6 November 2003

 

General List No. 90

 
     

international Court of Justice

     
 

Oil Platforms

 
     

Iran

 

v. 

United States

     
     
 

Judgment

 
     
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BEFORE:

President: Shi;
Vice-President: Ranjeva;
Judges: Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka;
Judges ad hoc: Rigaux

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2003.11.06_oil_platforms.htm
   
Citation: Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6)
   
Represented By: Iran: Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-United States Claims Tribunal, Deputy Director for Legal Affairs, Bureau of International Legal Services of the Islamic Republic of Iran, The Hague, as Agent;
Mr. D. Momtaz, Professor of International Law, Tehran University, member of the International Law Commission, Associate Member of the Institute of International Law;
Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company;
Mr. Michael Bothe, Professor of Public Law, Johann Wolfgang Goethe University of Frankfurt-am-Main, Head of Research Unit, Peace Research Institute, Frankfurt;
Mr. James R. Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, Member of the Institute of International Law;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the International Law Commission;
Mr. Rodman R. Bundy, avocat a la cour d'appel de Paris, member of the New York Bar, Frere Cholmeley/Eversheds, Paris;
Mr. David S. Sellers, avocat a la cour d'appel de Paris, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris, as Counsel and Advocates;
Mr. M. Mashkour, Deputy Director for Legal Affairs, Bureau of International Legal Services of the Islamic Republic of Iran;
Mr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company;
Mr. R. Badri Ahari, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran, Tehran;
Mr. A. Beizaei, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran, Paris;
Ms Nanette Pilkington, avocat a la cour d'appel de Paris, Frere Cholmeley/Eversheds, Paris;
Mr. William Thomas, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris;
Mr. Leopold von Carlowitz, Research Fellow, Peace Research Institute, Frankfurt;
Mr. Mathias Forteau, docteur en droit, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre,
as Counsel;
Mr. Robert C. Rizzutti, Vice-President, Cartographic Operations, International Mapping Associates, as Technical Adviser;

United States: The Honourable William H. Taft, IV, Legal Adviser, United States Department of State, as Agent;
Mr. Ronald J. Bettauer, Deputy Legal Adviser, United States Department of State, as Co-Agent;
Mr. Michael J. Matheson, Professor, George Washington University School of Law;
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States Department of State;
Mr. Michael J. Mattler, Attorney-Adviser, United States Department of State;
Mr. Sean Murphy, Professor, George Washington University School of Law;
Mr. Ronald D. Neubauer, Associate Deputy General Counsel, United States Department of Defence;
Mr. Prosper Weil, Professor Emeritus, University of Paris II, Member of the Institute of International Law, member of the Academie des sciences morales et politiques (Institut de France), as Counsel and Advocates;
Mr. Paul Beaver, Defence & Maritime Affairs Consultant, Ashbourne Beaver Associates, Ltd., London;
Mr. John Moore, Senior Associate, C & O Resources, Washington D.C., as Advocates;
Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague;
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague;
Ms Kathleen Milton, Attorney-Adviser, United States Department of State, as Counsel;
Ms Marianne Hata, United States Department of State;
Ms Cecile Jouglet, United States Embassy, Paris;
Ms Joanne Nelligan, United States Department of State;
Ms Aileen Robinson, United States Department of State;
Ms Laura Romains, United States Embassy, The Hague, as Administrative Staff.

 
     
 
 
     
 

[p.161]

THE COURT,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 2 November 1992, the Government of the Islamic Republic of Iran (hereinafter called "Iran") filed in the Registry of the Court an Application instituting proceedings against the Government of the United States of America (hereinafter called "the United States") in respect of a dispute

"arising out of the attack [on] 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".

In its Application, Iran contended that these acts constituted a "fundamental breach" of various provisions of the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, which was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957 (hereinafter called "the 1955 Treaty"), as well as of international law. The Application invoked, as a basis for the Court's jurisdiction, Article XXI, paragraph 2, of the 1955 Treaty.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was immediately communicated to the Government of the United States by the Registrar; and, pursuant to paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.

