institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." In regard to the U.S. commitment in par. 11 of the Declaration of the Government of the Democratic and Popular Republic of Algeria to withdraw all claims then pending against Iran before the International Court of Justice, the United States through its Deputy Agent at The Hague, Thomas J. Dunnigan, informed the Court of the settlement under the Algiers Accords (in a letter dated Apr. 6, 1981, and a further explanatory letter, dated May 1, 1981) and requested that all proceedings then pending before the Court relating to U.S. claims against Iran for reparation be discontinued. See, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Pleadings, Oral Arguments, and Documents (I.C.J. 1980), pp. 524-526. On May 12, 1981, the Court directed removal of the case from the list. For the Court's order, see I.C.J. Reports 1981, p. 45. In regard to the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Government of the Islamic Republic of Iran, see this Digest, Ch. 9, §3, ante; American Foreign Policy: Current Documents, 1981 (1984), pp. 737-741. See, also, this Digest, Ch. 13, §1, ante. § 3 Judicial Settlement; The International Jurisdiction of the Court The United States Memorial submitted to the International Court of Justice on January 15, 1980 in the second phase of the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), discussed in Part III, "The Jurisdiction of the Court", the four treaties, three multilateral and one bilateral, each one of which provided an "independent and sufficient" basis for exercise of the Court's compulsory jurisdiction over the dispute. Part III expanded upon the jurisdictional argument, relying upon the same treaties, which the United States presented when applying to the Court for provisional measures of protection. (The Court indicated such measures in its order of December 15, 1979; see this Digest, Ch. 4, §1, ante.) Under Subpart A, Part III discussed, first, Article I of the Optional Protocols to the Vienna Conventions on Diplomatic and Consular Relations (1961, 1963), which reads identically in each: Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application_made by any party to the dispute being a Party to the present Protocol. Tracing the "clarity and precision" of Article I to its origin in a 1956 recommendation of the Institute of International Law, the Memorial addressed in Part III. A the following points: (1) the satisfaction in the instant case of Article I's stated prerequisites for the Court's jurisdiction (first, the existence of a 'dispute', and second, one that “must arise out of the 'interpretation or application' of the Convention"); (2) the "natural and ordinary meaning of the Optional Protocols"; and (3) arguments, based upon the provisions of the Optional Protocols, which might conceivably be raised against the Court's jurisdiction. Proceeding to such possible arguments, the Memorial noted under point (3) that the principal argument would probably be, “in essence," that the United States application had been "prematurely" filed, since it had been filed before expiration of a two-month period following notification by the United States to Iran that a dispute existed. Under point (4) of Part III.A the United States Memorial characterized this argument as one resting on "fallacious premises" and took the position that there was no obligation under Articles II and III of the Optional Protocols to resort to arbitration or conciliation, respectively, before resorting to the Court. The Memorial stated, in part: Articles II and III do not require a two-month waiting period prior to resort to the Court under Article I. Instead, these articles simply point out to the parties the possibility, if they mutually so desire and agree, of resorting to arbitration or conciliation in preference to submission of the dispute by unilateral application to the Court. The critical clause of Articles II and III is purely permissive "the parties may agree"-and contains no mandatory element. This is language which empowers, not language which obligates. The essential purpose which emerges from the language and structure of Articles I, II, and III was that of making clear that a party which in good faith explores the possibility of resort to arbitration or conciliation, or even a party which accepts such an approach in principle subject to the negotiation of an acceptable compromis, does not thereby waive its right to apply to the Court if final agreement on a compromis is not reached. As Mr. Ruegger has written in connection with the Optional Protocols: Ce Protocole est souple-dans l'esprit de la Resolution de l'Institut-il prévoit l'arbitrage à côté de la juridiction et fait également une place aux autres méthodes éprouvées de reglement de différends. Mais, ce qui est l'essentiel, il est vraiment obligatoire, ne laissant aucune échappatoire de procédure. (Ruegger, "Clauses Arbitrales et de Juridiction," in Recueil d'Etudes de Droit International en Hommage à Paul Guggenheim, at pp. 687, 695 (1968).) (Italics added) This purpose is confirmed by the relevant historical context. As has already been mentioned, the Optional Protocols to the Vienna Conventions of 1961 and 1963 were modeled after the 1958 Optional Protocol to the 1958 Conventions on the Law of the Sea. These three substantive conventions were among the first of the codification conventions adopted under United Nations auspices, and there was, in this context, a particular significance to defining the role of the Court in relation to these conventions. There had been a considerable body of opinion, expressed for example by some members of the Institute of International Law during the course of the Institute's work on a model clause conferring compulsory jurisdiction on the Court,6 that the International Court of Justice, as the principal judicial organ of the United Nations, should be the sole forum for the settlement of disputes relating to the interpretation or application of general multilateral conventions. This point of view did not prevail, it being considered that the interest of the international community in the uniform interpretation or application of these texts did not justify such an extraordinary limitation on the right of the parties mutually to agree to settle their dispute by resorting to other fora. Against the background of this debate, it is not at all surprising to find that the Optional Protocols include clauses expressly preserving freedom of choice of the parties. By making clear that a party which had been engaged for two months in an effort to agree finally on arbitration or conciliation nonetheless retained its right to apply to the Court in the event such efforts did not reach fruition, the Protocols closed a possible loophole in their comprehensive system of thirdparty dispute settlement. Clauses of this intent clearly do not have the effect of limiting the right conferred in unqualified terms in Article I. The foregoing analysis-which, in the view of the United States, conclusively establishes the jurisdiction of the Court under the Protocols to the Vienna Conventions-is reinforced by two further considerations. First, the Preambles to the Protocols demonstrate the intent of the Protocols to make recourse to the Court unconditional and not dependent upon joint pursuit by the parties of the options of arbitration or conciliation. They provide: Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period. . . (Italics added.) In this case the United States waited more than three weeks from the time the dispute arose before filing an Application in this Court-surely a "reasonable period" given the circumstances. Second, the texts of the Protocols in their official languages other than English correspond to the plain meaning which the English imports, thus demonstrating, perhaps even more pointedly than the English itself, that recourse to arbitration or conciliation is a mere option subject to mutual agreement. . . . 