The Claims of Dual Nationals Before the Iran-United States Claims Tribunal: Some Reflections

Leiden Journal of International Law

Volumn 10, Issue 1, 1997, Pages 21-47

  Aghahosseini, Mohsen ^a  

^a NONE

Author keywords

dispute settlement; dual nationality; Iran United States Claims Tribunal

Indexed keywords

EID: 84928436416     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156597000034     Document Type: Article

References (54)

1. Two of the deckraiions are most relevant for the present purposes: the Declaration of the Government of the Dcmotratic ami Pupulai Rcpublii; of Algeria (General Declaration) of 19 January 1981, and the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration) of 19 Januaiy 1981.
2. Art. II, para. 1, Claims Settlement Declaration.
3. Art. VII, para. 1, Claims Settlement Declaration.
4. Nasser Esphahanian v. Bank Tejarat, 2 Iran-US CTR, (hereinafter the Esphahnian case).\
5. Id, at 157.
6. The claimant's argument was also supported by the government of the United States.
7. Art. 31(3.c), Vienna Convention on the Law of Treaties, 8 ILM 679 (1969), Resort to international law for guidance, in cases of ambiguities in the text of the Declarations, is further justified under Article V of the Claims Settlement Declaration, which states: “The Tribunal shall decide ail cases on the basis of respea for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.”
8. Esphahanian case, Vienna Convention on the Law of Treaties note 4, at 161.
9. Id., at 166.
10. Esphahanian case, Id note 4, at 166.
11. Id., at 168.
12. Regarding a second award issued on the same dace by the same chamber on a dual-national claim, see Attaollah Golpira v. The Government of the Islamic Republic of Iran, 2 Iran-US CTR 171. In that case, the majority, composed of the same members as in Esphabanian, followed the rulings in Esphahantan, although on the facts of the case they dismissed the claim on the merits.
13. Esphahanian case, 2 Iran-US CTR 225 (Dissenting Opinion of Dr. Shafie Shafeiei on the Issue of Dual Nationality).
14. Iran's request is quoted in 5 Iran-US CTR 252-253.
15. Under which “[a]ny question concerning the interpretation or application of this Agreement shall be decided by the Tribunal upon the request of either Iran or the United Stales.*
16. Islamic Republic of Iran v. The United States, Case No. A/18, 5 Iran-US CTR 251.
17. Id., it 265.
18. Id., at 265-266.
19. Case No, A/18, 5 Iran-US CTR 275, (The Dissenting Opinion of the Iranian Arbitrators).
20. See, e.g., Professor F. Rigaux's lecture, Admissihility of Claims Brought by Dual Nationals Before Intematiomd Tribunals, and a Scholarly Criticism of the Decision by the Iran-United Suites Claims Triimndl on this Subject, in The Hague Academy of International Law, 29 May 19S4; Professor B. Stern, Les questions de mtiomlite des persotmes physiejues et de na-tionalite et controk des personnes morales devant le Tribunal des differends Irano-Americans, 30 Annuaire Frangais de Droit International 425, 438-440 (1984).
21. A/18 Decision, Rigaux's lecture, Admissihility of Claims Brought by Dual Nationals Before Intematiomd Tribunals, and a Scholarly Criticism of the Decision by the Iran-United Suites Claims Triimndl on this Subject note IS, at 264.
22. Esphahanian case, A/18 Decision note 4, at 163, quoting the resolution voted in 188S by the Institute of International Law, and cited with approval in Barthez de Montfort case (France v. Germany), 6 Tribunaux Arbitraux Mixtes 806 (1926).
23. A/18 Decision, Esphahanian case, A/18 Decision note 4, at 163, quoting the resolution voted in 188S by the Institute of International Law, and cited with approval in Barthez de Montfort case note 18, at 253 (emphasis added).
24. Esphahanian case, supnt note 4, at 163; A/18 Decision, A/18 Decision note 18, at 263.
25. Id., at 166.
26. See, eg., Art. 1 of the Hague Convention Concerning Certain Questions Relating to the Conflict of Nationality Laws, 179 LNTS 89 (1930): “It is for each State to determine under its own law who are its nationals.” See also, id,, Art. 2: “Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.”
27. Id.
28. Nottebohm case, mpm note II, at 26.
29. “[T]he Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on the pare of Guatemala to recognize its sea Id., at 20 (emphasis added).
30. Esphahanian case, “[T]he Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on the pare of Guatemala to recognize its sea Id note 4, at 166-167.
31. The court in Nottehohm speaks, for instance, of “real and effective nationality […] based on stronger factual ties between the person concerned and one of the States whose nationality is involved.” Nottebohm case, Esphahanian case note 11, at 22. It is the necessary implication of this, ihen, that the other nationality-the one based on weaker ties-is always unreal and ineffective; as the cases before the Tribunal readily testify, it is simply not true.
32. J.B. Moore, 3 History and Digest of International Arbitration 2621 (1898).
33. D.W. Bowett, Estoppel Before International Tribunals and Its Relation to Acquiescence, 33 BYIL 176 (1957).
34. Esphahanian case, Estoppel Before International Tribunals and Its Relation to Acquiescence-note 4, at 166.
35. Flegenheimer case (United Stares v. Italy), 14 United Nations Reports of International Arbitral Awards 327, 378 (1958).
36. Id.
37. Faith Lita Khosrowshahl, et ai. v. The Islamic Republic of Iran, et al., decided in 1990. See 24 Iran-US CTR 45.
38. Saghi case, The Islamic Republic of Iran note 47, at para. 54.
39. In fact, this is simply a misinterpretation of the clear text of the pertinent laws of Iran, hut that is not the point here.
40. Mahmoud case, In fact, this is simply a misinterpretation of the clear text of the pertinent laws of Iran, hut that is not the point here note 49, at 354 (emphasis added).
41. Art, VII, para. 2, Claims Settlement Declaration.
42. That is, 19 January Lysl. I'he penod m between is commonly referred to in the Tribunal's awards as ‘the relevant period’.
43. A/18 Decision, I'he penod m between is commonly referred to in the Tribunal's awards as ‘the relevant period’ note 18, at 265.
44. Esphahanian case, A/18 Decision note 4, at 166.
45. A/18 Decision, Esphahanian case note 18, at 265-266.
46. Id., at 8-12.
47. G. Fitzmaurice, The Law and Procedure of the International Court of hstke, 1951-4, 34 BYIL 12-13 (1958) (footnotes omitted).
48. See Ambatielos case (Greece v. United Kingdom), Jurisdiction, 1952 ICJ Rep. 22-33; Notte-bohm case (Liechtenstein v. Guatemala), Jurisdiction, 1953 ICJ Rep. 122.
49. Rouhollah Karubian v. The Government of the Islamic Republic of Iran, Award No. 569-419-2 (6 March 1996) (not yet published).
50. Case No. A/18, The Government of the Islamic Republic of Iran note 18, at 273 (Concurring Opinion of Willem Riphagen).
51. Id; at 274 (emphases in original).
52. Robert R. Schott v. Isiamic Republic of Iran, sttprs note 47, at 203.
53. Id., at 218.
54. Case No. A/18, Id note 18, at 274 (Concurring Opinion of Willem Riphagen).