3. By an Order of 4 December 1992 the President of the Court fixed 31 May 1993 as the time-limit for the filing of the Memorial of Iran and 30 November 1993 as the time-limit for the filing of the Counter-Memorial of the United States.

4. By an Order of 3 June 1993 the President of the Court, at the request of Iran, extended to 8 June 1993 the time-limit for the filing of the Memorial; the time-limit for the filing of the Counter-Memorial was extended, by the same Order, to 16 December 1993.
Iran duly filed its Memorial within the time-limit as thus extended.
5. Within the extended time-limit thus fixed for the filing of the Counter-Memorial, the United States raised a preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of the Rules of Court of 14 April 1978. Consequently, by an Order dated 18 January 1994, the President of the Court, noting that by virtue of Article 79, paragraph 3, of the Rules of Court the proceedings on the merits were suspended, fixed 1 July 1994 as the time-limit within which Iran might present a written statement of its observations and submissions on the preliminary objection raised by the United States.

Iran filed such a statement within the time-limit so fixed and the case became ready for hearing in respect of the preliminary objection.

6. Since the Court included upon the Bench no judge of Iranian nationality, Iran availed itself of its right under Article 31, paragraph 2, of the Statute of the Court to choose a judge ad hoc to sit in the case: it chose Mr. Francois Rigaux. [p 167]

7. Between 16 and 24 September 1996, the Court held public hearings on the preliminary objection raised by the United States.

8. By a Judgment dated 12 December 1996 the Court rejected the preliminary objection of the United States according to which the 1955 Treaty did not provide any basis for the jurisdiction of the Court and found that it had jurisdiction, on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty.

9. By an Order of 16 December 1996 the President of the Court fixed 23 June 1997 as the time-limit for the filing of the Counter-Memorial of the United States.

Within the time-limit thus fixed, the United States filed its Counter-Memorial; this included a counter-claim concerning "Iran's actions in the Gulf during 1987-88 which, among other things, involved mining and other attacks on U.S.-flag or U.S.-owned vessels".

10. In a letter of 2 October 1997 Iran expressed its opinion that "the counterclaim as formulated by the United States [did] not meet the requirements of Article 80 (1) of the Rules" and its wish "to submit a brief statement explaining its objections to the counterclaim".

At a meeting held on 17 October 1997 with the Agents of the Parties by 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, the two Agents agreed that their respective Governments would submit written observations on the question of the admissibility of the United States Counter-Claim.

By a communication from its Agent dated 18 November 1997, Iran transmitted 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"; by a letter dated 18 November 1997 the Registrar sent a copy of that document to the United States Government. By a communication from its Agent dated 18 December 1997, 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; by a letter dated 18 December 1997, the Registrar communicated a copy of the observations of the United States Government to the Iranian Government.

Having received detailed written observations from each of the Parties, the Court considered that it was sufficiently well informed of their respective positions with regard to the admissibility of the counter-claim.

11. By an Order of 10 March 1998 the Court held that the counter-claim presented by the United States in its Counter-Memorial was admissible as such and formed part of the current proceedings. It also directed Iran to file a Reply and the United States to file a Rejoinder, relating to the claims of both Parties, and fixed the time-limits for the filing of the Reply and of the Rejoinder at 10 September 1998 and 23 November 1999 respectively. The Court held that it was 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 [p 168] counter-claim, in an additional pleading the filing of which [might] be the subject of a subsequent Order".

12. By Order of 26 May 1998, at the request of Iran, the Vice-President of the Court, acting as President in the case, extended the time-limits for the filing of the Reply of Iran and of the Rejoinder of the United States to, respectively, 10 December 1998 and 23 May 2000. By Order of 8 December 1998, at the request of Iran, the Court subsequently extended the time-limits for the filing of the Reply and of the Rejoinder to 10 March 1999 and 23 November 2000 respectively.

