Request for interpretation of Article VII, paragraph 1, of the Claims Settlement Declaration in regard to whether the Tribunal has jurisdiction over claims against Iran by persons who are, under United States law, citizens of the United States of America and are, under Iranian law, citizens of the Islamic Republic of Iran.

Majority Opinion

I. Procedural Background

A large number of claims have been filed against Iran by claimants who, under United States law, are United States citizens and, under Iranian law, are Iranian citizens. . . .

On 25 February 1983, Iran requested "the Full Tribunal's view concerning the inadmissibility of the claims filed by the nationals of Iran against the Government of the Islamic Republic of Iran". . . .

The United States filed a reply to Iran's request on 25 April 1983, "referring to the Memorial it had filed on 19 November 1982. . . .

A hearing an the dual nationality question was held before the Full Tribunal on 10 and 11 November 1983.

II. Issue Presented

The question now before the Tribunal is whether the Claims Settlement Declaration grants the Tribunal jurisdiction over claims against Iran filed by persons who, during the relevant period which is from the date the claim arose until 19 January 1981, were Iranian citizens under the law of Iran and United States citizens under the law of the United States.

The relevant provisions of the Claims Settlement Declaration which the Tribunal must interpret are Article II, paragraph 1, and Article VII, paragraph 1 (a).

Article II, paragraph 1, states:

An international arbitral tribunal (the Iran-United States Claims Tribunal) is hereby established for the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States . . . .

A "national" of Iran or of the United States, as the case may be, means (a) a natural person who is a citizen of Iran or the United States; . . . .

A. Contentions of the Islamic Republic of Iran

Iran takes the position that persons, who under Iranian law are Iranian citizens, may not bring before this Tribunal claims against Iran, irrespective of whether they may also be United States citizens. Iran's argument is summarized in the following paragraphs.

The jurisdiction of the Tribunal in this case is to be determined by reference to the Claims Settlement Declaration and particularly Article VII, paragraph 1 (a), thereof. The parties bound by the Declaration of the Government of the Democratic and Popular Republic of Algeria (the "General Declaration") and the Claims Settlement Declaration (collectively referred to as the "Algiers Declarations") intended the function of the Tribunal to be the adjudication of international claims on the basis of the exercise of diplomatic protection. Therefore Article VII, paragraph 1 (a), interpreted in accordance with rules of international law, must be read in a manner consistent with the customary international law relevant to the exercise of diplomatic protection.

The plain language of this Article excludes jurisdiction over claims brought by Iranian citizens who may at the same time be United States citizens. That the word "national" is defined as a "citizen" does not indicate that the parties intended to depart from the traditional rule of diplomatic protection, which requires the aggrieved person to possess the nationality of the claimant State according to that State's internal laws. In addition, the ordinary meaning of "national" is a person who is a national of one state and one state only.

Dual nationality has been recognized as an abnormal status and thus can not fairly be said to be within the ordinary meaning of the term "national". Thus the word "national" in Article VII, paragraph 1 (a) , encompasses solely persons with exclusive Iranian or United States nationality. In addition, the use of the disjunctive article "or" excludes a person who would be simultaneously a citizen of Iran and the United States. . . .

The international law pertaining to the exercise of diplomatic protection clearly prohibits claims by persons who possess the nationality of both the claimant and respondent States. This prohibition is evidenced by the traditional sources of international law. State practice has traditionally supported the proposition that dual national claims are prohibited. Even if American practice has changed since world War II, such recent practice is not sufficient to displace the traditional rule. . . .

B. Contentions of the United States of America

The position of the United States is summarized in the following paragraphs.

The United States takes the position that by the express terms of the Claims Settlement Declaration the Tribunal has jurisdiction over claims of a United States citizen against Iran whether or not that person is also a citizen of Iran. The definition of "national" by reference to citizenship under national law was intended to make that clear. The United States submits that only if it is determined that the Claims Settlement Declaration is in any way ambiguous on this point should there be resort to international law as a guide to interpreting the language of the Declaration. In the event the Tribunal deems it necessary to resort to international law to interpret such language, modern international law would result in an interpretation which would make the determination of jurisdiction depend on the dominant and effective nationality of each dual national claimant. . . .

If customary international law is to be applied, the Tribunal should, in each case involving a dual national, resolve the issue by determining the dominant and effective nationality of the dual national claimant. The principle of effective nationality has long been applied to resolve conflicts of nationality in international arbitration. The development of the law has resulted in a departure from the older theory of absolute non-responsibility which held States absolutely non-responsible for the claims of persons who were nationals of both the claiming and respondent States. That absolute non-responsibility theory has been much criticized on the following grounds: that it is an inaccurate oversimplification of the body of precedents; that it is based on a theoretically true, but in practice false, assumption that such claimants would otherwise enjoy the protection of two nations; that it gives inequitably undue weight to municipal laws providing for nationality on the basis of jus sanguinis or restricting voluntary expatriation; and that it requires international tribunals to abstain from international law determinations of the nationality of the claimants, and thereby harms nationals of States whose nationality laws make it impossible or difficult to change nationality and punishes them because of nominal and possibly irrelevant ties to the respondent State. As a consequence of such criticisms, the absolute non-responsibility theory has been rejected in favour of determinations of effective nationality in the major post-war international precedents. . . .

