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[p 190]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 48 of the Statute of the Court and to Articles 31,
44, 45 and 80 of the Rules of Court,
Makes the following Order:
1. Whereas, on 2 November 1992, the Government of the Islamic Republic of
Iran (hereinafter "Iran") filed in the Registry of the Court an Application
instituting proceedings against the Government of the United States of
America (hereinafter "the United States") in respect of a dispute [p 191]
"aris[ing] out of the attack and destruction of three offshore oil
production complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several warships of the United States Navy
on 19 October 1987 and 18 April 1988, respectively";
whereas, in its Application, Iran, maintaining that those acts constituted
"a fundamental breach" of various provisions of the Treaty of Amity,
Economic Relations and Consular Rights between the United States of America
and Iran, which was signed in Tehran on 15 August 1955 and entered into
force on 16 June 1957 (hereinafter "the 1955 Treaty"), and of international
law, invoked Article XXI, paragraph 2, of the 1955 Treaty as the basis of
the Court's jurisdiction; and, whereas at the end of its Application, it set
out its claims as follows:
"On the basis of the foregoing, and while reserving the right to supplement
and amend these submissions as appropriate in the course of further
proceedings in the case, the Islamic Republic respectfully requests the
Court to adjudge and declare as follows:
(a) that the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by the Islamic Republic;
(b) that in attacking and destroying the oil platforms referred to in the
Application on 19 October 1987 and 18 April 1988, the United States breached
its obligations to the Islamic Republic, inter alia, under Articles 1 and X
(1) of the Treaty of Amity and international law;
(c) that in adopting a patently hostile and threatening attitude towards the
Islamic Republic that culminated in the attack and destruction of the
Iranian oil platforms, the United States breached the object and purpose of
the Treaty of Amity, including Articles 1 and X (l), and international law;
(d) that the United States is under an obligation to make reparations to the
Islamic Republic for the violation of its international legal obligations in
an amount to be determined by the Court at a subsequent stage of the
proceedings. The Islamic Republic reserves the right to introduce and
present to the Court in due course a precise evaluation of the reparations
owed by the United States; and
(e) any other remedy the Court may deem appropriate";
2. Whereas, on 8 June 1993, within the fixed time-limit, as extended by the
Order made by the President of the Court on 3 June 1993, Iran filed its
Memorial, at the end of which it made the following submissions: [p 192]
"In the light of the facts and arguments set out above, the Government of
the Islamic Republic of Iran requests the Court to adjudge and declare:
1. That the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by Iran;
2. That in attacking and destroying the oil platforms referred to in Iran's
Application on 19 October 1987 and 18 April 1988, the United States breached
its obligations to Iran, inter alia, under Articles 1, IV (1) and X (1) of
the Treaty of Amity and international law, and that the United States bears
responsibility for the attacks; and
3. That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by the
Court at a subsequent stage of the proceedings. Iran reserves the right to
introduce and present to the Court in due course a precise evaluation of the
reparation owed by the United States; and
4. Any other remedy the Court may deem appropriate";
3. Whereas, on 16 December 1993, within the time-limit fixed for the filing
of the Counter-Memorial, as extended by the Order made by the President of
the Court on 3 June 1993, the United States, referring to Article 79 of the
Rules of Court, raised a preliminary objection to the jurisdiction of the
Court, at the end of which it requested that the Court "decline to entertain
the case"; and whereas, by a Judgment dated 12 December 1996, the Court
rejected the "objection . . . according to which the Treaty of 1955 does not
provide any basis for the jurisdiction of the Court" and found
"that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the
Treaty of 1955, to entertain the claims made by the Islamic Republic of Iran
under Article X, paragraph 1, of that Treaty";
4. Whereas, on 23 June 1997, within the new time-limit fixed by the Order
made by the President of the Court on 16 December 1996, the United States
filed its Counter-Memorial, entitled "Counter-Memorial and Counter-Claim";
whereas it stated, in the introduction to that Counter-Memorial that, on the
one hand, "Part VI sets forth the US counterclaim in this case, which is
based on facts directly at issue in assessing Iran's claim" and, on the
other hand, "As required by Article 80 of the Court's Rules, this
counter-claim is 'directly connected with the subject-matter' of Iran's
claim, and 'cornes within the jurisdiction of the Court'"; whereas, in Part
VI of its Counter-Memorial, the United States sets out the factual
background, the reasons for which it considers that the Court [p 193] has
jurisdiction to hear the counter-claim and that the counter-claim is
admissible, and its submission that "Iran's actions against US vessels
violated Article X of the 1955 Treaty"; and, whereas at the end of the
Counter-Memorial, it made the following submissions:
"On the basis of the facts and arguments set out above, the Government of
the United States of America requests that the Court adjudge and declare:
1. That the United States did not breach its obligations to the Islamic
Republic of Iran under Article X (1) of the Treaty of Amity between the
United States and Iran, and,
2. That the claims of the Islamic Republic of Iran are accordingly
dismissed.
With respect to its counter-claim, and in accordance with Article 80 of the
Rules of the Court, the United States requests that the Court adjudge and
declare:
1. That in attacking vessels, laying mines in the Gulf and otherwise
engaging in military actions in 1987-1988 that were dangerous and
detrimental to maritime commerce, the Islamic Republic of Iran breached its
obligations to the United States under Article X of the 1955 Treaty, and
2. That the Islamic Republic of Iran is accordingly under an obligation to
make full reparation to the United States for violating the 1955 Treaty in a
form and amount to be determined by the Court at a subsequent stage of the
proceedings.
The United States reserves the right to introduce and present to the Court
in due course a precise evaluation of the reparation owed by Iran."
***
5. Whereas, by a letter dated 23 June 1997, filed at the same time as its
Government's Counter-Memorial, the Agent of the United States informed the
Court of the following:
"In connection with the Counter-Claim, the United States had requested on
March 26 that the Government of Iran enter into negotiations for the payment
of compensation to the United States for damages incurred from Iran's
actions, on the ground that they violated Article X of the 1955 Treaty. By
letter dated June 12, Iran replied to that request, proposing instead that
the Parties conduct negotiations on a broader range of subjects. Iran's
proposa1 in this respect was not acceptable to the United States.
Accordingly, the Parties have not agreed to enter into negotiations
regarding the matters involved in the US Counter-Claim"; [p 194]
and whereas the Registrar communicated a copy of that letter, together with
the Counter-Memorial, to the Agent of Iran;
6. Whereas, in a letter dated 2 October 1997, the Agent of Iran, referring
to that communication, stated as follows:
"In the Counter-Memorial and Counter-Claim of the United States dated 23
June 1997, paragraph 6.10, it was asserted that the Government of the
Islamic Republic of Iran has not agreed to enter into negotiations in
relation to the counter-claim. That statement was not, however, accompanied
by the correspondence which has been exchanged between the Parties.
In order fully to inform the Court on this question, I attach hereto copies
of [that correspondence]. The Court will see that, through this exchange of
letters, Iran did agree to discuss al1 legal issues arising between the
United States and Iran in relation to the period covered by the case before
the Court";
whereas, in that letter, he also stated the following:
"I should further observe that Iran has serious objections to the
admissibility of the United States counter-claim. It is Iran's position that
the counter-claim as formulated by the United States does not meet the
requirements of Article 80 (1) of the Rules. Iran requests a hearing on this
question, as provided for in Article 80 (3) of the Rules. Iran would wish,
prior to that hearing, to submit a brief statement explaining its objections
to the counter-claim. In light of the fact that the Vice-President has
scheduled a meeting with the Agents of the Parties on 17 October 1997 to
consider further proceedings in this case, I would hope that it will be
possible at that meeting to discuss, amongst other issues, the procedure and
modalities for the hearing under Article 80 (3) in relation to the
counter-claim";
and whereas the Registrar sent a copy of that letter and of its enclosures
to the Agent for the United States;
7. Whereas, on 17 October 1997, the Vice-President of the Court, acting as
President in the case by virtue of Article 13, paragraph 1, and Article 32,
paragraph 1, of the Rules of Court, held a meeting with the Agents of the
Parties in order to find out their views as to the further proceedings in
the case; whereas the two Agents agreed that their respective Governments
would submit written observations on the question of the admissibility of
the United States counter-claim; and whereas the Agent of Iran envisaged
that his Government would then present oral observations on the question;
8. Whereas, by a letter dated 20 October 1997, the Agent of the United
States, referring to the views expressed during that meeting, let it be
known that his Government [p 195]
"under[stood] that any order by the Court [would] limit the filing of these
submissions to the issue set forth in Rule 80 (3) of the Rules of Court, in
other words, to the connection of the counter-claim to Iran's claim";
and whereas the Registrar communicated a copy of this letter to the Agent of
Iran;
9. Whereas, by a letter dated 21 October 1997, the Registrar, on the
instructions of the Court, invited the Iranian Government to specify in
writing, by 18 November 1997 at the latest, the legal grounds on which it
relied in maintaining that the Respondent's counter-claim did not meet the
requirements of Article 80, paragraph 1, of the Rules of Court; and whereas,
in that letter, the Registrar stated that the Government of the United
States would in turn be invited to present its views on the question during
the month following the filing of Iran's observations; and whereas the
Registrar sent a copy of that letter to the United States the same day;
10. Whereas, by a letter dated 27 October 1997, the Agent of Iran stated as
follows:
"Iran does not share the views of the United States as expressed in its
letter of 20 October 1997 that Iran's submissions are to be limited to the
issues set forth in Article 80, paragraph 3, of the Rules. As provided for
in Article 80, paragraph 1, of the Rules, a counterclaim may only be
presented provided that it is directly connected with the subject-matter of
the claim of the party and that it comes under the jurisdiction of the
Court. Pursuant to the Registrar's letter of 21 October 1997, Iran's
submissions will be directed to showing the legal grounds why the
counter-claim presented by the United States does not meet these
requirements, as indicated in Iran's letter of 2 October 1997.
