Sovietskoye Gosudarstvo i Pravo, No. 1, 1952
On October 19, 1951, the Security Council examined Great Britain’s resolution concerning the Anglo-Iranian conflict over the nationalization of the oil industry in Iran, and proposing to halt the process of nationalization.
The Security Council, in conformity with Article 27, Paragraph 3 of the UN Charter, resolved to postpone the examination of this case by eight votes to one (the Soviet vote), with two abstentions (including Great Britain), holding that it had already been submitted to the International Court, which was to decide whether or not this question is within its competence. The USSR voted against this, pointing out that the nationalization of Iranian oil is an internal affair of Iran and consequently is beyond the Council’s competence (See Article II, Paragraph 7, of the UN Charter).
How did this case reach the International Court and what was its decision?
The Court was obliged to preface the examination of this case with a few words on the circumstances and procedure under which the nationalization of the Iranian oil industry occurred.
In 1901 British adventurer D’Arcy was granted a concession in the Khuzistan oil fields (southern province of Iran) by the Persian government. Under the system of capitulation which prevailed in Persia at the time, this concession created “a state within a state,” and virtually handed the British imperialists vast expanses of Iranian territory.
The victory of the Great October Socialist Revolution—the turning point in world history1—radically altered the balance of power in the international arena. The movement of national liberation among the Iranian people could have developed under new and more favorable circumstances.
In 1928 the Iranian people, casting off the chains of this system of capitulation, were officially granted equal rights with other peoples. But the concessionary treaty covering the oil fields remained in force. Under the harassment of the British imperialists and the League of Nations, the Iranian government concluded a new and enslaving concessionary treaty with the Anglo-Iranian Oil Company in April 1933.
The treaty of 1933 granted the Company exclusive rights to search for, extract, and refine petroleum, and to sell oil products over a territory of 100,000 square miles. In this territory, the government permitted the Company to build railroads and ports, to open airlines, to install telegraph and telephone lines, etc., and to import and export petroleum products and materials needed by the Company on a tariff-free basis. Thus this concession established a semi-colonial regime in Iran.
For its part, the Company guaranteed the Iranian government a negligible deduction—only 1,000,000 pounds sterling a year.
Upon the expiration of this concession (December 31, 1993), its property was to be handed over to Iran.
The Concessionary Treaty contained a provision according to which the concessionaire could surrender the concession by giving two year’s notice (Article 25), but the Iranian government could not annul the concession. Article 21 of the treaty stated that its terms “shall not be altered in the future either by general or special legislation, or by administrative measures or any acts whatever the executive authorities.”
According to Article 22 all differences over the concession were to be settled through arbitration. Each of the parties appoints an arbitrator, and within two months they appoint an umpire. If the two arbitrators cannot agree during this period, the umpire is to be appointed by the President of the Permanent Court of International Justice, and he is to be neither Iranian nor British (nor a subject of the British Empire). If one of the parties (that is, Great Britain or Iran) does not appoint its arbitrator, the President of the Permanent Court is to nominate a sole arbitrator at the request of the other party.
The Arbitration Court can annul the concession only in the event that Iran is not paid its awarded sum within one month. Thus this concession was “guaranteed,” as it were, until 1933.
The recent events which we are witnessing today and which signalize the end of unbroken British rule in Iran stemmed from the movement of national liberation in the countries of the Near and Middle East, which even the “joint efforts” of the Anglo-American imperialists (Harriman’s mission) are unable to quell.
Of course the “joint” efforts of the Anglo-American imperialists are a fraud of the first water. Even at the Fourteenth Congress of the ACP(b) Comrade Stalin pointed out that “…a mortal struggle is raging between the British and American oil companies….”2
On March 20, 1951, Iran passed a law which nationalized the oil industry throughout the country, and on May 1, 1951—a law to enforce the edict of nationalization.
A commission of five senators and five deputies was created under the chairmanship of the Minister of Finance (Article I). The Iranian government was authorized through this commission to expropriate the properties of the former Anglo-Iranian Oil Company and in the event that it presented any claims to the Iranian government, to reserve 25 percent of the net profits for the eventual extinguishment of these claims (Article 2). Within three months the government was to submit, through this commission, its conclusions, which were to be ratified by both houses (Articles 3, 8, and 9). It was the duty of this commission to supervise the operation and the accounts of the Company (Article 4) and the drafting of a statute for the new national Iranian company (Article 5). This law provides that Iranians be sent abroad to study the oil business and that national cadres be formed (Article 6). The purchasers of petroleum products are guaranteed the same assortment which they had received prior to January 1, 1948 (Article 7).
As early as May 8, 1951, the Anglo-Iranian Oil Company addressed a letter to the Iranian Premier, proposing that the question of operation be submitted to arbitration, as provided by Article 22 of the Concessionary Treaty. At the same time the Company appointed a certain Lord Radcliff as its arbitrator.
In reply to this letter, the Iranian Minister of Finance declared on May 20 that
Regardless of this correspondence, the British government was already involved in this conflict by May 2, 1951, since it protested against the measures of the Iranian government in relation to the Company, since it had warned of the possible rise of “particularly grave consequences,” and since it had proposed to settle the conflict through diplomacy, inasmuch as the Company is a British concern (registered in Great Britain) and the British government holds most of the stock in the Company. At the same time the British government affirmed its right to have the dispute settled in the International Court.