IV. Reasons for Decision

As the Tribunal has previously held, and as the Parties have agreed, the Algiers Declarations constitute a treaty under international law and should be interpreted in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties. . . .

Paragraph 3(c) of Article 31 of the Vienna Convention directs the Tribunal to take into account "any relevant rules of international law applicable in the relations between the parties." There is a considerable body of law and legal literature, analyzed herein, which leads the Tribunal to the conclusion that the applicable rule of international law is that of dominant and effective nationality. . . .

2. Precedents

. . . The two most important decisions on the subject in the years following the Second World War have had a decisive effect. First, the International Court of Justice, in the Nottebohm Case, on 6 April 1955. . . . While Nottebohm itself did not involve a claim against a State of which Nottebohm was a national, it demonstrated the acceptance and approval by the International Court of Justice of the search for the real and effective nationality based on the facts of a case, instead of an approach relying on more formalistic criteria. The effects of the Nottebohm decision have radiated throughout the international law of nationality.

A few months later, an 10 June 1955, the Italian-United States Conciliation Commission set up by application of the peace Treaty of 1947, decided in the Merge Case that the principle ". . . based on the sovereign equality of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming State." . . . The Commission then applied this same analysis in numerous other similar cases involving dual nationals. The Franco-Italian Conciliation Commission also decided several claims of dual nationals according to the "link theory". . . .

3. Legal Literature

Support for the principles applied in these cases is shared by some of the most competent international lawyers. Basdevant wrote that effective nationality must prevail, because nationality is the juridical translation of a social fact. Maury . . . expressed his doubts about the alleged rule forbidding a State to act against another State in cases of dual nationality, and concluded that the Nottebohm decision has a general scope. . . .

Recent legal literature has suggested that the "actually dominant theory". . . is, at least before international tribunals, the effective nationality theory. . . .

This trend toward modification of the Hague Convention rule of non-responsibility by search for the dominant and effective nationality is scarcely surprising as it is consistent with the contemporaneous development of international law to accord legal protections to individuals, even against the State of which they are nationals. . . .

Thus, the relevant rule of international law which the Tribunal may take into account for purposes of interpretation . . . is the rule that flows from the dictum of Nottebohm, the rule of real and effective nationality, and the search for "stronger factual ties between the person concerned and one of the States whose nationality is involved." In view of the pervasive effect of this rule since the Nottebohm decision, the Tribunal concludes that the references to "national" and "nationals" in the Algiers Declarations must be understood as consistent with that rule unless an exception is clearly stated. As stated above, the Tribunal does not find that the text of the Algiers Declarations provides such a clear exception.

For the reasons stated above, the Tribunal holds that it has jurisdiction over claims against Iran by dual Iran-United States nationals when the dominant and effective nationality of the claimant during the relevant period from the date the claim arose until 19 January 1981 was that of the United States. In determining the dominant and effective nationality, the Tribunal will consider all relevant factors, including habitual residence, center of interests, family ties, participation in public life and other evidence of attachment.

To this conclusion the Tribunal adds an important caveat. In cases where the Tribunal finds jurisdiction based upon a dominant and effective nationality of the claimant, the other nationality may remain relevant to the merits of the claim.

Dated, The Hague 6 April 1984
 
 

Iranian Dissent

The Iranian members of the Tribunal make the following Declaration:

IN THE NAME OF GOD

The present Decision is yet another clear manifestation of a bad faith interpretation rendered by this Tribunal. The composition of the so-called neutral arbitrators, itself the result of the imposed mechanism of the UNCITRAL Rules, is so unbalanced as to have made the Tribunal lose all credibility to adjudicate any dispute between the Islamic Republic of Iran, as a Third World revolutionary country, and the United States, as the symbol of the world capitalism. The Tribunal is now composed of two Swedish arbitrators, one of whom persists in staying on despite the fact that he was rightly disqualified by the Islamic Republic prior to the commencement of the Tribunal's judicial proceedings over two years ago, and of an agent of the Dutch Government's Ministry of Foreign Affairs, the NATO military ally of the United States.

The doctrine of non-responsibility of states vis-a-vis their nationals before international tribunals is based on the principle of the equal sovereignty of States and is supported, inter alia, by the 1930 Hague Convention, the 1949 Opinion of the International Court of Justice, the 1965 Resolution of the Institute of International Law, and by the practice of States. Its validity cannot be affected by the present Decision rendered merely to demonstrate loyalty to the United States and to damage the prestige of the Islamic Republic and the Third World.

The adherence of the Islamic Republic of Iran to the Algiers Declarations was based on the principle of equal sovereignty of States and on the United States' commitment not to further intervene in the internal affairs of Iran. The Islamic Republic shall never allow the infringement of its sovereign rights by a number of Iranian nationals who by resorting to the protection offered to then by the United States seek to evade the relevant Iranian law and jurisdiction and to resurrect a system of "capitulation" that was defeated by the long-lasting struggle of the Third World nations and particularly the Moslem nation of Iran.

As will be discussed in our Dissenting Opinion, the present Decision is void of any credibility.

Mahmoud M. Kashani

Shafie Shafeiei

Parviz Ansari