Iran duly filed its "Reply and Defence to Counter-Claim" within the time-limit as thus extended.
By Order of 4 September 2000, at the request of the United States, the President of the Court extended the time-limit for the filing of the Rejoinder of the United States to 23 March 2001.

The United States duly filed its Rejoinder within the time-limit as thus extended.

13. By a letter dated 30 July 2001, the Agent of Iran, referring to the above-mentioned Order of 10 March 1998, informed the Court that his Government wished to present its views in writing a second time on the Counter-Claim of the United States.

By an Order of 28 August 2001 the Vice-President of the Court, taking account of the agreement of the Parties, authorized the submission by Iran of an additional pleading relating solely to the Counter-Claim submitted by the United States and fixed 24 September 2001 as the time-limit for the filing of that pleading.

Iran duly filed the additional pleading within the time-limit as thus fixed and the case became ready for hearing.

14. At a meeting with the President of the Court on 6 November 2002, the Agent of Iran, subject to confirmation, and the Agent of the United States agreed that the oral proceedings on the merits should begin on 17 or 18 February 2003; the Agent of Iran subsequently confirmed the agreement of his Government. At the same meeting the Agents of the Parties also presented their views on the organization of the oral proceedings on the merits.

Pursuant to Articles 54 and 58 of the Rules, the Court fixed 17 February 2003 as the date for the opening of the hearings and adopted a timetable for them. The Registrar informed the Parties accordingly by letters of 19 November 2002.

15. At the meeting of 6 November 2002, the Agents of the Parties informed the President of the Court that they had decided not to present witnesses at the oral proceedings. The Agent of the United States nevertheless expressed his Government's intention, under Article 56 of the Rules, to file a new document containing an analysis and explanations by experts concerning certain evidence already produced in the case. The Agent of Iran stated that his Government reserved all its rights with regard to the production of that document. On 20 November 2002, the United States filed an expert's report dated 18 November 2002, together with a copy of a diplomatic Note dated 20 November 2002 from the Royal Norwegian Embassy in Washington D.C. to the United States Department of State. By a letter dated 20 January 2003, the Agent of Iran informed the Court that his Government did not object to the production of the above-mentioned documents by the United States and requested that, pur-[p 169]suant to Article 56, paragraph 3, of the Rules of Court, the comments of an expert of Iran on the expert report of the United States "be made part of the record in the case". On 22 January 2003, the Court decided to authorize the production of the above-mentioned documents by the United States and the submission of the comments by Iran; by letters dated the same day, the Registrar communicated this decision to the Parties.

16. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having consulted the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings on the merits.

17. Public sittings were held between 17 February and 7 March 2003, at which the Court heard the oral arguments and replies on the claim of Iran and on the counter-claim of the United States by:

For Iran: Mr. M. H. Zahedin-Labbaf,
Mr. James R. Crawford,
Mr. D. Momtaz,
Mr. Rodman R. Bundy,
Mr. Alain Pellet,
Mr. S. M. Zeinoddin,
Mr. David S. Sellers,
Mr. Michael Bothe.

For the United States: The Honourable William H. Taft, IV,
Mr. Paul Beaver,
Mr. D. Stephen Mathias,
Mr. Ronald D. Neubauer,
Mr. John Moore,
Mr. Ronald J. Bettauer,
Mr. Michael J. Mattler,
Mr. Michael J. Matheson,
Mr. Prosper Weil,
Mr. Sean Murphy.

In the course of the hearings, questions were put by Members of the Court and replies given in writing, pursuant to Article 61, paragraph 4, of the Rules of Court. Each Party presented written observations on the written replies received from the other, pursuant to Article 72 of the Rules.

*

18. In the Application, the following requests were made by Iran:

"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, [p 170] under Articles I 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 I and X (1), 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."