As the Court is aware, Iran has requested a hearing pursuant to Article 80,
paragraph 3, of the Rules. Iran understands that the Court will address this
request after receiving the written submissions of the Parties7';
and whereas the Registrar sent a copy of that letter to the Agent of the
United States;
11. Whereas, by a communication from its Agent dated 18 November 1997 and
filed in the Registry on that day, Iran forwarded to the Court a document
entitled "Request for Hearing in Relation to the United States Counter-Claim
Pursuant to Article 80 (3) of the Rules of Court", which contained its
observations on the admissibility of the counter-claim; and whereas, by a
letter dated 18 November 1997, the Registrar sent a copy [p 196] of that
document to the United States Government, and informed the Iranian
Government that he had done so that same day;
12. Whereas, in the introduction to its written observations, Iran states
that in its Judgment of 12 December 1996, the Court ruled, on the one hand,
that only Article X, paragraph 1, of the Treaty of Amity was applicable to
the Iranian claim, thereby limiting Iran "to contesting the legality of the
attack on the platforms under Article X (1)... and under no other
provision", and, on the other hand, that "the aspect of Article X (1) of the
Treaty which relates to the present affair is that relating to freedom of
commerce between the territories of the Parties", the case being thus
limited to that question; whereas it submits that, "[d]espite the specific
and precise nature of the issues which remained for decision as a result of
the Court's Judgment of 12 December 1996, the Respondent has now chosen to
react by lodging a counter-claim of a sweeping and general character", in a
way which is inconsistent "with its previously declared position on claims
under the Treaty"; whereas Iran makes the following criticisms of this
"change of position":
"First, the United States seeks to widen the dispute to provisions of the
Treaty of Amity, Articles X (2)-(5), which were never in question in the
proceedings to date, and have never been mentioned before by the United
States. Second, the United States also seeks to widen the dispute to include
US claims concerning Iran's overall conduct throughout the period 1987-1988,
when it has always been its position in the preliminary objection phrase
that such overall conduct, at least in so far as it concerned the United
States, was irrelevant in this case, and specifically brought its
preliminary objection to limit Iran's claim as far as possible. Third, and
most importantly, the United States has effectively refused to seek to
resolve these wider disputes by diplomatic negotiations, despite Iran's
agreement to such negotiations";
and whereas Iran adds that the seven specific attacks described in the
counter-claim, which are alleged to have been carried out against "US
vessels", fa11 "wholly outside the scope of the Treaty of Amity, and in
particular the provisions of Article X (1) dealing with freedom of commerce
between the territories of the High Contracting Parties", and hence it is
claimed that, "following the Court's Judgment of 12 December 1996, there is
... no basis in the Treaty on which the Court can evaluate the legality of
these alleged attacks in this case";
13. Whereas Iran states that it is "convinced that the United States
counter-claim, as formulated, is inadmissible under Article 80, paragraph 1,
of the Rules"; whereas it "therefore asks the Court to hear the Parties
pursuant to Article 80, paragraph 3, of the Rules, in order to [p 197]
decide whether or not the question presented in the United States
counter-claim 'shall be joined to the original proceedings'"; and whereas
Iran states that "in summarizing its objections in its written statement,
[it] reserves the right to further particularize and develop them in the
hearing for which Article 80, paragraph 3, specifically provides";
14. Whereas, in the body of its written observations, Iran maintains that
neither of the two conditions required by Article 80 of the Rules of Court
for a counter-claim to be presented — namely, on the one hand, that the
counter-claim and the original claim must be "directly connected" and, on
the other hand, that the counter-claim must "come within the jurisdiction of
the Court" — are met in the present case;
15. Whereas Iran first of al1 claims that the United States counterclaim is
not sufficiently specific for the Court to be able to determine whether it
is directly connected with the principal claim; whereas it points out that
"the counter-claim is not limited to the seven incidents referred to in
paragraph 6.08" and argues that "it does nothing more than allege
unspecified Iranian interference with unspecified maritime trade between the
United States and Iran"; and whereas Iran argues that "no counter-claim may
be filed after submission of the Counter- Memorial", it challenges the right
which the United States reserves "to add further instances of Iranian
attacks on US vessels in the [Persian] Gulf in 1987-1988", whilst noting
that "in any event, in the case of
each such instance which the United States may subsequently seek to
introduce, it would be necessary to apply the test of admissibility under
Article 80 of the Rules";
16. Whereas Iran then states that there is no direct connection between the
counter-claim and the principal claim, either general, or with regard to the
specific cases of attacks which, according to the counter-claim, were
allegedly carried out on "United States shipping";
17. Whereas, as regards the first point, Iran explains its position as
follows:
"To the extent that the United States Counter-Claim consists of a general
assertion of the violation of freedom of commerce and navigation between the
United States and Iran, either under Article X (1) or under Article X
(3)-(5), there is not even the appearance of any legal or factual connection
between such a violation and the attacks on the platforms. The United States
did not attack the platforms because of any alleged Iranian attacks on
vessels engaged in trade between Iran and the United States, whether or not
such vessels were US vessels within the meaning of Article X (2)"; [p 198]
18. Whereas Iran, having furthermore analysed each of the specific attacks
on vessels alleged by the Respondent in detail, from the standpoint of the
admissibility of the counter-claim, states that that analysis "is based on
the presentation of these incidents made by the United States" and "is
entirely without prejudice to Iran's position at any subsequent phase of the
present proceedings"; and whereas at the end of that analysis Iran concludes
first of all that "no fewer than six incidents involved vessels which were
not. .. engaged in commerce or even navigation between the territories of
the High Contracting Parties" and that those incidents are accordingly
"irrelevant to a counter-claim which is founded on an assertion of a
violation of freedom of commerce and navigation between the two countries";
whereas Iran concludes secondly that, although the seventh vessel (the
Texaco Caribbean) was, it could be argued, "covered by Article X (1) of the
Treaty which is the provision by reference to which the legality of the
attack on the platforms is to be appreciated", that vessel was not a United
States flagged vessel and "in any event, there is no factual or legal link
whatever between the alleged attack on the Texaco Caribbean and the attacks
on the platforms"; and whereas, thirdly, Iran concludes, on the one hand,
that
"even assuming that there may be a sufficient legal link (connexité
juridique) between claims of a breach of freedom of commerce under Article X
(1) of the Treaty (which pursuant to the Court's Judgment of 12 December
1996 now forms the sole basis of Iran's Application) and claims of breaches
of freedom of navigation under Articles X (3)-(9, only two of the incidents
involved US vessels within the meaning of Article X (2) which were even
arguably covered by those paragraphs (Bridgeton and Sea Isle City)"
and, on the other hand, that "[i]n any event, none of these incidents, even
on the facts alleged by the United States, raises, even arguably, a case of
violation of Article X (3)-(5)";
19. Whereas, whilst restating its position that the United States
counter-claim does not come within the jurisdiction of the Court and is
therefore inadmissible, on this ground also, Iran observes moreover that "it
is ... not entirely clear from the language of Article 80, paragraph 3, of
the Rules whether the hearing for which that paragraph provides extends to
cover an objection . . . based on lack of jurisdiction"; whereas Iran
recognizes that, although "a State is normally entitled to question the
Court's jurisdiction over a claim prior to being called on to respond to the
merits of that claim", "proceedings under Article 80 are [not] a substitute
for a preliminary objection", since the hearing for which Article 80,
paragraph 3, provides "is evidently intended to be a brief one, [p 199] to
which the protective provisions of Article 79 of the Rules do not as such
apply"; whereas Iran considers that "the decision the Court is called upon
to make under Article 80, paragraph 3, concerns exclusively the question of
whether or not the counter-claim should be joined to the original
proceedings" and does not prejudice in any way the right of the party
objecting to the counter-claim "to make any defence relating either to the
admissibility or to the merits of the counter-claim in a subsequent phase of
the proceedings"; whereas, therefore, Iran "reserves the right, if
necessary, to lodge preliminary objections in respect of the United States
counter-claim"; and whereas it notes however that "the fact that a
counter-claim is plainly outside the Court's jurisdiction is relevant for
the purposes of Article 80, paragraph 3" in so far as, on the one hand "a
counter-claim which fails to satisfy the express requirement imposed by
Article 80, paragraph 1, should not be joined to the original proceedings,
whether the failure relates to lack of connection or lack of jurisdiction",
and, on the other hand, "there may well be a link between an evident lack of
jurisdiction and the lack of direct connection" as, Iran alleges, is the
case here;
20. Whereas, in the concluding remarks to its written observations, Iran
alleges that, in general, the State responding to the counter-claim is "at a
significant disadvantage" since it "is apparently confined to a single
written pleading, whereas the counter-claimant will have both the first and
the last written word on the matter"; whereas Iran maintains that in this
instance "the generalized claim of the United States with respect to the
period of 1987-1988 covers a series of incidents with respect to which Iran
has important additional claims of its own", and whereas, "[i]f the United
States counter-claim was admitted, Iran would necessarily be forced to seek
leave to introduce such claims", otherwise it would be "severely
prejudiced"; and whereas Iran also argues that "[i]f the case were to be
widened in the way proposed by the United States, this might also prejudice
third States' interests", since "Article 40, paragraph 3, of the Statute of
the Court only provides that a new case is notified to third States" and
that "[no] such provision is made with respect to counter-claims":
21. Whereas, by a communication from its Agent dated 18 December 1997 and
received in the Registry on that day, the United States submitted to the
Court its observations on the admissibility of the counter-claim set out in
its Counter-Memorial, taking the observations submitted by Iran into
consideration; and whereas, by a letter dated 18 December 1997, the
Registrar communicated a copy of the observations of the United States
Government to the Iranian Government, informing the latter, on the one hand,
that the Court would decide on future proceedings on the basis of the
documents now before it and, on the other hand, that [p 200] the Agents of
the Parties would be informed of the decision in due course; and whereas,
the same day, the Registrar transmitted that information to the Government
of the United States;
22. Whereas, in the introduction to its written observations, the United
States submits that Iran's request for a hearing on the matter was made
pursuant to Article 80, paragraph 3, of the Rules of Court and that:
"Under the Rules of Court, the only legally relevant issue now is whether
there is 'doubt' as to whether the US counter-claim is 'directly connected
to the subject-matter' of Iran's claim. Here, there can be no such doubt.
There is therefore no basis for Iran's demand for a hearing or for its
insistence that the counter-claim not be joined to the original
proceedings";
whereas the United States maintains that Iran "asks the Court ... to address
issues going far beyond the limits of Article 80 (3), including sweeping
objections to jurisdiction and admissibility of the counterclaim" ; whereas,
in the first part of its observations, the United States submits that Iran
"essentially seeks a separate procedure similar to preliminary objections
under Article 79" and draws, between the proceedings provided for,
respectively, in Article 79 and in Article 80 of the Rules of Court,
analogies which are "false" in so far as "the Party facing the counter-claim
initiated the case and chose the forum"; and whereas it draws the attention
of the Court to the following:
"Moreover, the Court could face great practical difficulties in seeking to
resolve Iran's objections to admissibility at this stage in the context of
Article 80 (3). Many of Iran's objections to jurisdiction and admissibility
involve contested matters of fact which the Court cannot effectively address
and decide at this stage, particularly not in the context of the abbreviated
procedures of Article 80 (3) FN3.
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FN3 Should the Court decide to consider these issues in the present context,
the United States would have to request a further opportunity to address
them in greater detail in writing before the Court rendered any decision";
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23. Whereas the United States considers that "Iran . . . regularly
mis-characterizes the key legal requirements of Article 80"; whereas the
United States points out that under that provision the counter-claim must be
directly connected "to the subject-matter of the claim, not to the claim
itself'; whereas from this it infers that "[a] proper counter-claim need not
be a mirror image of the claim or rest upon precisely the same [p 201]
theory or facts" but that it "must be sufficiently linked to the facts or
circumstances giving rise to the claim — the 'subject-matter' — to enable
the Court to address both efficiently in the context of a single
proceeding"; whereas it argues that for the Court to rule, within a single
proceeding, on claims where there are substantial common elements "helps to
reduce the burden on the Court... guards against inconsistent results, and
helps the Court to reach a just and rational result"; and whereas, having
analysed the case-law of the Court and of its predecessor, it reaches the
conclusion that the decisions of those two Courts reflect "this practical
understanding of the necessary connection between claim and counter-claim";
24. Whereas, in the second part of its written observations, the United
States seeks to show that its counter-claim is "directly connected to the
subject-matter" of Iran's claim; whereas it accuses Iran of putting forward
an "artificial and illogical definition of the subject-matter of the [main]
claim" by asking the Court "to consider only the US defensive actions
against [Iran's] platforms" and "to exclude Iran's prior conduct leading to
those actions"; and whereas it maintains that the factual connection between
the subject-matter of Iran's case and the United States counter-claim is
direct and compelling since
"the facts and circumstances that caused the United States to engage Iran's
oil platforms — Iranian attacks on, and threats to, merchant shipping,
including US shipping and US nationals — are at the heart of the US defence
to Iran's claims"
and "[t]hese same facts and circumstances are likewise the basis of the US
counter-claim";
25. Whereas the United States goes into greater detail of Iran's alleged
actions which, according to the United States, justified "under . .. the law
of self-defence and the 1955 Treaty's provision", the "defensive actions"
which it took, in October 1987, against the Rostam Platform, then, in April
1988, against the Sirri and Sassan Platforms; and whereas it explains that
in committing those acts Iran violated the 1955 Treaty, not only because the
"seven specific Iranian attacks" which it describes damaged its vessels, but
also because the consequences of Iran's conduct for the overall exercise of
navigational rights protected by the 1955 Treaty were the following:
"Iran's pattern of armed attacks against neutral shipping created
threatening conditions which interfered with the ability of all US-flag and
US-owned ships and US nationals to exercise their rights under the Treaty.