6 See, e.g., the views expressed during the 1956 session of the Institute by Mr. Giraud, ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL, Session de Grenade, 1956, at p. 185; by Mr. Hambro, ibid., at p. 190; by Mr. Rolin, ibid., at pp. 199-200; and prior to the 1954 session by Mr. Jenks, ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL, Session d'Aix-en-Provence, 1954, at p. 376. The desirability of drafting a clause in such a manner as to preserve the flexibility of the parties was also adverted to during the Vienna and Geneva Conferences. See United Nations Conference on Diplomatic Intercourse and Immunities, Offical Records, Vol. I, U.N. Doc. A/CONF.20/14 at p. 220 (Mr. Hu, China); United Nations Conference on Consular Relations, Official Records, Vol. I, U.N. Doc. A/CONF.25/16 at 254 (Mr. N'diaye, Mali); United Nations Conference on the Law of the Sea, Official Records, Vol. II, U.N. Doc. A/CONF.13/38 at 8 (Mr. Ruegger, Switzerland); ibid., at p. 9 (Mr. Verzijl, Netherlands). Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Pleadings, Oral Arguments, and Documents (I.C.J. 1980), pp. 145-146. Proceeding to a discussion, in point (5) of Part III.A, of the "travaux préparatoires", the Memorial set out relevant portions of the negotiating histories of the two Optional Protocols. At each of the Conferences adopting the respective Protocols, it showed, a proposal was presented that would clearly have required an attempt to arbitrate or conciliate the dispute before resorting to the Court, and in each case the proposal was rejected. The Memorial found instructive, moreover, the negotiating history of the Optional Protocol to the 1958 Conventions on the Law of the Sea, which had been the model for the Optional Protocol to the Vienna Convention on Diplomatic Relations (1961), that was in turn the model for the Optional Protocol to the Vienna Convention on Consular Relations (1963). For all of these reasons, the United States maintained, proceedings might be unilaterally instituted before the Court under Article I of the Optional Protocols "at any time after a dispute of the appropriate character has arisen", and, further, even if the Court did not accept the "compelling construction" of the Protocols, jurisdiction would nevertheless exist thereunder, in the circumstances of the case. Point (6) of Part III.A developed this argument: 6. THE FAILURE OF IRAN TO SEEK ARBITRATION OR CONCILIATION As indicated above, a party seeking to defeat this Court's jurisdiction in this case would presumably argue that Articles II and III of the Optional Protocols, when read together with Article I, create a required two-month waiting period; the theory would be that in a dispute between A and B, if A wanted to file an immediate Application to this Court and B preferred arbitration or conciliation, Articles II and III would preclude A from filing its Applica tion until the two months' waiting period had expired. A proponent of such an interpretation would have to concede, however, that in such a situation the potential applicant would retain the right to reject arbitration or conciliation and thus the right to insist upon proceeding in this Court. That being so, the only right enjoyed by his opponent under such an interpretation of the Optional Protocols is a right, existing for a maximum of two months, to try to convince the potential applicant that he should agree to arbitration or conciliation in preference to resort to the Court. That is, if the potential respondent really wishes in good faith to proceed by way of arbitration or conciliation, he should be given, arguendo, a two-month opportunity to pursue that goal. It by no means follows that the same right should be enjoyed by one who has no interest whatever in either arbitration or conciliation. Quite the contrary, it would be completely anomalous to allow such a party to insist upon a two-month waiting period and to seek dismissal of a premature Application on the ground that the applicant should have afforded the respondent a two-month opportunity to pursue a goal in which the respondent in fact had no interest whatever. Such a rule would allow every violator of international law an automatic period of freedom from litigation without any justification whatever and totally without regard to the urgency, if any, of the applicant's need for judicial relief. For these reasons it could not justifiably be contended here that Iran was entitled to a two-month period of grace before the United States filed its Application. The fact is that Iran was made aware of the existence of a dispute between the parties as early as 4 November 1979. On that date the Government of Iran knew of the seizure of the Embassy and its personnel and was obviously aware that if it permitted their detention to continue, a dispute with the United States would necessarily exist. On that date also the United States, through its Chargé d'Affaires in Tehran, made repeated efforts to persuade responsible Iranian officials to protect the Embassy and its personnel and voiced repeated protests against their failure to do so, thus clearly giving notice of the existence of the dispute. On 7 November 1979, the President of the United States dispatched a special emissary to Tehran with instructions to deliver a formal protest to Iran's failure to protect the Embassy and its personnel, and although the protest could not actually be delivered (because the authorities in Iran refused to receive the special emissary), Iran clearly knew a protest was contemplated. The United States regards as indisputable the proposition that Iran was on notice of the existence of a dispute at least as early as 7 November. 12 Thereafter the United States permitted more than three weeks to elapse-weeks of extraordinary anxiety regarding the safety and well-being of the hostages-before filing the Application instituting proceedings in this case. The United States thus allowed Iran more than a reasonable time, prior to the filing of the Application, to give notice of a desire for arbitration or conciliation if any such desire existed. In fact, however, at no point during that threeweek period did the Government of Iran evince the slightest interest in resolving the dispute by arbitration, conciliation or any other means. Indeed, throughout the entire period from 4 November |