19. In the written proceedings, the following submissions were made by the Parties:

On behalf of the Government of Iran,

in the Memorial:

"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 I, 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";

in the "Reply and Defence to Counter-Claim":

"With regard to Iran's claims, and in the light of the facts and arguments set out above, and subject to the reservations set out in Chapter 12 above, the Government of the Islamic Republic of Iran requests the Court to adjudge and declare:

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X (1) of the Treaty of Amity, and that the United States bears responsibility for the attacks; and

2. 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 [p 171] the Court at a subsequent stage of the proceedings, the right being reserved to introduce and present to the Court in due course a precise evaluation of the reparation owed by the United States; and

3. Any other remedy the Court may deem appropriate.

With regard to the United States' counter-claim, and in light of the facts and arguments set out above, and subject to the reservations set out in Chapter 12 above, and, in view of the present uncertain nature of the United States' counter-claim, further subject to the reservation of Iran's right to amend these submissions, Iran requests the Court to adjudge and declare:

1. That the United States' counter-claim does not fall within the scope of Article X(1) of the Treaty of Amity as interpreted by the Court in these proceedings, and accordingly that the counter-claim should be dismissed.

2. That the United States' counter-claim is, in any event, inadmissible:

(a) generally, in that the United States has not satisfied the requirements of Article XXI of the Treaty of Amity with respect to the satisfactory diplomatic adjustment of the claim;

(b) in any event, to the extent that it relates to vessels which were not of United States nationality or whose United States flag was not opposable to Iran at the time.

3. That Iran did not, in any event, breach its obligations to the United States under Article X(1) of the Treaty of Amity as interpreted by the Court in these proceedings.

4. That accordingly the United States' counter-claim be dismissed";


in the additional pleading entitled "Further Response to the United States' Counter-Claim":

"Based on the facts and legal considerations set forth in Iran's Reply and Defence to Counter-Claim in the present pleading, and subject to the reservations set out in Chapter 12 of its Reply and Defence to Counter-Claim and in Chapter VIII above and, in view of the present uncertain nature of the United States' counter-claim, further subject to the reservation of Iran's right to amend these submissions, Iran requests the Court, rejecting all submissions to the contrary, to adjudge and declare:

That the United States' counter-claim be dismissed."


On behalf of the Government of the United States,

in the "Counter-Memorial and Counter-Claim":

"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,
[p 172]

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";

in the Rejoinder:

"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, paragraph 1, of the 1955 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, the United States requests that the Court adjudge and declare:

1. Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military actions 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 its breach of the 1955 Treaty in a form and amount to be determined by the Court at a subsequent stage of the proceeding.

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."

20. At the oral proceedings, the following final submissions were presented by the Parties:

On behalf of the Government of Iran,

at the hearing of 3 March 2003, on the claim of Iran:

"The Islamic Republic of Iran respectfully requests the Court, rejecting all contrary claims and submissions, to adjudge and declare: [p 173]

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that the United States bears responsibility for the attacks; and

2. 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, the right being reserved to Iran to introduce and present to the Court in due course a precise evaluation of the reparation owed by the United States; and

3. Any other remedy the Court may deem appropriate";

at the hearing of 7 March 2003, on the counter-claim of the United States:

"The Islamic Republic of Iran respectfully requests the Court, rejecting all contrary claims and submissions, to adjudge and declare:

That the United States counter-claim be dismissed."

On behalf of the Government of the United States,

at the hearing of 5 March 2003, on the claim of Iran and the counter-claim of the United States:

"The United States respectfully 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, paragraph 1, of the 1955 Treaty 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, the United States requests that the Court adjudge and declare:

(1) Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military
[28] actions that were dangerous and detrimental to commerce and navigation between the territories of the United States and the Islamic Republic of Iran, the Islamic Republic of Iran breached its obligations to the United States under Article X, paragraph 1, 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 its breach of the 1955 Treaty in a form and amount to be determined by the Court at a subsequent stage of the proceedings."