Substantial damages resulted, including increases in the costs of operating
both US-flag and US-owned commercial vessels and the warships protecting
them. Insurance and labour [p 202]costs increased; steaming times increased;
vessels were forced to carry smaller cargoes in order to pass through the
relative safety of shallower waters";
26. Whereas the United States, whilst it maintains that the Iranian
objections to the jurisdiction of the Court to entertain its counter-claim
"are not appropriate for consideration at this stage [of the case]", intends
nonetheless "[to] comment briefly on some of Iran's argument concerning the
1955 Treaty"; whereas it alleges that "Iran's jurisdictional arguments seek
to force al1 of the US counter-claim into the confines of Article X (1) of
the 1955 Treaty", of which it provides a debatable interpretation, and
whereas "[i]ssues involving the relationship between that Article and the US
counter-claim await the Court's eventual decision regarding the
interpretation and application of that Article"; whereas it argues that
"Iran's specific objections to the application of paragraphs X (2) through X
(5) of the Treaty are without merit", in so far as, inter alia, "these
provisions are not limited to ships involved in trade between the United
States and Iran"; and whereas it adds that "the exclusion of warships in
Article X (6) is not applicable to Article X (5)", since attacks on United
States warships protecting United States commercial vessels must "be viewed
as endangering and denying access to those commercial vessels as well";
27. Whereas the United States rejects the Iranian contention that the United
States counter-claim "is not admissible because it is not framed clearly or
with sufficient precision"; whereas it asserts that the counterclaim "has
been stated with sufficient precision to be understood by Iran"; and whereas
it observes that, although it has reserved the right to prove other Iranian
ship attacks, "Iran itself has frequently sought to reserve the right to
prove additional matters supporting its claims";
28. Whereas the United States also denies that there is any basis to the
Iranian argument that it too could have made a counter-claim, pointing out
that "Iran initiated [these proceedings], asserting claims that it alone
selected"; and whereas it denies that its counter-claim affects the rights
of third parties since "[t]he other States potentially interested in the . .
.counter-claim have indicated their consent or lack of objection to the
counter-claim";
29. Whereas, in the third part of its written observations, the United
States reiterates its conviction that, contrary to what is maintained by [p
203] Iran, no hearing is required in the present circumstances; it points
out that the expression "after hearing the Parties", which appears in
paragraph 3 of Article 80 of the Rules "come[s] into operation only if the
Court determines that there is 'doubt' as to the requisite 'connection
between the question presented by way of counter-claim and the
subject-matter' ", which is not the case here; and whereas it adds that
"[t]he principles of justice and of sound judicial administration require no
different result" since "[t]he question of connection . . . here is simple
and straightforward" and that "[t]he relevant considerations are fully
explained in the papers submitted by the Parties";
30. Whereas, in its concluding observations, the United States submits that
"the Court should now decide to join the questions presented by the US
counter-claim to the original proceeding" since "[b]oth claim and
counter-claim arise out of the same circumstances and require the Court to
examine and decide many of the same factual and legal issues";
31. Whereas, having regard to Article 80, paragraph 3, of its Rules, and
having received detailed written observations from each of the Parties, the
Court is sufficiently well informed of the positions they hold with regard
to the admissibility of the claims presented as counter-claims by the United
States; and whereas, accordingly, it does not appear necessary to hear the
Parties further on the subject;
***
32. Whereas in this case Iran does not dispute that the United States claim
is presented not as a defence on the merits, but as a "counterclaim" within
the meaning of Article 80 of the Rules of Court; whereas it is not disputed
that the claim has been "made in the Counter-Memorial of the party
presenting it, and [appears] as part of the submissions of that party", in
accordance with Article 80, paragraph 2; whereas, however, Iran denies that
the counter-claim meets the requirements of "jurisdiction" and of "direct
connection" set out in Article 80, paragraph 1, and whereas it falls to the
Court to determine whether these requirements are met in this particular
case;
33. Whereas the Court has already had occasion to state the reasons why the
admissibility of a counter-claim as such is contingent on those conditions
in the following terms:
"Whereas the Respondent cannot use a counter-claim as a means of referring
to an international court claims which exceed the limits of its jurisdiction
as recognized by the parties; and whereas the Respondent cannot use that
means either to impose on the Applicant any claim it chooses, at the risk of
infringing the Applicant's rights and of compromising the proper
administration of justice; and whereas it is for that reason that paragraph
1 of Article 80 of the Rules of Court requires [p 204] that the
counter-claim 'comes within the jurisdiction of the Court' and 'that it is
directly connected with the subject-matter of the claim of the other party'"
(Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, Order of 17 December 1997, I.C.J. Reports 1997, pp. 257-258,
para. 31);
**
34. Whereas the Court has found, in its Judgment of 12 December 1996, that
its jurisdiction in the present case covers claims made under Article X,
paragraph 1, of the 1955 Treaty, which is worded as follows: "Between the
territories of the two High Contracting Parties there shall be freedom of
commerce and navigation";
35. Whereas, in its Judgment of 12 December 1996, the Court indicated, inter
alia,
"it would be a natural interpretation of the word 'commerce', in Article X,
paragraph 1, of the Treaty of 1955 that it includes commercial activities in
general — not merely the immediate act of purchase and sale, but also the
ancillary activities integrally related to commerce" (Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996, p. 819, para. 49).
and whereas it added that:
"Article X, paragraph 1, of the Treaty of 1955 does not strictly speaking
protect 'commerce' but 'freedom of commerce'. Any act which would impede
that 'freedom', is thereby prohibited. Unless such freedom is to be rendered
illusory, the possibility must be entertained that it could actually be
impeded as a result of acts entailing the destruction of goods destined to
be exported, or capable of affecting their transport and their storage with
a view to export" (ibid., para. 50);
36. Whereas the counter-claim presented by the United States alleges attacks
on shipping, the laying of mines, and other military actions said to be
"dangerous and detrimental to maritime commerce”; whereas such facts are
capable of falling within the scope of Article X, paragraph 1, of the 1955
Treaty as interpreted by the Court; and whereas the Court has jurisdiction
to entertain the United States counter-claim in so far as the facts alleged
may have prejudiced the freedoms guaranteed by Article X, paragraph 1;
**
37. Whereas the Rules of Court do not define what is meant by "directly
connected"; whereas it is for the Court, in its sole discretion, to [p 205]
assess whether the counter-claim is sufficiently connected to the principal
claim, taking account of the particular aspects of each case; and whereas,
as a general rule, the degree of connection between the claims must be
assessed both in fact and in law;
38. Whereas, in the present case, it emerges from the Parties' submissions
that their claims rest on facts of the same nature; whereas they form part
of the same factual complex since the facts relied on — whether involving
the destruction of oil platforms or of ships — are alleged to have occurred
in the Gulf during the same period; whereas the United States indicates,
moreover, that it intends to rely on the same facts and circumstances in
order both to refute the allegations of Iran and to obtain judgment against
that State; and whereas, with their respective claims, the two Parties
pursue the same legal aim, namely the establishment of legal responsibility
for violations of the 1955 Treaty;
39. Whereas the Court considers that the counter-claim presented by the
United States is directly connected with the subject-matter of the claims of
Iran;
**
40. Whereas in the light of the foregoing, the Court considers that the
counter-claim presented by the United States satisfies the conditions set
forth in Article 80, paragraph 1, of the Rules of Court;
41. Whereas a decision given on the admissibility of a counter-claim taking
account of the requirements set out in Article 80 of the Rules in no way
prejudges any question which the Court will be called upon to hear during
the remainder of the proceedings;
***
42. Whereas in order to protect the rights which third States entitled to
appear before the Court derive from the Statute, the Court instructs the
Registrar to transmit a copy of this Order to them;
43. Whereas when, in accordance with the provisions of its Rules, the Court
decides, in the interests of the proper administration of justice, to rule
on the respective claims of the parties in a single set of proceedings, it
must not, for al1 that, lose sight of the interest of the Applicant to have
its claims decided within a reasonable period of time;
44. Whereas, during the meeting which the Vice-President of the Court held
on 17 October 1997 with the Agents of the Parties (see paragraph 7 above),
the Agents envisaged a new exchange of written pleadings on the merits; and
whereas the Agent of Iran, when asked about the time his Government would
need in order to present a Reply, if such proved necessary, indicated that,
without prejudice to the question of whether that pleading should also cover
the counter-claim, a time-limit of one year [p 206] as from the date of
filing of the Counter-Memorial would seem necessary to reply to it; and
whereas at the end of its written observations (see paragraphs 21 et seq.
above), the United States expressed itself as follows in that connection:
"As to the schedule of future proceeding on the merits of this case, the
United States would not object should Iran ask under Article 45 (2) of the
Rules of Court for permission to submit a Reply to the US Counter-Memorial
to accompany its defence to the US counterclaim, if the United States is
also authorized to file a Rejoinder. The United States notes, however, that
Iran received the US Counter-Memorial and Counter-Claim late in June 1997,
nearly six months ago. Iran thus already has had as long to study the US
document as the United States had to write it. Therefore Iran should be
required to submit any Reply within six months. The United States should
then be given as much time to prepare its Rejoinder as Iran will have had
from June 1997 to the filing of its Reply";
45. Whereas, taking into account the conclusions it has reached above, the
Court considers that it is necessary for Iran to file a Reply and for the
United States to file a Rejoinder relating to the claims of both Parties;
and whereas it is necessary moreover, in order to ensure strict equality
between the Parties, to reserve the right of Iran to present its views in
writing a second time on the United States counter-claim, in an additional
pleading the filing of which may be the subject of a subsequent Order;
***
46. For these reasons,
THE COURT,
(A) By fifteen votes to one,
Finds that the counter-claim presented by the United States in its
Counter-Memorial is admissible as such and forms part of the current
proceedings;
IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel;
Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST : Judge ad hoc Rigaux; [p 207]
(B) Unanimously,
Directs Iran to submit a Reply and the United States to submit a Rejoinder
relating to the claims of both Parties and fixes the following dates as
time-limits for the filing of these pleadings:
For the Reply of Iran, 10 September 1998;
For the Rejoinder of the United States, 23 November 1999; and
Reserves the subsequent procedure for further decision.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this tenth day of March, one thousand nine hundred
and ninety-eight, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Islamic Republic of Iran and the Government of the United States of America,
respectively.
(Signed) Christopher G. Weeramantry,
Vice-President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judges Oda and Higgins append separate opinions to the Order of the Court.
Judge ad hoc Rigaux appends a dissenting opinion to the Order of the Court.
(Initialled) C.G.W.
(Initialled) E.V.O. [p 208]
SEPARATE OPINION OF JUDGE ODA
I
1. I voted in favour — albeit reluctantly — of the Order which was very
nearly unanimously adopted.
However, I find it incorrect that the Court has decided, at this stage and
in the form of a Court Order, that "the counter-claim presented by the
United States in its Counter-Memorial is admissible as such and forms part
of the current proceedings" (Order, p. 206, para. 46 (A)).
I feel that the Court's decision in this Order sets a rather unfortunate
precedent in its jurisprudence relating to counter-claims.
II
2. In the current case concerning Oil Platforms, which was presented
unilaterally by Iran against the United States on 2 November 1992, Iran
submitted its Memorial on 8 June 1993. While the United States, on 16
December 1993, presented its preliminary objection to the jurisdiction of
the Court (within the time-limit fixed by the Court for the submission of
the Counter-Memorial), the Court in its Judgment of 12 December 1996
rejected that objection and found that "it has jurisdiction, on the basis of
Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims
made by [Iran] under Article X, paragraph 1, of that Treaty" (Oil Platforms
(Islamic Republic of Iran v. United States of America), Preliminary
Objection, I.C.J. Reports 1996, p. 821, para. 55 (2)).