On May 26, 1951, the British government3 appealed to the International Court, pleading that Iran had recognized the mandatory jurisdiction of the Court.4
In this declaration, the British government affirmed that the Iranian government had violated the “Convention” of 1933, had permitted a breach of justice in relation to the legal person of British nationality, and has committed an international delict.
Pleading that every state is entitled to protect its citizens abroad, the British government petitioned the court as follows:
On July 5, 1951, the Court took the case under advisement and set a date for the submission of memoranda by the parties: September 3, 1951—for the British government, and December 3—for the Iranian government.
The British government, taking cognizance of the fact that the case would not be examined in essence before 1952, put the question of security measures, in accordance with its declaration, to the Court as early as May 26, 1951.
Later, on June 22, it submitted a special declaration on this question, requesting that this question be examined in conformity with Article 41 of the Statute and Article 61 of the Rules.5
The British government anticipated that circumstances might arise before the dispute was examined in essence, which would make it impossible, in case the Court passed a resolution favorable to Great Britain, to carry it out: namely,
On this basis, the British government requested the Court to rule that
In conclusion, the British government requested that the Court take up the question of security measures as soon as possible, inasmuch as this was compatible with the Statute and the Rules of the Court.
Speedily satisfying this request, the Court met as early as June 30—that is, only eight days later—and it passed the “security measures” on July 5, 1951, in compliance with the British declaration.6
This resolution, adopted on July 5, 1951, by a majority of ten to two judges, was very poorly substantiated.
Only representatives of the British government attended the session of the Court on June 30. The Iranian government refused to testify in court, pleading that the Court was incompetent to examine a case of nationalization arising out of the Iranian state’s exercise of its sovereign rights.
A majority in the Court recognized that the British government was acting in behalf of the Anglo-Iranian Oil Company by conducting its diplomatic defense. As to the security measures in compliance with the British declaration, a majority held that this declaration concerning a violation of international law by the Iranian government
Whereas in the first two points the Court addressed both parties and endeavored to give the impression that it was treating them equally, from the third point on, it pinned the entire responsibility on the Iranian government.
The Court ruled
The separate opinion of two judges—Winiarski of Poland and Badawi of Egypt—links the question of security measures with the question of the Court’s competence: the competence of a national court is assumed; the competence of an international court rests on the consent of the parties. They believe that the application of security measures in international law is, on the whole, permissible only in special cases, inasmuch as this may be regarded as intervention in the internal affairs of a sovereign state.
Furthermore, Badawi and Winiarski argue that during the twenty-year existence of the Permanent Court of International Justice, it passed resolutions on security measures only in two instances(and such requests were made six times),7 being convinced in its competence.
Iran declined to participate in the examination of the present case, declaring that the Court was incompetent. Both judges likewise believe that this is true, and consequently they are unable to agree to the application of security measures.
How did the Iranian government react to the court ruling of July 5?
On July 9, Iranian Foreign Minister Kazemi dispatched a telegram to the UN Secretary-General and to the secretary of the Court, stating that
This does not include “agreements of private and intrastate law—particularly concessions which states grant their citizens and foreigners with the purpose of exploiting natural resources, as well as commercial questions.” “Questions concerning Iran’s sovereignty and questions which are exclusively within its internal competence” (as was also pointed out in the declaration of 1930) are beyond the Court’s competence;
Great Britain’s declaration to adopt security measures, the telegram went on to say, was received in Tehran on June 25, and a Court session had already been set for June 30; such “unexpected haste” deeply puzzled the government and people of Iran. The ruling handed down by the Court on July 5, 1951, would (had it been carried out) have caused grave and shameful consequences for international law and justice, and would have resulted in the establishment of a new system of capitulation favorable to the citizens of the great powers and detrimental to the interests of small and weak countries. The Court intervened in Iran’s internal affairs—in particular, through the institution of the so-called supervisory commission—and it not only violated its own competence but also transgressed the principle of freedom for the peoples. The Iranian Minister—mindful of the fact that “the Court had deviated from the path of justice, thereby shattering the confidence it enjoyed”—declared that the Iranian government would revoke its declaration of October 2, 1930, in which it recognized the mandatory competence of the International Court.
The arguments of the Iranian government are well founded.
It was precisely this crux of the conflict that the majority in the International Court, terrified at the people’s act of nationalizing an enslaving foreign concession, refused to understand. The Court, realizing that it was faced mainly by a political and not strictly by a juridicial question, had to recognize its own incompetence.
Despite certain ambiguities in the text of Article 61 of the Rules of the Court, it follows from the very essence of international justice that the first question confronting the International Court is the question of its competence. Only after the Court has ascertained its own competence (not expressing it a priori as in the present case) may it adopt a resolution on security measures.
Thus the International Court has so far adopted merely the resolution on “security measures,” which has aroused indignation in Tehran and all democratic circles of the world. It would be impossible to expect any other attitude toward this ruling from all democratic-minded people, inasmuch as the majority in the Court has been supporting the schemes of Anglo-Iranian reaction and attempting to stalemate the struggle for national liberation among the Iranian people.
The Court must issue a ruling on the essence of the case. What could this resolution be? It is difficult to foresee, but it may be supposed that the Court will fail to establish its competence after Iran’s renunciation of its own declaration of October 2, 1930.
But regardless of the Court’s decision, it is beyond doubt that the Iranian people will win ultimate victory in their struggle for national liberation and for just and peaceful relations among nations.