Giardina and Witenberg.

82 Barcelona Traction (New Application), 1964 ICJ Rep. at 20. Cf. Rosenne, Law and Practice, supra note 6, at 535.

83 Compagnie du Port, supra note 18, at 187. The Court established only the reality of the agreement.

84 Barcelona Traction (New Application), 1964 ICJ Rep. at 20. Compare the discussion by Mosler in Aspekte, supra note 48, at 253, and especially Scerni, supra note 79, at 661 et seq.

85 Giardina, supra note 6, at 359.

86 Id. at 353 and 360. The eight crucial cases are: Chorzów Factory, Denunciation of the Sino- Belgian Treaty, Territory of South-eastern Greenland, Prince von Pless, all supra note 23; French Nationals, Electricité de Beyrouth, Compagnie du Port, all supra note 18; Pakistani Prisoners of War, 1973 ICJ Rep. 347. Two basic considerations contradict Giardina’s reasoning. Three of the cases were removed from the list by order of the President. It hardly seems possible to attribute quasi-res judicata effect to the President’s orders. In two of the cases, a settlement of the dispute had not yet been reached when the order was rendered: Sino-Belgian Treaty and Pakistani Prisoners of War. An order of the Court could hardly pronounce with res judicata effect on a settlement of a dispute that had not yet been resolved.

87 Giardina, supra note 6, at 340 et seq. and 354 et seq.

88 Id. at 353.

89 See the problems already mentioned and the cases cited, supra note 58.

90 The factor of political or moral value in the incorporation of certain terms, communications, or undertakings was stressed very recently by Judge Mosler in Aspekte, supra note 48, at 252.

91 E.g., French Nationals, supra note 18; cf. absent step in proceedings by respondent, Denunciation of Sino-Belgian Treaty, supra note 19.

92 E.g., Pakistani Prisoners of War, 1973 ICJ Rep. 347; Denunciation of Sino-Belgian Treaty, supra note 19; Barcelona Traction (New Application), 1964 ICJ Rep. 6.

93 E.g., Compagnie du Port and Electricité de Beyrouth, supra note 18.

94 Barcelona Traction (New Application), 1964 ICJ Rep. at 19.

95 Id. at 21. For scholarly support, see Pecourt García, supra note 6, at 245-46, and all other writers mentioned in notes 6 and 78 except Giardina.

96 Denunciation of the Sino-Belgian Treaty, supra note 19; Pakistani Prisoners of War, 1973 ICJ Rep. 347.

97 1964 ICJ Rep. at 20-21 (denying quasi explicitly a possible res judicata effect with regard to Art. 69 of the 1946 Rules).

98 Cf. G. Salvioli, supra note 80, at 371 et seq.; A. del Vecchio, supra note 6, at 232 et seq.; Rosenne, Law and Practice, supra note 6, at 538 et seq.; see on the whole, A. Tommasi di Vignano, La Rinuncia in diritto Internazionale (1960).

99 See Mosler, Aspekte, supra note 48, at 253; A. Martin, supra note 6, at 157 et seq. S. Rosenne, The International Court of Justice 378 (1957), maintained that estoppel principles applied to the facts mentioned in an order pursuant to (former) Article 69, yet some years later he seemingly abandoned this idea; Law and Practice, supra note 6, at 535 et seq.

100 Rosenne, Law and Practice, supra note 6, at 537.

101 Barcelona Traction (New Application), 1964 ICJ Rep. at 21.

102 Id. at 18.

103 Id. at 21-22.

104 Id. at 21.

105 See the approach of the ICJ, id. at 22 et seq.

106 The analysis that follows is preliminary inasmuch as the correspondence between the Court and the parties to the dispute has not yet been made available to the public by either the U.S. State Department or the ICJ.

107 Order, supra note 1, at 45.

108 Id. at 46-47.

109 Id. at 45. “In seeking a discontinuance, we intend that all currently pending proceedings relating to the United States claims against Iran for reparation be discontinued, and that the Court issue an order recording the discontinuance and directing the removal of those proceedings from the list.”

110 Id. at 47.

111 See supra note 45.

112 Judgment, supra note 3, at 10-11.

113 Denunciation of the Sino-Belgian Treaty, supra note 19; Pakistani Prisoners of War, 1973 ICJ Rep. 347.

114 Barcelona Traction (New Application), 1964 ICJ Rep. at 20.

115 Id. at 20. See the letter of the Pakistani Agent to the Registrar of the ICJ, 1973 ICJ Pleadings (Trial of Pakistani Prisoners of War) 175-76. Compare Aerial Incident case (UK), 1957 ICJ Pleadings 698.