Within the time-limit fixed by the President of the Court for the submission
of the Counter-Memorial, the United States, on 23 June 1997, filed its
Counter-Memorial entitled "Counter-Memorial and Counter-Claim". In its
submission, the United States requests, on the one hand, that the Court
adjudge and declare "[t]hat the United States did not breach its obligations
to [Iran] under Article X (1) of the Treaty" and that "the claims of [Iran]
are accordingly dismissed". On the other hand, Part VI of the United States
Counter-Memorial sets forth its counterclaim and in its submissions the
United States requests, with respect to its counter-claim, that the Court
adjudge and declare:
"1. That in attacking vessels, laying mines in the Gulf and otherwise
engaging in military actions in 1987-1988 that were dangerous and [p 209]
detrimental to maritime commerce, [Iran] breached its obligations to the
United States under Article X of the 1955 Treaty, and
2. That [Iran] is accordingly under an obligation to make full reparation to
the United States for violating the 1955 Treaty in a form and amount to be
determined by the Court ..."
3. Several months passed and the Court has not taken any action so far. The
Court did not order a second round of written pleadings (in other words, the
submission of a Reply by Iran and a Rejoinder by the United States) since
the counter-claim was presented in the Counter-Memorial of the Respondent
party on 23 June 1997.
In fact, in a letter dated 2 October 1997 addressed to the Registrar of the
Court, which was, in part, a response to the contention contained in the
letter dated 23 June 1997 from the Agent of the United States filed at the
same time as its Counter-Memorial, the Agent of Iran stated:
"I should . . . observe that Iran has serious objections to the
admissibility of the United States' counter-claim. It is Iran's position
that the counter-claim as formulated by the United States does not meet the
requirements of Article 80 (1) of the Rules. Iran requests a hearing on this
question, as provided for in Article 80 (3) of the Rules."
On 17 October 1997, after the exchange of the above-mentioned letters of the
Agents of both Parties through the Registrar of the Court, the Acting
President in the present case held a meeting with the Agents of the Parties
in order to ascertain their views as to the further proceedings in the case.
According to the United States letter of 20 October 1997 "it was discussed
[at that meeting] that the two Parties may be ordered by the Court to file
submissions regarding the United States Counter-Claim" (emphasis added). It
is also known from the text of the present Order, however, that at that
meeting "the two Agents agreed that their respective Governments would
submit written observations on the question of the admissibility of the
United States counter-claim" (emphasis added) and that "the Agent of Iran
envisaged that his Government would then present oral observations on the
question".
In that letter dated 20 October 1997 addressed to the Registrar, the Agent
of the United States stated that
"the United States understands that any order by the Court will limit the
filing of these submissions to the issue set forth in Rule 80 (3) of the
Rules of the Court, in other words, to the connection of the counter-claim
to Iran's claim".
In his letter of 27 October 1997 to the Registrar, prepared in response to
the Registrar's request of 21 October 1997, the Agent of Iran made it [p
210] clear that he did not share the views of the United States that Iran's
submissions should have been limited to the issue set forth in Article 80,
paragraph 3, of the Rules. Iran was of the view that "a counter-claim may
only be presented provided that it is directly connected with the
subject-matter of the claim of the [other] party and that it comes under the
jurisdiction of the Court".
4. By invitation of the Registrar in the above-mentioned letter dated 21
October 1997, Iran, on 18 November 1997, forwarded a document entitled
"Request for Hearing in Relation to the United States Counter-Claim Pursuant
to Article 80 (3) of the Rules of Court" in which Iran stated:
"[Iran] hereby requests a hearing pursuant to Article 80, paragraph 3, of
the Rules of Court in order to allow the Court to determine whether or not
the United States Counter-Claim should be joined to this Case".
On 18 December 1997, the United States, in response to the Registrar's
invitation in the above-mentioned letter to set forth its views within a
month of receiving Iran's statement, submitted "Views on Iran's 'Request for
Hearing in Relation to the United States Counter-Claim Pursuant to Article
80 (3) of the Rules of Court'", in which the United States stressed that
"[t]he thrust of Iran's position is not whether the US counter-claim is
connected to the subject matter of Iran's claim, but whether there is a
valid US counter-claim at all. The Court cannot make such a determination at
this stage of the proceedings. It certainly should not allow Iran to avoid
responding to the merits of the US counter-claim"
and that "the Court should now decide to join the questions presented by the
US counter-claim to the original proceeding" (ibid.). The United States was
of the view that "no oral proceeding is required in connection with such a
decision" (ibid.) and "[t]here is ... no need for an oral proceeding under
Article 80 (3)" (ibid.).
Since 18 December 1997, there was no further development at the Court until
10 March 1998, the date on which Iran was informed by this Order, without
being given the requested opportunity to be heard, "that the counter-claim
presented by the United States in its Counter-Memorial is admissible as such
and forms part of the current proceedings" (Order, p. 206, para. 46 (A)). [p
211]
III
5. This procedure strikes me as irregular, if 1 may Say so, in the light of
the jurisprudence of this Court, as well as of its predecessor, the
Permanent Court of International Justice.
A "counter-claim", as one of the incidental proceedings of the Court, has
featured not in the Statute itself but in the Rules of Court since the time
of the Permanent Court of International Justice. At its inception in 1946,
the International Court of Justice included a "counter-claim" in its 1946
Rules of Court, Article 63 of which read:
"When proceedings have been instituted by means of an application, a
counter-claim may be presented in the submissions of the Counter-Mernorial,
provided that such counter-claim is directly connected with the
subject-matter of the application and that it comes within the jurisdiction
of the Court. In the event of doubt as to the connection between the
question presented by way of counter-claim and the subject-matter of the
application the Court shall, after due examination, direct whether or not
the question thus presented shall be joined to the original proceedings."
This same text remained in the Rules, as amended in 1972, as Article 68.
That text was redrafted, without great modification to the substance, in the
new 1978 Rules, as Article 80:
"1. A counter-claim may be presented provided that it is directly connected
with the subject-matter of the claim of the other party and that it comes
within the jurisdiction of the Court.
2. A counter-claim shall be made in the Counter-Memorial of the party
presenting it, and shall appear as part of the submissions of that party.
3. In the event of doubt as to the connection between the question presented
by way of counter-claim and the subject-matter of the claim of the other
party the Court shall, after hearing the parties, decide whether or not the
question thus presented shall be joined to the original proceedings."
6. Throughout the entire history of the present Court, there have been only
two other cases (except for the quite recent case concerning Application of
the Convention on the Prevention and Punishment of the Crime of Genocide, in
which case an Order on a relevant matter has been issued during the past few
months) when counter-claims were presented during the proceedings.
In the Asylum case (presented unilaterally by Colombia against Peru on 15
October 1949), which was the first case at the International Court of
Justice to deal with the issue of counter-claims, the Respondent, Peru, in
replying to Colombia's Memorial of 10 January 1950, filed its
Counter-Memorial on 21 March 1950 in which it presented its counter-[p 212]
claim. In its submissions, Peru requested the Court to set aside the
submissions of the Applicant, in which Colombia asks the Court to adjudge
and declare:
"1. That the Republic of Colombia, as the country granting asylum, is
competent to qualify the offence for the purpose of the said asylum, within
the limits of the obligations resulting in particular from the Bolivarian
Agreement on Extradition of 18 July 1911, and the Convention on Asylum of 20
February 1928, and of American international law in general.
II. That the Republic of Peru as the territorial State, is bound, in the
case now before the Court, to give the guarantees necessary for the
departure of ... Haya de la Torre from the country, with due regard to the
inviolability of his person." (I.C.J. Pleadings, Asylum, Vol. 1, p. 43.)
[Translation by the Registry.]
With respect to its counter-claim, Peru requested the Court to adjudge and
declare
"[as a counter-claim under Article 63 of the Rules of Court, and in the same
decision,] that the asylum granted by the Colombian Ambassador at Lima to
... Haya de la Torre was contrary to Article 1, paragraph 1, and Article 2,
paragraph 2, item 1 (inciso primero), of the Convention on Asylum signed at
Havana in 1928" (ibid., p. 164 [translation by the Registry]).
In its Reply of 20 April 1950, Colombia expressed its views on the
counter-claim, although Colombia did not address explicitly the question
whether there existed a direct connection with the subject-matter of the
claim of the other Party, and stated
"To sum up, the Government of Peru has not succeeded in establishing its
counter-claim concerning the alleged violation of Articles 1, paragraph 1,
and 2, paragraph 2, item 1 (inciso primero) of the 1928 Havana Convention on
Asylum, by the Colombian Ambassador at Lima as resulting from the 'grant' of
asylum to ... Haya de la Torre." (Ibid., p. 386.) [Translation by the
Registry].
In its Rejoinder of 15 June 1950 (ibid., p. 425), as in its
Counter-Memorial, Peru submitted its request to the Court to reject the
Colombian submission and to adjudge in relation to its counter-claim in the
same manner as in its Counter-Memorial (ibid., p. 442).
The issues relating to the counter-claim of Pen were extensively discussed
in parallel with the original submission of Colombia in the two rounds of
oral proceedings held from 26 September 1950 to 9 October 1950. At those
oral proceedings Peru submitted its final submissions, presented by Georges
Scelle, which were essentially the same as the previous [p 213] submissions
in its Counter-Memorial and Rejoinder, but with one addition in the last
line, which reads that "in any case the maintenance of the asylum
constitutes at the present time a violation of that treaty" (I. C. J.
Pleadings, Asylum, Vol. II, p. 192 [translation by the Registry]).
In the Judgment of 20 November 1950, the Court, regarding Peru's
counter-claim, (i) "[r]ejects it in so far as it is founded on a violation
of Article 1, paragraph 1, of the [1928 Havana] Convention on Asylum" and
(ii) "[flinds that the grant of asylum by the Colombian Government to ...
Haya de la Torre was not made in conformity with Article 2, paragraph 2
('First'), of that Convention" (I.C.J. Reports 1950, p. 288).
7. In the case concerning Rights of Nationals of the United States of
America in Morocco presented unilaterally by France against the United
States on 27 October 1950, France submitted its Memorial on 1 March 1951 in
which it made submissions relating, inter alia, to the privileges that were
to be enjoyed by United States nationals in Morocco, which privileges arose
from the 1836 Treaty, to the existence of the consular jurisdiction over
United States nationals and to the extent of that consular jurisdiction, and
to the effect of the 1948 Decree relating to consumption taxes upon United
States nationals.
The United States raised a preliminary objection on 15 June 1951, in which
that country already indicated that it "would wish to consider the inclusion
of a' counter-claim or counter-claims in its Counter-Memorial, pursuant to
Article 63 of the Rules of Court" and continued:
"Should it be determined, pursuant to that article, that under such
circumstances a counter-claim of this character could not be joined to the
original proceedings, the Government of the United States would have to
consider what other steps it must take to safeguard its rights and
interests." (I.C.J. Pleadings, Rights of Nationals of the United States of
America in Morocco, Vol. 1, p. 238.)
The preliminary objection was eventually withdrawn by the United States.
However, in its Counter-Memorial of 20 December 1951, the United States
presented, in addition to its objection to the original submission of
France, its counter-claim. In support of that counter-claim, the United
States Government requested the Court to
"judge and declare that:
1. Under Article 95 of the Act of Algeciras, the value of imports from the
United States must be determined for the purpose of customs assessments by
adding to the purchase value of the imported merchandise in the United
States the expenses incidental to its transportation to the custom-house in
Morocco . . .
