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The Case Concerning United States Diplomatic and Consular Staff in Tehran: Phase of Provisional Measures

Published online by Cambridge University Press:  27 February 2017

Leo Gross
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Extract

This case, instituted by the United States on November 29, 1979, by means of a unilateral Application under Article 40 of the Statute of the Court and Article 38 of the Rules of Court, relates to the takeover of the American Embassy in Tehran and the American Consulates in Tabriz and Shiraz and the detention as hostages of some 50 Americans by so-called militants. According to one doctrine of the justiciability of disputes, it would be difficult to imagine a more tension-laden and therefore non-justiciable dispute, considering that, as contended by the United States both in the Application and the Request of November 29, 1979, for the indication of provisional measures under Article 41 of the Court’s Statute and Articles 73 and 74 of the Rules of Court, the Iranian Government was involved in the takeover and continues to be involved in the detention of the hostages. The circumstances, which in the view of the United States required the indication of provisional measures, were summarized by the Court in paragraph 34 of its Order of December 15, 1979, as follows:

  1. (i) On 4 November 1979, in the course of a demonstration outside the United States Embassy compound in Tehran, demonstrators attacked the Embassy premises; no Iranian security forces intervened or were sent to relieve the situation, despite repeated calls for help from the Embassy to the Iranian authorities. Ultimately the whole of the Embassy premises was invaded. The Embassy personnel, including consular and non-American staff, and visitors who were present in the Embassy at the time were seized. Shortly afterwards, according to the United States Government, its consulates in Tabriz and Shiraz, which had been attacked earlier in 1979, were also seized, without any action being taken to prevent it;

  2. (ii) Since that time, the premises of the United States Embassy in Tehran, and of the consulates in Tabriz and Shiraz, have remained in the hands of the persons who seized them. These persons have ransacked the archives and documents both of the diplomatic mission and of its consular section. The Embassy personnel and other persons seized at the time of the attack have been held hostage with the exception of 13 persons released on 18 and 20 November 1979. Those holding the hostages have refused to release them, save on condition of the fulfilment by the United States of various demands regarded by it as unacceptable. The hostages are stated to have frequently been bound, blindfolded, and subjected to severe discomfort, complete isolation and threats that they would be put on trial or even put to death. The United States Government affirms that it has reason to believe that some of them may have been transferred to other places of confinement;

  3. (iii) The Government of the United States considers that not merely has the Iranian Government failed to prevent the events described above, but also that there is clear evidence of its complicity in, and approval of, those events;

  4. (iv) The persons held hostage in the premises of the United States Embassy in Tehran include, according to the information furnished to the Court by the Agent of the United States, at least 28 persons having the status, duly recognized by the Government of Iran, of “member of the diplomatic staff” within the meaning of the Vienna Convention on Diplomatic Relations of 1961; at least 20 persons having the status, similarly recognized, of “members of the administrative and technical staff’ within the meaning of that Convention; and two other persons of United States nationality not possessing either diplomatic or consular status. Of the persons with the status of member of the diplomatic staff, four are members of the Consular Section of the Embassy;

  5. (v) In addition to the persons held hostage in the premises of the Tehran Embassy, the United States Charge d’Affaires in Iran and two other United States diplomatic agents are detained in the premises of the Iranian Ministry for Foreign Affairs, in circumstances which the Government of the United States has not been able to make entirely clear, but which apparently involve restriction of their freedom of movement, and a threat to their inviolability as diplomats.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 2 , April 1980 , pp. 395 - 410
Copyright
Copyright © American Society of International Law 1980

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References

1 The Order of the Court, December 15, 1979, [1979] ICJ Rep. 7, reprinted in 74 AJIL 266 (1980) [it will be cited hereinafter as Order]. The U.S. Application and Request for Interim Measures are reprinted in id. at pp. 258 and 264, respectively.

2 The text of the letter is in paragraph 8 of the Order; the passages quoted are in paragraphs 1, 2, and 3, and the concluding paragraph of the letter.

3 See paragraph 1(a) of the Order. The treaties are: the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, and the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran. The Application also refers to Articles 2(3), 2(4), and 33 of the Charter.