***

21. The task of the Court in the present proceedings is to determine whether or not there have been breaches of the 1955 Treaty, and if it finds that such is the case, to draw the appropriate consequences according to the submissions of the Parties. The Court is seised both of a claim by Iran alleging breaches by the United States, and of a counter-claim by [p 174] the United States alleging breaches by Iran. Its jurisdiction to entertain both the claim and the counter-claim is asserted to be based upon Article XXI, paragraph 2, of the 1955 Treaty.

22. The Court recalls that, as regards the claim of Iran, the question of jurisdiction has been the subject of a judgment, given on 12 December 1996, whereby the Court found "that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty" (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)); certain questions have however been raised between the Parties as to the precise significance or scope of that Judgment, which will be examined below.

As to the counter-claim, the Court also recalls that it decided by an Order made on 10 March 1998 to admit the counter-claim, and indicated in that Order that the facts alleged and relied on by the United States "are capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty as interpreted by the Court", and accordingly that "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" (I.C.J. Reports 1998, p. 204, para. 36). In this respect also questions have been raised between the Parties as to the significance and scope of that ruling on jurisdiction, and these will be examined below.

It is however established, by the decisions cited, that both Iran's claim and the counter-claim of the United States can be upheld only so far as a breach or breaches of Article X, paragraph 1, of the 1955 Treaty may be shown, even though other provisions of the Treaty may be relevant to the interpretation of that paragraph. Article X, paragraph 1, of the 1955 Treaty reads as follows: "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation."

23. Before proceeding further, it will be convenient to set out the factual background to the case, as it emerges from the pleadings of both Parties; the broad lines of this background are not disputed, being a matter of historical record. The actions giving rise to both the claim and the counter-claim occurred in the context of the general events that took place in the Persian Gulf between 1980 and 1988, in particular the armed conflict that opposed Iran and Iraq. That conflict began on 22 September 1980, when Iraqi forces advanced into the western areas of Iranian territory, and continued until the belligerent parties accepted a ceasefire in the summer of 1988, pursuant to United Nations Security Council resolution 598 (1987) of 20 July 1987. During the war, combat occurred in the territories of both States, but the conflict also spread to the Persian Gulf -- which is an international commercial route and line of communication of major importance -- and affected commerce and navigation in the region. From the very beginning of the conflict, on 22 September 1980, Iran established a defence exclusion zone around its coasts; shortly after, in early October 1980, Iraq declared a "prohibited war zone" and later [p 175] established a "naval total exclusive zone" in the northern area of the Persian Gulf. In 1984, Iraq commenced attacks against ships in the Persian Gulf, notably tankers carrying Iranian oil. These were the first incidents of what later became known as the "Tanker War": in the period between 1984 and 1988, a number of commercial vessels and warships of various nationalities, including neutral vessels, were attacked by aircraft, helicopters, missiles or warships, or struck mines in the waters of the Persian Gulf. Naval forces of both belligerent parties were operating in the region, but Iran has denied responsibility for any actions other than incidents involving vessels refusing a proper request for stop and search. The United States attributes responsibility for certain incidents to Iran, whereas Iran suggests that Iraq was responsible for them.

24. A number of States took measures at the time aimed at ensuring the security of their vessels navigating in the Persian Gulf. In late 1986 and early 1987, the Government of Kuwait expressed its preoccupation at Iran's alleged targeting of its merchant vessels navigating in the Persian Gulf. It therefore requested the United States, the United Kingdom and the Soviet Union to "reflag" some of these vessels to ensure their protection. Following this request, the Kuwaiti Oil Tanker Company was able to charter a number of Soviet vessels, and to flag four ships under United Kingdom registry and 11 ships under United States registry. In addition, the Government of the United States agreed to provide all United States-flagged vessels with a naval escort when transiting the Persian Gulf, in order to deter further attacks; these escort missions were initiated in July 1987, under the designation "Operation Earnest Will". Other foreign Powers, including Belgium, France, Italy, the Netherlands and the United Kingdom, took parallel action, sending warships to the region to protect international shipping. Despite these efforts, a number of ships, including reflagged Kuwaiti vessels, merchant tankers carrying Kuwaiti oil and warships participating in "Operation Earnest Will", suffered attacks or struck mines in the Persian Gulf between 1987 and the end of the conflict.
25. Two specific attacks on shipping are of particular relevance in this case. On 16 October 1987, the Kuwaiti tanker Sea Isle City, reflagged to the United States, was hit by a missile near Kuwait harbour. The United States attributed this attack to Iran, and three days later, on 19 October 1987, it attacked Iranian offshore oil production installations, claiming to be acting in self-defence. United States naval forces launched an attack against the Reshadat ["Rostam"] and Resalat ["Rakhsh"] complexes; the R-7 and R-4 platforms belonging to the Reshadat complex were destroyed in the attack. On 14 April 1988, the warship USS Samuel B. Roberts struck a mine in international waters near Bahrain while returning from [p 176] an escort mission; four days later the United States, again asserting the right of self-defence, employed its naval forces to attack and destroy simultaneously the Nasr ["Sirri"] and Salman ["Sassan"] complexes.