2. The treaties exempt American nationals from taxes . . . [T]o [p 214]
collect taxes from American nationals in violation of the terms of the
treaties is a breach of international law.
Such taxes can legally be collected from American nationals only with the
previous consent of the United States . . . and from the date upon which
such consent is given . . .
3. Since Moroccan laws do not become applicable to American citizens until
they have received the prior assent of the United States Government, the
lack of assent of the United States Government to the Dahir of February 28,
1948, rendered illegal the collection of the consumption taxes provided by
that Dahir." (1. C.J. Pleadings, Rights of Nationals of the United States of
America in Morocco, Vol. 1, p. 407.)
In its Reply of 13 February 1952, France stated in its submission in
connection with the counter-claim contained in the United States
Counter-Memorial, its request that the Court adjudge:
"That Article 95 of the Act of Algeciras defines valuation for customs
purposes as the value of the merchandise at the time and at the place where
it is presented for customs clearance;
That no treaty has conferred on the United States fiscal immunity for its
nationals in Morocco, either directly or through the effect of the
most-favoured-nation clause;
That the laws and regulations on fiscal matters which have been put into
force in the Shereefian Empire are applicable to the nationals of the United
States without the prior consent of the Government of the United States;
That, consequently, consumption taxes provided by the Dahir of 28 February
1948 have been legally collected from the nationals of the United States,
and should not be refunded to them." (Zbid., Vol. II, p. 72.) [Translation
by the Registry.]
In its Rejoinder of 18 April 1952, the United States maintained, in their
entirety, the submissions presented in its Counter-Memorial (ibid., p. 131).
The oral proceedings were held from 15 to 26 July 1952. The United States
repeated its original submission in respect of its counterclaim (ibid., p.
291).
With respect to the United States counter-claim, the Court's Judgment of 27
August 1952 partly rejected the submission of the United States relating to
exemption from taxes and to the consumption taxes imposed by the Shereefian
Dahir in 1948, but found that
"in applying Article 95 of the General Act of Algeciras, the value of
merchandise in the country of origin and its value in the local Moroccan
market are both elements in the appraisal of its cash wholesale value
delivered at the custom-house" (I. C.J. Reports 1952, p. 213). [p 215]
IV
8. The institution of counter-claims, in parallel with that of third-party
intervention which appears immediately after counter-claims in the section
on incidental proceedings in the Rules of Court, had been introduced at the
time of the Permanent Court of International Justice. Its purpose was the
proper administration of justice with a view to judicial economy to enable
it to rule on any or al1 connected claims in a single proceeding, in other
words, to avoid any inconvenience which might be caused by the other party
or by a third party filing a fresh application on issues that are directly
connected. Any new application would, of course, necessitate another
confirmation of the Court's jurisdiction and an examination of the complete
documentation, and it would be a situation best avoided.
However, an applicant State will be severely prejudiced if the scope of the
issues, in the respondent State's counter-claim, is broadened beyond the
original contention in the claim of the applicant State. While an applicant
State is not itself allowed to bring additional claims, why then may a
respondent State be permitted to bring a new claim if this (counter-)claim
is not directly connected with the subject-matter of the Applicant's claim?
We should not simply put what may have originally been somewhat distinct
matters into one melting-pot without making a careful examination of the
essential character of that claim.
9. In the present case, 1 wonder if it is quite proper to confirm the
admissibility of the United States counter-claim and make it part of the
whole proceedings without (i) affording the Parties, and in particular the
Applicant, the opportunity to express their views on this matter in the
written pleadings and (ii) without having oral hearings on the basis of the
complete exhaustion of the exchange of views indicated in the written
proceedings. In the light of past jurisprudence, except as already mentioned
for the case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide in which an Order was made just a few
months ago, 1 wonder if the quick rendering of an Order by the Court is
quite reasonable.
Past precedent (as mentioned above) seems to indicate, in general, that the
question presented by way of a counter-claim by the Respondent and the
subject-matter of the Applicant were so interlinked that their direct
connection could not be determined without careful study of the substance of
the issues contained in their respective counter-claims. In those two past
cases, Asylum and Rights of Nationals of the United States of America in
Morocco, some of the respective counter-claims submitted by the Respondents
were rejected by the Court but only after it was proved by a thorough
examination through the written and oral pleadings that [p 216]
the counter-claims were directly connected with the subject-matter of the
claim of the other party.
10. Icertainly agree that, at this stage, the Court should fix the
time-limit for the submission of a Reply and of a Rejoinder, as has been
done in paragraph 46 (B) of the present Order. The matter, including whether
or not there is a "connection between the question presented by way of
counter-claim and the subject-matter of the claim of the other party",
should have been open to analysis by Iran in the Reply which it is to
prepare and, further, by the United States in its Rejoinder.
There remains, as a matter of principle, the question of whether it is fair
for the Respondent to be given the opportunity to present the subject-matter
twice, once in its Counter-Memorial and once in its Rejoinder, while the
Applicant is confined to a single written pleading in its Reply, although
the Applicant will be afforded a further opportunity to argue this point
during the oral pleadings.
11. I find it difficult to understand why the admissibility of the
counter-claim should be determined at this stage before the Court has, at
least, received Iran's Reply. I also fail to understand why this needs to be
done so hastily in this case especially when one considers the careful
manner in which the Court has proceeded in earlier years. In addition, I
believe that this matter, namely whether the (counter-) claim is admissible
or not, should not be determined by the Court in the form of an Order but
should rather be decided by the Judgment in the merits phase.
(Signed) Shigeru Oda.
[p 217]
SEPARATE OPINION OF JUDGE HIGGINS
I agree with the Court's finding that the counter-claim presented by the
United States in its Counter-Memorial is admissible and now forms part of
the current proceedings.
There is, however, one point which the Court has not at all addressed, while
nevertheless apparently making a negative finding on it; and there are two
further points which it seems to hold over for the merits, when arguably
they should have been disposed of at this juncture.
As the present Order recalls, Iran instituted proceedings against the United
States claiming breaches by the latter of Article 1, Article IV, paragraph
1, and Article X, paragraph 1, of the Treaty of Amity of 1955. The Court,
having heard the preliminary objections to its jurisdiction of the United
States, in its Judgment of 12 December 1996 determined that it had
jurisdiction "to entertain the claims made by the Islamic Republic of Iran
under Article X, paragraph 1, of that Treaty". It found it did not have
jurisdiction to entertain the claims under Article 1 and Article IV,
paragraph 1.
On 23 June 1997 the United States presented both a defence to Iran's
Memorial and the counter-claim which is the subject of the present Order.
The United States contended that Iran, for its part, had engaged in actions
which violated Article X of the Treaty. In Section 1 of its counter-claim it
based its application on Article X, paragraph 1, of the Treaty. In Section 2
it based its application on "the remainder of Article X" and went on to
refer particularly to acts it alleged constituted violations of Article X,
paragraph 3. In its submissions the Court was asked to adjudge and declare
that Iran had breached its obligations under Article X, generally.
In its reply to the Court's invitation to present its views on Iran's
observations on the counter-claims (see paragraph 9 of this Order), the
United States further referred at paragraph 39 to "paragraphs X (2) through
X (5)". It both claimed violations of these provisions by reference to
particular events and it objected that "Iran's jurisdictional arguments seek
to force al1 of the US counter-claim into the confines of Article X (1) of
the 1955 Treaty".
The Court's Order makes no reference whatsoever to these exchanges of the
Parties save that it recalls in paragraph 26 that the United States did
indeed make claims under Article X, paragraphs 2 to 5. However, [p 218]
although the dispositif in paragraph A, as is customary, merely finds that
the counter-claim is admissible, it seems from the text of the Order that
this is only in relation to Article X, paragraph 1. In paragraph 34 the
Court states that "its jurisdiction in the present case covers claims under
Article X, paragraph 1, of the 1955 Treaty", the text of which it then
cites. In paragraph 36 it finds that the counter-claim falls
"within the scope of Article X, paragraph 1, of the 1955 Treaty as
interpreted by the Court; and whereas the Court has jurisdiction to
entertain the United States counter-claim in so far as the facts alleged may
have prejudiced the freedoms guaranteed by Article X, paragraph 1".
It may thus be that while Article X, paragraph 1, is the sole basis of
jurisdiction identified by the Court, paragraphs 2 to 6 still have relevance
to the task of ascertaining the freedoms guaranteed under paragraph 1.
In the first place, findings that reject the contentions of a party should
be based on reasons. The disturbing tendency to offer conclusions but not
reasons is not to be welcomed. In the second place, the inarticulate
assumption that the jurisdictional basis established for a claim necessarily
is the only jurisdictional basis for, and sets the limits to, a
counter-claim, is open to challenge.
In both civil and common law domestic systems, as in the Rules of the Court,
a defendant seeking to bring a counter-claim must show that the Court has
jurisdiction to pronounce upon them. But it is not essential that the basis
of jurisdiction in the claim and in the counter-claim be identical. It is
sufficient that there is jurisdiction. (Indeed, were it otherwise,
counter-claims in, for example, tort could never be brought, as they
routinely are, to actions initiated in contract.)
There is nothing in the Rules or practice of the Court to suggest that the
very identical jurisdictional nexus must be established by a
counter-claimant. The travaux préparatoires to the various formulations of
what is now Article 80 of the Rules of Court contain no suggestion whatever
that this was thought of as a requirement. The rule on counter-claims has
gone through successive changes. But neither in the discussions of 1922, nor
of 1934, 1935, 1936, nor again of 1946, 1968, 1970, 1972, does this thought
anywhere appear.
Attention was focused on the one hand on the required "connection" and on
the other on certain matters relating to jurisdiction, notably (in 1922)
whether counter-claims were limited to compulsory jurisdiction cases and
whether objections to counter-claim jurisdiction would be allowed. At no
stage was it even proposed, much less accepted, that the jurisdictional
basis for the claim and counter-claim must be identical. [p 219]
Nor does the wording of Article 80, paragraph 1, suggest this. It requires
that a counter-claim "comes within the jurisdiction of the Court", not that
it "was within the jurisdiction established by the Court in respect of the
claims of the applicant".
Of course, the very requirement of a direct connection with the
subject-matter of the claim is likely to bring a counter-claimant into the
same general jurisdictional area, i.e., the same treaty may well form the
basis of the claimed jurisdiction for the bringing of a counter-claim. But
that is all.
The view of the Committee for the Revision of the Rules, when deciding to
retain the phrase "and that it comes within the jurisdiction of the Court"
from the old Rule, was that the phrase meant that a counter-claimant could
not introduce a matter which the Court would not have had jurisdiction to
deal with had it been the subject of an ordinary application to the Court.
And that remains the position under Article 80 of the present Rules of
Court, which continues simply to require that a counter-claim "comes within
the jurisdiction of the Court". The correct and necessary procedure in the
present case would have been for the Court to enquire whether it would have
had jurisdiction to deal with the claims of the United States, as they
related to Article X, paragraphs 2 to 5, had they "been the subject of an
ordinary application to the Court".
In its Judgment of 12 December 1996 (case concerning Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objection, I.C.J.
Reports 1996, p. 803) the Court established the methodology for doing this
where there is contested jurisdiction under a treaty. The test is whether
the facts as claimed by the applicant might give to a violation of a
specified provision (whether the facts are in fact correct, whether they do
constitute a violation, and if there is a defence, are then all matters for
the merits). There is no reason why the Court should not have engaged in
this exercise in relation to the counter-claim of the United States based on
Article X, paragraphs 2 to 5, of the 1955 Treaty and thus to provide it with
a reasoned response, one way or the other.