4 ICJ Public Sitting, December 10, 1979, Verbatim Record (uncorrected) 44 (Doc. CR79/1, 1979) [hereinafter cited as Verbatim Record].

5 Without identifying the cases, Mr. Owen said that in one case the period between the filing of the request and the indication of the measures was 13 days, in another, 9, and in a third, 6. Id. at 43.

6 Id. at 8-9.

7 Id. at 9.

8 Ibid.

9 Id. at 45-46.

10 This certificate is reproduced in U.S. Dep't of State, Pub. No. 9001, Selected Documents No. 14, at 5 (Near East South Asian Series 92, 1979).

11 In the telegram addressed to the Agent, Mr. Owen, on December 4, 1979, there are these words in paragraph 2: “The President, while noting the certificate of Mr. David D. Newsom appended to the United States Application, asks the Agent of the United States….” Verbatim Record, supra note 4, at 8.

12 Thus, paragraph 2 of the Request for Interim Measures contains this general statement: “At least fifty United States citizens, virtually all of whom are diplomatic agents or administrative and technical staff of the Embassy, are being held hostages.”

13 In the Aegean Sea Continental Shelfcase (Greece v. Turkey), the Court denied the Greek request for the indication of interim measures of protection by a vote of 12 to 1 (the judge ad hocappointed by Greece), but there were 8 separate opinions. [1976] ICJ Rep. 3, 14. See Gross, , The Dispute Between Greece and Turkey Concerning the Continental Shelf in the Aegean, 71 AJIL 31 (1977)CrossRefGoogle Scholar.

14 The most recent case is mentioned in the preceding note. The present Court was faced first with the issue in the Anglo-Iranian Oil Co. case (United Kingdom v. Iran), and more recently in the Fisheries Jurisdiction cases (United Kingdom v. Iceland, and German Federal Republic v. Iceland) and the Nuclear Tests cases (Australia v. France, and New Zealand v. France).

15 Reference may be made to the following: Elkind, , French Nuclear Testing and Article 41—Another Blow to the Authority of the Court?, 8 Vand. J. Transnat'l L. 39 (1974)Google Scholar; Merrilis, , Interim Measures of Protection and the Substantive Jurisdiction of the International Court, 36 Camb. L.J. 86 (1977)CrossRefGoogle Scholar; Mendelson, , Interim Measures of Protection in cases of Contested Jurisdiction, 46 Brit. Y.B. Int'l L. 259 (1972-73)Google Scholar; Lellouche, , The Nuclear Tests Cases, 16 Harv. J. Int'l L. 614 (1975)Google Scholar; Obol, Note in 18 id., at 649 (1977); Adede, , The Rule on Interlocutory Injunctions Under Domestic Law and the Interim Measures of Protection Under International Law: Some Critical Differences, 4 Syracuse J. Int'l L. & Com. 277 (1977)Google Scholar.

16 There may be a parallel of sorts in the Pakistani Prisoners of War case which, however, was withdrawn before it came for adjudication.

17 In case of a default judgment the Court, pursuant to Article 53(2), must “satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.“

18 The Court may have referred here to paragraph 16 of the Order in which it found that Iran and the United States are parties to the two conventions and to their protocols without any reservation.

19 See Verbatim Record, supra note 4, at 28.

20 The Mavrommatis Palestine Concessions, [1924] PCIJ, ser. A, No. 2, at 11.

21 S. Rosenne, 2 The Law and Practice of the International Court 513 ff. (1965).

22 They were:

(a) What, if any, exchanges have taken place between the Governments of the United States and Iran regarding recourse to arbitration, conciliation or any other pacific means for the settlement of their present differences; and to furnish the Court with copies of any documents relating thereto;

(b) whether the government of either the United States or Iran has formally broken off diplomatic relations between the two governments since the matters which are the subject of their present differences arose; and, if so, to furnish the Court with copies of any documents thereto.

Verbatim Record, supra note 4, at 8.

23 Id. at 9.

24 Id. at 45. The Court asked for a copy of the message intended to be delivered by Ramsey Clark and of any documents or questions which Mr. Newsom stated had been communicated to the Iranian Chargé d'Affaires. In his oral statement Mr. Owen referred to the Ramsey Clark mission. Id. at 26.