26. These attacks by United States forces on the Iranian oil platforms are claimed by Iran to constitute breaches of the 1955 Treaty; and the attacks on the Sea Isle City and the USS Samuel B. Roberts were invoked in support of the United States' claim to act in self-defence. The counter-claim of the United States is however not limited to those attacks; according to the United States, Iran was in breach of its obligations under Article X, paragraph 1, of the 1955 Treaty, "in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the territories of the United States and the Islamic Republic of Iran". According to the United States, Iran conducted an aggressive policy and was responsible for more than 200 attacks against neutral shipping in international waters and the territorial seas of Persian Gulf States. Iran denies responsibility for those attacks, suggesting that they were committed by Iraq and drawing attention to Iraq's interest in internationalizing the conflict. Furthermore, Iran claims that the attitude of the Iranian authorities and the measures taken by its naval forces in the Persian Gulf were solely defensive in nature. It has emphasized that Iraq was the aggressor State in the conflict, and has claimed that Iraq received diplomatic, political, economic and military support from a number of third countries that were not formally parties to the conflict, including Kuwait, Saudi Arabia and the United States.

*

27. The Court will first consider a contention to which the United States appears to have attributed a certain preliminary character. The United States asks the Court to dismiss Iran's claim and refuse it the relief it seeks, because of Iran's allegedly unlawful conduct, i.e., its violation of the 1955 Treaty and other rules of international law relating to the use of force. The United States invokes what it suggests are three related principles in support of this request. First, a party that acts improperly with respect to the subject-matter of a dispute is not entitled to relief; according to the United States, Iran had committed, at the time of the actions against the platforms, manifestly illegal armed attacks on United States and other neutral shipping in the Persian Gulf, and it has misrepresented, in the present proceedings, the facts of the case before the Court. Second, a party that has itself violated obligations identical to those that are the basis for its application is not entitled to relief and Iran had allegedly infringed itself the "mutual and reciprocal" obligations arising from the 1955 Treaty. Third, an applicant is not entitled to relief when the actions it complains of were the result of its own wrongful con-[p 177]duct. Thus the United States claims that the attacks on the platforms were a consequence of Iran's previous wrongful behaviour in the Persian Gulf.

28. Iran responds that the concept of "clean hands" underlying these arguments of the United States, "while reflecting and incorporating fundamental principles of law inspired by good faith, is not an autonomous legal institution". It contends that the concept of "clean hands" requires the operation of other institutions or legal rules for its implementation. Iran argues that the "plaintiffs own wrongful conduct" as a ground for inadmissibility of a claim relates to claims arising in the context of diplomatic protection and concerns only a foreign individual's "clean hands", but that such a principle is irrelevant in direct State-to-State claims. According to Iran, as far as State-to-State claims are concerned, such principle may have legal significance only at the merits stage, and only at the stage of quantification of damages, but does not deprive a State of locus standi in judicio.