Iran, too, seems not really to expect any eligible counter-claim to be
limited to matters falling under Article X, paragraph 1, of the Treaty of
Amity. Its document of 18 November 1997, entitled "Request for Hearing in
Relation to the United States Counter-Claim Pursuant to Article 80 (3) of
the Rules of Court" is replete with arguments directed towards showing that
the specific counter-claims of the United States are excluded by their facts
from falling under Article X, paragraphs 3 to 5 (paras. 17, 19 (b), 19 (d),
19 (e), 19 (f), 21 and footnotes 21 and 24.) [p 220]
Implicit in the Court's unexplained reliance on Article X, paragraph 1, as
the apparent sole basis of jurisdiction is the thought that a counter-claim
can only arise out of an initial claim, and therefore cannot be on a wider
jurisdiction basis than the initial claim. But it is not a question of a
counter-claimant being able to "expand" the jurisdiction initially
established by the Court. The Court first establishes its jurisdiction by
reference to the facts as alleged by the claimant. But that does not mean to
say that it might not have jurisdiction in relation to allegations brought
by the defendant under other clauses of the same treaty.
The Order which the Court issued on 17 December 1997 in respect of the
Genocide Convention case (also concerning treaty-based jurisdiction)
referred to the matter in the following terms:
"Whereas the Respondent cannot use a counter-claim as a means of referring
to an international court claims which exceed the limits of its jurisdiction
as recognized by the parties ..." (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Counter-Claims, Order of
17 December 1997, 1C.J. Reports 1997, p. 257, para. 31; emphasis added).
What matters in a counter-claim is the jurisdiction mutually recognized by
the parties under the Treaty — not the jurisdiction established by the Court
in respect of particular facts initially alleged by the claimant. (It so
happens in the Genocide Convention that the identical basis of jurisdiction
was in issue for both parties, in relation to erga omnes obligations.)
The test in the Genocide Convention case of "jurisdiction as recognized by
the parties" will only be met when the Court decides whether Article X,
paragraphs 2 to 5, on the facts alleged by the Defendant, might sustain
claims of violations by the Applicant. The Order, which is the vehicle for
dealing with preliminary matters in the counter-claim, should have contained
a reasoned decision on this point.
The matter may usefully be looked at in the following way. There either is,
or is not, jurisdiction to sustain claims, on the basis of the facts alleged
by the United States, in relation to Article X, paragraphs 2 to 5. If an
initial claim could have been brought claiming breaches of these provisions,
that cannot be taken away by virtue of the fact that the Court has already
established its jurisdiction, in respect of another provision (Art. X, para.
1) in respect of claims articulated by Iran.
This would in effect revise treaty jurisdiction "as recognized by the
parties" through a judicial finding on jurisdiction relating to an initial
claimant under a particular provision. [p 221]
If, arguendo, the treaty provisions of Article X, paragraphs 2 to 5, would
have founded jurisdiction in an initial claim then presumably the United
States could still bring a claim de novo even if it is not allowed to do so
as a counter-claim under the Court's Order. Such a result is hardly
consistent with the stated purpose of counter-claims, namely, convenience of
court management. It underlines that what is required under Article 80,
paragraph 1, of the Rules is that a counter-claim "comes within the
jurisdiction of the Court" by reference to the normal juris-dictional
principles rather than by reference to the particular basis of jurisdiction
that the initial claimant happens to have relied on in relation to its own
particular facts.
**
If the United States might reasonably have expected a reasoned response to
its claim that the Court has jurisdiction under Article X, paragraphs 2 to
5, as well as under Article X, paragraph 1, Iran might reasonably have
expected that, on the basis of equality of treatment, this Order would have
resolved two items on which it is in fact silent.
In the counter-claim the facts alleged concern destruction of vessels rather
than oil platforms. The issue of whether Article X, paragraph 1, is
restricted to commerce between the two Parties was fully canvassed as an
issue relevant to jurisdiction in the jurisdictional phase of this case. In
the event, the Court stated that it did "not have to enter into the question
whether [Article X, paragraph 11 is restricted to commerce 'between' the
Parties" as it was "not contested between them that oil exports from Iran to
the United States were — to some degree — ongoing" (Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996, pp. 817-818, para. 44). And in the context of
the counter-claim there is not agreement as to the existence that all the
vessels were engaged in commerce between the Parties. Iran argues that in
many of the incidents cited by the United States in its counter-claim, the
vessels "were not (even arguably) engaged in commerce or even navigation
between the territories of the High Contracting Parties" (Iranian Request,
para. 21). It would seem that, in order to determine whether it has
jurisdiction in respect of claims relating to damage to warships under
Article X, paragraph 1, of the Treaty, the matter which it was not necessary
to decide in 1996 must now be decided in 1998. Iran has treated this
question as going to jurisdiction and as relevant to the conditions laid
down in Article 80, paragraph 1, of the Rules of Court. [p 222]
Parties to litigation should be treated in a comparable manner. But, from
the silence of the Court in the present Order, it seems that what it saw as
a jurisdictional question when determining United States preliminary
objections to the main claim it treats as a matter for the merits when
considering Iran's response to the counter-claim.
Second, Iran claims that those itemized vessels identified as warships are
excluded from the reach of Article X, paragraph 1, by the terms of Article
X, paragraph 2. This may or may not be correct in the particular context.
But the silence of the Order on this question — which Iran clearly saw as
relevant to the "direct connection" requirement in Article 80, paragraph 1,
of the Rules, and thus as preliminary — means that Iran will perforce have
to answer on the merits al1 contentions of fact and law relating to the
claims concerning warships. The Court has not applied the same procedures,
in determining the scope of its jurisdiction under the Treaty, to both of
the Parties.
Undoubtedly, some of the difficulties stem from the terms of Article 80
itself. Paragraph 1 of Article 80 contains two requirements for
counterclaims to be admissible — that they have a direct connection with the
subject-matter of the claim and that they come within the jurisdiction of
the Court. Paragraph 3 of Article 80 provides that the Court shall hear the
parties "In the event of doubt as to the connection between the question
presented by way of counter-claim and the subject-matter of the claim of the
other party." No provision is made to hear the parties in the event of doubt
as to whether the counter-claim comes within the jurisdiction of the Court.
It might be thought that this was perhaps deliberate, and that the intention
was that the Court would resolve any doubts as to its jurisdiction only when
it got to the merits. This would be a sort of standing exception to Article
79, paragraph 6, of the Rules (or, put differently, a counter-claim where
jurisdiction is contested would always and necessarily be treated as not
having an exclusively preliminary character under Article 79, paragraph 7).
In any event, the idea that "direct connection" within the meaning of
Article 80, paragraph 1, should be disposed of as a preliminary matter,
while the jurisdiction requirement in Article 80, paragraph 1, should be
dealt with on the merits finds no support at al1 in the travaux
préparatoires of the various versions of the Rules, including the present
Rules. The failure of Article 80, paragraph 3, to "match" Article 80,
paragraph 1, seems to have been inadvertent and there was no intention to
distinguish between objections relating to "connection" and those to
"jurisdiction".
What can be said is that the travaux do show that the Court has, since 1922,
resolved to keep ample room for discretion in the handling of these [p 223]
matters, on a case-by-case basis. In the exercise of this discretion the
Court has determined that the reference in Article 80, paragraph 3, in case
of doubt as to "connection", to the phrase "after hearing the parties" may
be taken in a particular case as the receipt of written submissions FNl.
Oral submissions are neither required by the terms of Article 80, paragraph
3, nor excluded. Further, the Court has also found sufficient freedom to
decide, notwithstanding the apparently limiting terminology of Article 80,
paragraph 3, that the Parties may be heard (whether in writing or orally) on
the question of jurisdiction as well as on the question of connection.
---------------------------------------------------------------------------------------------------------------------
FN1
This matter is raised in footnote 2 of Iran's Request and in the declaration
of Judge ad hoc Kreèa and the separate opinion of Judge ad hoc Lauterpacht
in the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Counter-Claims, Order of 17 December 1997, I.C.J. Reports
1997, pp. 262-271 and 278-286, respectively.
---------------------------------------------------------------------------------------------------------------------
The exception allowed in Article 79, paragraph 7, whereby preliminary
matters are not disposed of at the preliminary phase, is to be used
sparingly, lest the purpose underlying the 1978 alteration to that Article
be negated. Further, the tests applied to Iran to see if its claims came
under the 1955 Treaty should equally have been applied to the United States
(i.e., to see, if on the facts alleged, a counter-claim could possibly lie
under particular articles and clauses). The process by which certain claims
of Iran were found not to be within the jurisdiction of the Court under the
Treaty of Amity, and would thus not proceed to the merits, should be equally
applied to the counter-claims of the United States to see whether or not
they should advance in their entirety to the merits.
There is much to be said for three judicial principles. First, judicial
conclusions should be justified by legal reasons. Second, matters going to
jurisdiction should, whenever possible, be disposed of before proceeding to
the merits. Third, parties to litigation are entitled to an equality of
treatment (see, for example, Barcelona Traction, Light and Power Company,
Limited, Preliminary Objections, I.C.J. Reports 1964, p. 25; Request for an
Examination of the Situation in Accordance with Paragraph 63 of the Court's
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France)
Case, Order of 22 September 1995, I. C.J. Reports 1995, p. 296).
(Signed) Rosalyn Higgins.
[p 224]
DISSENTING OPINION OF JUDGE RIGAUX
[Translation]
A. DELIMITATION OF THE QUESTION SUBMITTED TO THE COURT
On 23 June 1997, the United States of America filed its Counter-Memorial in
the main action and appended to it a counter-claim. On 18 November 1997, the
Islamic Republic of Iran filed a "Request for Hearing in Relation to the
United States Counter-Claim Pursuant to Article 80 (3) of the Rules of
Court". On 18 December 1997, the United States submitted a statement on that
request to the Court.
While maintaining that the Court has jurisdiction to entertain the
counter-claim put forward in the Counter-Memorial of 23 June 1997, all that
the statement seeks is that the Court should rule on the request for an
adversarial hearing. In the words of the statement:
"Under the Rules of Court, the only legally relevant issue now is whether
there is 'doubt' as to whether the US counter-claim is 'directly connected
to the subject matter' of Iran's claim. Here, there can be no such doubt.
There is therefore no basis for Iran's demand for a hearing or for its
insistence that the counter-claim not be joined to the original
proceedings." (Para. 3.)
Although this passage in the statement by the United States is included in
the Order (para. 22), the Court does not infer from it the consequences
which the passage should have implied, namely that the Court is not asked to
consider whether a direct connection exists between the original claim and
the counter-claim, nor even whether such a connection is not in doubt. The
Court's sole choice is between the two limbs of the following alternative:
either, if it considers that the connection is in doubt, to proceed to an
adversarial oral hearing on that point, or else to dismiss the request of
the Islamic Republic of Iran.
The second limb of the alternative does not imply that the Court should
reply in the affirmative (the connection is not in doubt), but that the
issue should be joined to the merits. That is also the position of the
United States in the concluding observations of the statement of 18 December
1997:
"The thrust of Iran's position is not whether the US counter-claim is
connected to the subject matter of Iran's claim, but whether there [p 225]
is a valid US counter-claim at all. The Court cannot make such a
determination at this stage of the proceedings. It certainly should not
allow Iran to avoid responding to the merits of the US counterclaim." (Para.
43.)
B. THE INTERPRETATION OF ARTICLE 80 OF THE RULES OF COURT
Paragraph 1 of Article 80 makes the admissibility of a counter-claim subject
to two substantive conditions:
— the counter-claim must have a direct connection with the subject-matter of
the original claim,
— it must come within the jurisdiction of the Court.
Paragraph 2 of Article 80 contains a condition of form.