25 The letter will be found in paragraph 8 of the Order.

26 Text at note 2 supra.

27 Reprinted in 18 ILM 1644 (1979).

28 Verbatim Record, supra note 4, at 11.

29 [1976] ICJ Rep. 12-13. For comments on this case, see articles listed in notes 13 and 15.

30 [1976] ICJ Rep. 11 and 14, paras. 32 and 46.

31 Verbatim Record, supra note 4, at 37-39. Mr. Owen quoted a statement by U.S. Ambassador Donald McHeijry, which was discussed with all members of the Security Council. It reads as follows:

The United States wishes to place on the record that the adoption of this resolution by the Security Council clearly is not intended to displace peaceful efforts in other organs of the United Nations. Neither the United States nor any other Member intends that the adoption of this resolution shall have any prejudicial impact whatever on the request of the United States for the indication of provisional measures of protection by the International Court of Justice.

Id. at 39. As the Court made no comment on the statement, it is difficult to assess the significance it may have attached to it.

32 See Order, para. 8(4).

33 Order of November 21, 1927, [1927] PCIJ, ser. A, No. 12, 9-11, at 10. See in this connection the ICJ Order of June 22, 1973, in the Nuclear Tests cases, in which the Court called upon France to avoid nuclear tests causing the deposit of radioactive fallout on Australian territory. [1973] ICJ Rep. 99, 106. And see also the dissenting opinions of Judges Forster and Gros, who recalled the Chorzdw principle and based their dissent partly on that ground. Id. at 113 and 123, respectively.

34 Verbatim Record, supra note 4, at 36.

35 Order, para. 28 (emphasis supplied).

36 Ibid.

37 In the final submissions filed with the Court on December 12, 1979, the United States asked the Court to indicate the following measures:

“First, that the Government of Iran immediately release all hostages of United States nationality and facilitate the prompt and safe departure from Iran of these persons and all other United States officials in dignified and humane circumstances.

Second, that the Government of Iran immediately clear the premises of the United States Embassy, Chancery and Consulate in Tehran of all persons whose presence is not authorized by the United States Charge d'Affaires in Iran, and restore the premises to United States control.

Third, that the Government of Iran ensure that, to the extent that the United States should choose, and Iran should agree, to the continued presence of United States diplomatic and consular personnel in Iran, all persons attached to the United States Embassy and Consulates should be accorded, and protected in, full freedom of movement, as well as the privileges and immunities to which they are entitled, necessary to carry out their diplomatic and consular functions.

Fourth, that the Government of Iran not place on trial any person attached to the Embassy and Consulates of the United States and refrain from any action to implement any such trial; and that the Government of Iran not detain or permit the detention of any such person in connection with any proceedings, whether of an ̒international commission or otherwise, and that any such person not be required to participate in any such proceeding.

Fifth, that the Government of Iran ensure that no action is taken which might prejudice the rights of the United States in respect of carrying out of any decision which the Court may render on the merits, and, in particular, neither take, nor permit, action that would threaten the lives, safety, or well-being of the hostages” [quoted by Court, Order, para. 12].

38 This is from Mr. Owen's oral statement, Verbatim Record, supra note 4, at 31.

39 [1976] ICJ Rep. 11, para. 32.

40 Id., para. 33.

41 Ibid.

42 Text at note 38 supr.

43 Verbatim Record, supra note 3, at 31. In support of this position, Mr. Owen referred to the case concerning the Denunciation of the Treaty of November 2nd, 1865, between China and Belgium decided by the Permanent Court of International Justice. In that case, which involved protection for nationals and property, and performance of consular functions, the Court granted measures on the ground that the injury expected to occur during the pendency of the case “could not be made good by the payment of an indemnity or by compensation or restitution in some other material form.” [1927] PCIJ, ser. A, No. 8, at 6.

44 See recent study by the Department of State, Pub. No. 8940, The Secretary'S Report to the President on Reform and Restructuring of the U.N. System 16 and 18 (1978).

45 See Gross, , Bulgaria Invokes the Connally Amendment, 56 AJIL 357 (1962)CrossRefGoogle Scholar.