116 Judgment, supra note 3, at 45.

117 Denunciation of the Sino-Belgian Treaty, supra note 19, at 7; see PCIJ, ser. C, No. 16-1, at 355-56.

118 Mavrommatis Palestine Concessions, 1924 PCIJ, ser. A, No. 2, at 34 (Judgment No. 2). See the critique by Judge Koretsky in Northern Cameroons, 1963 ICJ Rep. 15, 39-40 (dec).

119 See supra note 58.

120 See for similar instances of such behavior in the Court and its discussion, Lamberti Zanardi, Forme nuove di contestazione della competenza delta Corte internazionale di Giustizia e potere della Corte di aprire d’ufficio un procedimento sulla competenza, 14 Com. e Stud. 439 (1975); Rosenne, The Reconceptualization of Objections in the International Court of Justice, id. at 735 [hereinafter cited as Rosenne, Reconceptualization]; Sinclair, , Some Procedural Aspects of Recent International Litigation , 30 Int’l & Comp. L.Q. 338 (1981)Google Scholar.

121 The ICJ was very firm in rejecting “irregular communications to the Court” as a step in the proceedings in Pakistani Prisoners of War, 1973 ICJ Rep. at 348.

122 Article 88 requires notification in writing; Article 89(2) speaks of a statement of opposition.

125 Compare especially Pakistani Prisoners of War, 1973 ICJ Rep. 347, which is proposed here as the precedent to be followed, and the pertinent correspondence with the Court, 1973 ICJ Pleadings at 175-76.

124 The Order notes that certified copies of the Algiers settlement were furnished to the ICJ, and that the Declarations had been initialed by duly authorized Government representatives. This gives the impression that the Court examined the legality-validity of the Algiers settlement. Yet it is not empowered to do so at all, either under consistent previous practice or under the new Rules.

125 See Rosenne, Reconceptualization, supra note 120.

126 Ibid.

127 See text at note 110.

128 Cf. Barcelona Traction (New Application), 1964 ICJ Rep. at 21. A substantial interpretation and final assessment of these problems is not intended and not yet possible. The following is but a listing of critical issues to be considered.

129 Id. at 21-22.

130 Id. at 19 et seq.

131 The validity of the Algiers settlement under the principles of the law of treaties has been questioned; see, e.g., McLaughlin & Teclaff, supra note 3, at 226 et seq.; Redwine, supra note 3, at 847.

132 Iran could take up the arguments advanced by the ICJ in the Barcelona Traction (New Application) case, 1964 ICJ Rep. at 22 et seq.; see A. Martin, supra note 6, at 157 et seq. with abundant documentation.

133 Barcelona Traction (New Application), 1964 ICJ Rep. at 21; cf. Rosenne, Law and Practice, supra note 6, at 539. Contra Pecourt García, supra note 6, at 246.

134 See Rosenne, Law and Practice, supra note 6, at 529; Barcelona Traction (New Application), 1964 ICJ Rep. at 22 et seq.

135 Algiers settlement, supra note 10. The Iran-United States Claims Tribunal in its recently published opinion on its own jurisdiction construed its jurisdiction precisely. 21 ILM 78 (1982).

136 Cf. M. Bos, Les Conditions du procès en droit international public 261 (1957), with a view to an all-encompassing derogation from a jurisdictional instrument.

137 Judge Anzilotti in the Rules discussion of 1922, supra note 31.

138 See von Mangoldt, , Methods of Dispute Settlement in Public International Law , in Settlement of Space Law Disputes 15, 25-26 (ed. Böckstiegel, K.-H. 1980)Google Scholar. The Iran-United States Mixed Claims Tribunal did in fact have recourse to such principles in its recent opinion on its jurisdiction, 21 ILM 78 (1982).

139 See Dep’t of State Public Notices 764, 46 Fed. Reg. 37,418 (1981); 763, id. at 36,277; 753, id. at 25,026; 749, id. at 19,893.

140 See supra note 72.

141 See Dep’t of State Public Notices 789, 47 Fed. Reg. 1,063 (1982); 783, 46 id. at 58,631 (1981); 779, id. at 55,468; 775, id. at 49,695; 772, id. at 45,051.