Paragraph 3 of Article 80 raises two issues:
— doubt as to the connection,
— the decision by the Court "after hearing the parties"
Accordingly, in the present case, the Court will have to answer four
questions:
1. Is there a direct connection between the two actions?
2. Does the counter-claim come within the jurisdiction of the Court?
3. In regard to the first question, is there doubt about the connection
alleged?
4. If there is doubt, the Court must hear the Parties.
The answers turn upon three notions which are neither defined by the Rules
of Court nor treated to any great extent in the jurisprudence:
1. What is a direct connection?
2. Is there or is there not doubt about the connection?
3. If there is, does the phrase "after hearing the parties" require oral
proceedings?
As stated in point A above, the only question at present before the Court is
whether there is doubt about the connection. If the answer to this question,
itself formulated negatively, is in the negative, that does not mean that
the connection is established, nor even that it is held not to be in doubt,
but that the various other questions should be joined to the merits. Subject
to the premature nature of this discussion, these different questions will
now receive a concise treatment. [p 226]
I. THE EVOLUTION IN THE RULES OF COURT
Following the succinct reference in the 1922 Rules of Court, the changes
made in 1936, 1976 and 1978 had the effect of stating explicitly the
conditions for a counter-claim to be brought, and of doing so restrictively.
The dual requirement of "direct connection" and competence emerged in 1936.
The Rules adopted by the present Court in 1946 added a procedural rule: "In
the event of doubt as to the connection between the question presented by
way of counter-claim and the subject-matter of the application the Court
shall, after due examination, direct ..."
In 1978, this wording was moved to paragraph 3 of Article 80, with the words
"after hearing the parties" substituted for the words "after due
examination".
One of the main changes, that of 1936, was clearly inspired by Judge
Anzilotti, who had presided over the Permanent Court when it pronounced
judgment on the merits in the Factory at Chorzów case in 1928. The article
published by the eminent judge, in Italian in 1929, and translated into
French the following year FNl bears the imprint of that determination and
can, in a way, be seen as a statement of the reasons for Article 63 as
adopted in 1936.
---------------------------------------------------------------------------------------------------------------------
FN1
D. Anzilotti, "La riconvenzione nella procedura internazionale", VIII
Rivista di diritto internazionale, 1929, pp. 309-327; "La demande reconventionnelle en
procédure inter-
nationale", Journal du droit international (Clunet), 1930, Vol. 57, pp.
857-877.
---------------------------------------------------------------------------------------------------------------------
After pointing out that the Factory ut Chorzów case was the first in which
the Permanent Court had had to rule on the admissibility of a counter-claim,
Judge Anzilotti examined first whether Article 40 of the 1922 Rules of Court
was in conformity with the Court's Statute, which had made no provision for
a counter-claim being brought; he decided that it was, and today this is no
longer disputed. He emphasized the exceptional nature of counter-claims,
which could only be "certain claims which have some connection with that of
the applicant" FN2.
---------------------------------------------------------------------------------------------------------------------
FN2Clunet, 1930, p. 866. It may be thought that "a connection which is
certain" would have been a more accurate translation of the original Italian
"certa connessione".
---------------------------------------------------------------------------------------------------------------------
As regards the condition of jurisdiction which Judge Anzilotti held to be
necessary, it implies that, unlike the solution adopted in some municipal
systems of law, a connection does not, by virtue of Article 40 of the 1922
Rules, justify an extension of the Court's jurisdiction (Clunet, 1930, p.
869).
The second condition which the 1936 Rules was to include, namely the
existence of a qualified connection, appears in Judge Anzilotti's article as
well. The three statements which he makes in this connection are worthy of
notice:
"The counter-claim can only be allowed in exceptional cases, where it has a
special connection with the principal claim." (P. 870.) [p 227]
"There are ... cases in which the respondent's claim has such a strong
connection with that of the applicant in the main action ..." (P. 870.)
"It is left to the Court to determine the cases in which the counterclaim
has a juridical nexus with the principal claim." (Ibid.)
In so doing, Judge Anzilotti seems certain to have spelt out, with al1 due
amplification, the thinking behind the 1928 Judgment.
These observations by the Permanent Court reveal clearly the notion of a
connection between the two claims, of such a kind that it would have been
neither appropriate nor equitable to rule on the claim by Germany without at
the same time ruling on the claim by Poland: the decision seems therefore to
fulfil the general criteria set forth earlier (p. 872).
This was also the position maintained by Judge Anzilotti at the meetings of
the Court in 1934 concerning what was to become Article 63 of the Rules of
the Permanent Court (P.C.I. J., Series D, 1936, Third Addendum to No. 2, pp.
104-117). The views of Judge Negulesco are in agreement here and he gives a
very restrictive example of the notion of "direct connections (ibid., p.
111). In the opinion of Judge Fromageot (ibid., p. 112) and Judge Wang
(ibid., p. 114) the counter-claim should be based on the same facts as the
main action; however, that very restrictive definition of a "direct
connection" was not followed by al1 the members of the working group (see
inter alia the opinion of Judge Schücking, ibid., p. 112).
II. THE JURISPRUDENCE OF THE PERMANENT COURT AND OF THE PRESENT COURT
A number of judgments provide indications of the "direct" or close character
of a connection.
Just one judgment predates the introduction of this notion into the Rules of
Court, but it was given under the presidency of Judge Anzilotti and appears
to be in keeping with the restrictive conception of connection that he
developed in the doctrinal study published a year later. Seeking to secure a
ruling that the value of rights and interests allegedly passing into the
ownership of the respondent State (applicant in the counter-claim) under
Article 256 of the Treaty of Versailles should be deducted from the
indemnity claimed in the main action, the counter-claim was "juridically
connected with the principal claim" (case concerning Factory ut Chorzów,
Merits, Judgment No. 13, P.C.I.J., Series A, No. 17, p. 38).
In the case concerning Diversion of Water from the Meuse (Judgment, 1937,
P.C.I.J., Seriies A/B, No. 70), the counter-claim of the respondent State in
the main action was for a ruling by the Court that the violation of the
Belgian-Dutch Treaty of 12 May 1863 alleged against it had been preceded by
a similar violation of which it accused the applicant State. The Permanent
Court found that the claim was "directly connected with the principal claim"
(ibid., p. 28). The dismissal of the counter-claim [p 228] on the merits was
the subject of several dissenting opinions. The most notable was that of
Judge Anzilotti, who saw in the counter-claim an application of exceptio non
adimpleti contractus justifying dismissal of the principal claim on that
point (ibid., pp. 49-52). As Judge Hudson saw it, this exception was an
equitable principle that the Court ought to have applied (ibid., pp. 75-78).
The Panevezys-Saldutiskis Railway case (Judgment, 1939, P.C.I.J., Series
A/B, No. 76, p. 4) tells us nothing about the position of the Permanent
Court regarding counter-claims, since the Court upheld a plea of
non-admissibility inferred from the non-exhaustion of local remedies.
The two most significant judgments come from the present Court.
In the Asylum case (I.C.J. Reports 1950, p. 265), often also called the Haya
de la Torre case, the principal claim — seeking a ruling that the Government
of Peru was at fault for having delivered the safe-conduct to which Raul
Haya de la Torre was allegedly entitled under the doctrine of diplomatic
asylum — was echoed by the counter-claim of that Government asking the Court
to find that the asylum had been granted in breach of the rules of
international law obtaining between the two countries. According to the
Court:
"It emerges clearly from the arguments of the Parties that the second
submission of the Government of Colombia, which concerns the demand for a
safe-conduct, rests largely on the alleged regularity of the asylum, which
is precisely what is disputed by the counter-claim. The connexion is so
direct that certain conditions which are required to exist before a
safe-conduct can be demanded depend precisely on facts which are raised by
the counter-claim. The direct connexion being thus clearly established . .
." (I.C.J. Reports 1950, pp. 280-281).
In the case concerning Rights of Nationals of the United States of America
in Morocco (I.C.J. Reports 1952, p. 176), the applicant State in the main
action does not seem to have raised any objection to the counter-claim
brought against it (at least there is no trace of any in the statement of
reasons to the Judgment), but the connection between the two claims appears
to be indisputable, since they both concerned the rights of which United
States nationals in Morocco could avail themselves.
A passage from the Order of 15 December 1979 (United States Diplomatic and
Consular Staff in Tehran, Provisional Measures, I.C.J. Reports 1979, p. 15,
para. 24) emphasizes the hypothetical nature of the notion of "close
connection" ("if the Iranian Government considers . . .") and so provides no
indication as to a solution of the various questions which will subsequently
have to be submitted to the Court in the present case: what is to be
understood by "direct connection" ? When is such a connection not in doubt?
What do the words "hearing the parties" mean? [p 229]
Paragraph 33 of the Order of 17 December 1997 (Application of the Convention
on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports
1997, p. 258) refers to the sovereign power of the Court to appreciate
whether the link between the two claims is sufficient, seeing that no
definition exists of the concept of "direct connection".
Doctrinal comment on the Rules of Court is usually confined to paraphrasing
excerpts from the jurisprudence just mentioned. An eminent jurist who was a
Member of both Courts appears to come very close to the reserved attitude of
Judge Anzilotti:
"It goes without saying, however, that the applicant State in the main
action cannot have imposed upon it in this way, which is neither that of the
Special Agreement nor that of the Application, no matter what claim. The
counter-claim introduces fresh elements into the proceedings. To permit the
respondent State to take advantage of its position to formulate, by mere
submissions and without any other condition, a fresh claim with which the
Court would be alone in dealing would contravene the fundamental statutory
provisions set forth in Article 63, which seeks to preserve, under the
supervision of the Court, a balance between the parties: . . . The question
of direct connection not being perfectly clear in itself, the article adds:
'In the event of doubt as to the connection between the question presented
by way of counter-claim and the subject-matter of the application the Court
shall, after due examination, direct whether or not the question thus
presented shall be joined to the original proceedings."' (Charles De
Visscher, Aspects récents du droit procédural de la Cour internationale de
Justice, 1966, pp. 114-115.)
Charles De Visscher's conclusion, which was to be echoed by other
commentators, was the following:
"It [the application of the counter-claim system] requires the attentive
supervision of the Court and depends to a great extent on the special
features of the case in question." (Op. cit., p. 116.)
The detailed commentary on the jurisprudence of both Courts in the work of
Mrs. Geneviève Guyomar (Commentaire du Règlement de la Cour internationale
de Justice adopté le 14 avril 1978, Interprétation et pratique, 1983, pp.
518-525) contains an objective account of the jurisprudence of both Courts
and of the "travaux préparatoires" for the changes made to the Rules of
Court.
The commentary of Ambassador Shabtai Rosenne (Procedure in the International
Court. A Commentary on the 1978 Rules of the International Court of Justice,
1983, p. 171) contains an interesting clarification of the scope of
paragraph 3 of Article 80:
"Paragraph 3 corresponds to the last sentence of the previous Rules. Here
the expression 'after hearing the parties7 replaces the former 'after due
examination'. This means that in future there will always be some oral
proceedings in the event of doubt — by whom [p 230] is not stated — as to
the connection between the question presented by way of counter-claim and
the subject matter of the claim of the other party."
Mr. Rosenne's commentary offers a dual interpretation of the Rules: the
expression "after hearing the parties" refers to oral proceedings and their
precondition is that the direct connection should be in doubt. The same
solution is reiterated in the third edition of The Law and Practice of the
International Court, Vol. III, 1997, pp. 1272-1273).
None of the precedents provides any answer to the questions the Court will
have to decide in the case now pending. None of the cases previously judged
reveals any serious questioning of the admissibility of the counter-claim.
In all instances both claims concerned the same facts, and to rule on the
counter-claim the Court had no need to examine new facts. The issue raised
by Article 80, paragraph 3, was also a novel one, as observed by Mr. Rosenne
(ibid., pp. 1273-1274), until the Order of 17 December 1997 (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide,
1.C.J. Reports 1997, p. 243).
In that Order the Court exercised the discretion allowed it by Article 80,
paragraph 3, of its Rules, and it considered itself sufficiently well
informed about the respective positions put forward in writing to be able to
rule on the admissibility of the counter-claims. This would nevertheless not
prevent the Court, in any subsequent case, from exercising the same
discretion differently.
III. THE GENERAL PRINCIPLES OF LAW
The notions of counter-claim and connection used in Article 80 of the Rules
of Court are borrowed from the vocabulary of the municipal law of procedure.
This raises the question whether the Court could rely on general principles
of law developed from convergent practice in municipal systems. That would
appear to have deserved more painstaking examination. Here are a few
examples taken from French law, Belgian law and the law of the European
Communities.
(a) Counter-claims
France's New Code of Civil Procedure ranks the counter-claim among
incidental claims. The admissibility of such a claim may depend on the
jurisdiction assigned to the Court in which it is pending (Art. 38).
Article 64 of that Code gives the following definition: [p 231]
"A counter-claim shall be a claim whereby the original defendant seeks an
advantage other than the mere dismissal of his opponent's claim."
Apart from the condition of assigned jurisdiction just referred to, the
admissibility of a counter-claim is restricted by Article 70 of the same
Code:
"Counter-claims or additional claims shall not be admissible unless there is
a sufficient link between them and the original claims.
A claim for compensation shall nevertheless be admissible even in the
absence of such a link, subject to the proviso that the court may sever it
should it be liable excessively to delay trial of the case as a whole."
The "sufficient link" between the two claims (Art. 70, para. 1) is an
indeterminate concept not spelled out by the lawmakers. The Court of
Cassation has inferred from this that the court trying the main action had
discretion to determine the alleged link between the two claims (see, in
particular, Civ. Ire, 6 June 1978, Bull. civ., I, p. 171; Civ. 3e, 21 May
1979, D. 1979, IR 509; Civ. 2e, 14 January 1987, Bull. civ., II, p. 7).
Article 14 of the Belgian Judicial Code contains a definition close to that
of Article 64 of the New French Code of Civil Procedure:
"A counter-claim is an incidental claim brought by the defendant for the
purpose of securing judgment against the plaintiff."
In dealing with assigned jurisdiction, Article 563 of the Belgian Code
distinguishes the court of first instance — a court of general jurisdiction
— from the courts of special jurisdiction:
"The court of first instance shall hear counter-claims whatever their nature
and amount.
The labour court, the commercial court and the justice of the peace shall
hear counter-claims which, whatever their amount, come within the
jurisdiction assigned to them or derive either from the contract or from the
fact serving as a basis for the original claim." (See G. Closset-Marchal,
"Les demandes reconventionnelles depuis l'entrée en vigueur du code
judiciaire", Annales de droit de Louvain, 1992, pp. 3-32.)
Despite its highly liberal approach to counter-claims, and perhaps as a
corrective to it, the Belgian Judicial Code contains a caveat in Article
810:
"If the counter-claim is likely to cause excessive delay in the trial of the
principal claim, the two claims shall be tried separately." [p 232]
(b) Connection
In the municipal law of procedure, connection (often joined to litis
pendens) justifies the joinder of cases bïought separately and, as the case
may be, is a ground for extending the jurisdiction of the court first
seised. The simplest case is the submission of two connected claims to
different chambers of the same court. In that event, an order of the
presiding judge, a purely interna1 measure, will suffice to join the cases
(see Article 107 of the New French Code of Civil Procedure).
Article 101 of that Code reads as follows:
"Should two cases brought before two separate courts be connected in such a
way that it is in the best interests of justice to hear and determine them
together, one of these courts may be asked to relinquish jurisdiction and
transfer the case as it stands to the other court."
The tautological wording of this text conceals the absence of any definition
of connection: cases linked in such a way that they should be joined are
deemed to be connected, according to so vague a criterion as "the best
interests of justice". Hence the Court of Cassation decided that, since the
law leaves it to the court seised of the merits to assess the circumstances
establishing a connection, a court of appeal is exercising its unfettered
discretion in ordering a joinder to the merits (Civ. 1re, 9 October 1974,
Bull. civ., I, p. 223).
Where the court seised of the merits finds that there is a connection, two
legal consequences arise: relinquishment of the case by the second court
seised and, in certain instances, extension of the jurisdiction of the first
court seised. Such extension is not always possible where there is exclusive
jurisdiction. (In doctrinal writing: Loïc Cadet, Droit judiciaire privé,
1992, Nos. 632-633; Jean Vincent and Serge Guinchard, Procédure civile, 23rd
ed., 1994, pp. 334-338; Jacques Héron, Droit judiciaire privé, 1991, pp.
636-641).
Article 30 of the Belgian Judicial Code gives a similarly tautological
definition of connection to that found in French law. Here too, appraisal of
the existence of "such a close link that they can usefully be heard and
determined at the same time" is also at the sole discretion of the court
seised of the merits (Cass., 6 June 1961, Pas., 1961,I, 1082; 4 September
1987, Pas., 1988, I, 4, and note 3).
(c) Counter-claims and connection in relations between courts of different
States
The Franco-Belgian Convention of 8 July 1899 on jurisdiction and the
authority and enforcement of judicial decisions, arbitral awards and
authentic instruments dealt, in two paragraphs of a single article, with
transfer of proceedings on the ground of connection (Art. 4, para. 1) and
the jurisdiction with respect to counter-claims of the court seised (Art. 4,
para. 2). [p 233]
The second sentence in Article 4, paragraph 1, contains a restrictive
definition of connection: "Only disputes arising from the same cause or
relating to the same subject-matter may be regarded as connected."
As regards counter-claims, Article 4, paragraph 2, did not make their
admissibility subject to any other condition than the jurisdiction of the
court seised "by virtue of the matter concerned".
The Brussels and Lugano Conventions on jurisdiction and the enforcement of
judgments in civil and commercial matters, the former of which is in force
between the States of the European Union, and the latter between the same
States and certain States of the European Free Trade Association, also
contain rules on counter-claims and connection.
Under Article 6, paragraph 3, of each of these two Conventions:
"A person domiciled in a Contracting State may also be sued:
………………………………………………………………………………………………
3. On a counterclaim arising from the same contract or facts on which the
original claim was based, in the court in which the original claim is
pending."
Where connection is concerned, Article 22, paragraph 3, of each of the two
Conventions gives a tautological definition which seems to be inspired by
Belgian or French law:
"For the purposes of this Article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
sèparate proceedings."
However, unlike the situation obtaining in municipal law, connection is not
a source of jurisdiction (Hélène Gaudemet-Tallon, Les conventions de
Bruxelles et de Lugano, 1993, No. 297).
The same authoritative commentator on the two Conventions notes how strict
the condition is for the admissibility of a counter-claim, and she proposes
an interpretation which would seem better to suit the intentions of the
authors of the Convention, namely, "that the notion contemplated was rather
the more flexible one of a connection" (op. cit., No. 229).
*
By comparison with the provisions of procedural law which govern private-law
disputes, Article 80 of the Rules of Court is distinguished by the link it
establishes between the admissibility of a counter-claim and the two claims
being "directly connected". This comparison calls for three remarks:
1. Whereas in municipal procedural law the admissibility of counterclaims
and the joinder of related claims are two separate institutions, the [p 234]
Rules of Court make the former subject to the establishment of a direct
connection.
2. The Rules do not contemplate any extension of jurisdiction in favour of
the admissibility of the counter-claim: to be admissible, the counter-claim
must fall within the jurisdiction of the court before which the original
claim is pending. In municipal law, the assigned jurisdiction of that court
is sometimes, but not always, extended to enable it to entertain a
counter-claim which, otherwise, would lie outside its jurisdiction.
3. The independent nature of the two institutions in municipal procedural
law is brushed aside by provisions which, like Article 70 of the New French
Code of Civil Procedure and Article 6, paragraph 3, of the Brussels and
Lugano Conventions, require the existence of a "sufficient link" (Art. 70),
defined more precisely in Article 6, paragraph 3, quoted above. This link
may be regarded as analogous to what is required for the joinder of
connected claims. The originality of Article 80 of the Rules of Court is
that it does not — even tautologically — define connection, but qualifies it
with an epithet ("directly connected"), of which there is no equivalent in
the models of municipal procedural law discussed earlier.
The Court could learn from three municipal law solutions (which are confined
to two similar systems in the foregoing discussion), namely that the
connection is particularly close when the two claims are based on the same
fact (see Article 563, paragraph 2, of the Belgian Judicial Code and Gérard
Couchez, Procédure civile, 8th ed., 1994, No. 376) or that the counter-claim
is only admissible if "arising from the same contract or facts on which the
original claim was based" (Brussels and Lugano Conventions, Art. 6, para.
3); that the assessment of the connection is a specific determination lying
outside supervision by the Court of Cassation, an idea which, transposed to
the particular function of the International Court of Justice, might also
inspire decisions appropriate to the particular circumstances of the case;
and that one element for consideration in such an assessment is the delay
which the joinder of the two claims would mean for the determination of the
principal claim (Belgian Judicial Code, Art. 810; New French Code of Civil
Procedure, Art. 70, para. 2).
CONCLUSION
The reasoning at the basis of the Order, whose main operative provision 1
found myself unable to support, is directly inspired by the Order of 17
December 1997 in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide. Many of the recitals in
the present Order reproduce verbatim the terms of the Order of 17 December
1997. The force of res judicata, which is beyond dispute, or even the
relative force of a case already adjudicated between other parties, is not
undermined by the observation that the doctrine of pre-[p 235]cedent
includes the art of distinguishing between one case and another submitted to
the same court in turn. What the present Order asserts in relation to
"direct connection", namely "whereas it is for the Court, in its sole
discretion, to assess . . . taking account of the particular aspects of each
case" the existence of a sufficient link between the two claims, applies
equally to the application of Article 80, paragraph 3, of the Rules: is
there doubt about such a link? It would therefore have been appropriate for
the Court to ascertain how far "the particular aspects" of the present case
would have warranted a departure by it from the previous decision without in
any way undermining the force of the decision as a precedent. In the case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide the facts forming the subject-matter of the respective
claims of the two Parties were of the same kind (accusation of the crime of
genocide) and had occurred in the same territory during the same period: In
the present case too, but to a lesser extent, there is unity of time and
place but not unity of action: the deliberate destruction of oil platforms,
immobilized in the middle of the Persian Gulf, is quite different from the
laying of mines and attacks on ships sailing in other parts of the Gulf.
Hence, there are serious reasons for doubting the apparent connection
between these two series of facts. The Court could therefore have
accommodated Iran's claim that the reply to this question should form the
subject-matter of adversarial oral proceedings.
Although, as the Court decided, it was sufficiently well informed by the
written observations exchanged between the Parties, it was not immediately
seised either of the question whether the direct connection was established,
or whether the very varied claims made in the Counter-Memorial of the United
States all met this condition and the condition of its jurisdiction.
Admittedly, the terms in which the Court affirmed its jurisdiction .in
paragraph 36 in reality leave this question open, since only a detailed
examination of each of the claims formulated by the United States is able to
provide a reply to this question, as well as to the question of the
sufficiency of the connection between each of these claims and the principal
one. The summary examination undertaken by the Court during a purely
procedural phase, when it had dispensed with an adversarial oral hearing of
the Parties, does not make it possible to rule with certainty on whether all
the counter-claims meet the substantive conditions in Article 80, paragraph
1, even though there is no doubt that they meet the forma1 condition in
paragraph 2.
These are the reasons why I could not associate myself with al1 the other
Members of the Court in regard to the first subparagraph of the operative
part of the Order.
(Signed) François Rigaux. |
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