29. The Court notes that these issues were first raised by the United States in its Counter-Memorial, after the Judgment of the Court of 12 December 1996 on the preliminary objection of the United States to jurisdiction. In that pleading those issues were dealt with at the end, after the United States had set out its arguments on the merits, and not by way of a preliminary issue. In subsequent pleadings and in oral argument it has presented them as having rather a preliminary character, but it has nevertheless not gone so far as to suggest that they are issues of admissibility, appropriate to be enquired into before any examination of the merits. Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits. That is not the case here. The United States does not ask the Court to find Iran's claim inadmissible; it asks the Court to dismiss that claim. It does not argue that the Court should be debarred from examining the merits of the Iranian claim on the grounds of Iran's conduct; rather it argues that Iran's conduct is such that it "precludes it from any right to the relief it seeks from this Court", or that it "should not be permitted to recover on its claim". The United States invites the Court to make a finding "that the United States measures against the platforms were the consequence of Iran's own unlawful uses of force" and submits that the "appropriate legal consequences should be attached to that finding". The Court notes that in order to make that finding it would have to examine Iranian and United States actions in the Persian Gulf during the relevant period -- which it has also to do in order to rule on the Iranian claim and the United States counter-claim. [p 178]

30. At this stage of its judgment, therefore, the Court does not need to deal with the request of the United States to dismiss Iran's claim and refuse the relief that it seeks on the basis of the conduct attributed to Iran. The Court will now proceed to the consideration of the claims made by Iran and the defences put forward by the United States.

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31. As noted above (paragraph 21), the dispute in the present case has been brought before the Court on the jurisdictional basis of Article XXI, paragraph 2, of the 1955 Treaty, which provides that

"Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means."

By its Judgment of 12 December 1996, the Court found that it had jurisdiction, on the basis of this Article, "to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty" (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)), which provides, as noted above (paragraph 22), that "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation." In the reasoning of that Judgment, the Court indicated that another Article of the Treaty relied on by Iran, Article IV (which relates to reciprocal treatment of nationals and companies of each party), could not "form the basis of the Court's jurisdiction" (ibid., p. 816, para. 36). It found further that Article I of the Treaty, which provides that "There shall be firm and enduring peace and sincere friendship between the United States of America and Iran", while being "such as to throw light on the interpretation of the other Treaty provisions" and "thus not without legal significance for such an interpretation, . . . cannot, taken in isolation, be a basis for the jurisdiction of the Court" (ibid., p. 815, para. 31). The task of the Court is thus to ascertain whether there has been a breach by the United States of the provisions of Article X, paragraph 1; other provisions of the Treaty are only relevant in so far as they may affect the interpretation or application of that text.

32. In that respect, the Court notes that the United States has relied on Article XX, paragraph 1 (d), of the Treaty as determinative of the question of the existence of a breach of its obligations under Article X. That paragraph provides that

"The present Treaty shall not preclude the application of measures:
. . . .[p 179]

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

It is the contention of the United States that the actions complained of by Iran were measures necessary to protect the essential security interests of the United States, and that accordingly, if those actions would otherwise have been breaches of Article X, paragraph 1, of the Treaty, which the United States denies, the effect of Article XX, paragraph 1 (d), is that they are justified under the terms of the Treaty itself, and thus do not constitute breaches of it.

33. In its Judgment on the United States preliminary objection of 12 December 1996, the Court ruled that Article XX, paragraph 1 (d), does not afford an objection to admissibility, but "is confined to affording the Parties a possible defence on the merits" (I.C.J. Reports 1996 (II), p. 811, para. 20). In accordance with Article XXI, paragraph 2, of the Treaty, it is now for the Court to interpret and apply that sub-paragraph, inasmuch as such a defence is asserted by the United States.

34. As was noted in that Judgment, the Court has had occasion, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), to examine a provision in another treaty concluded by the United States, of which the text is substantially identical to that of Article XX, paragraph 1 (d). This was Article XXI, paragraph 1 (d), of the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. In its decision in that case, the Court observed that since that provision

"contains a power for each of the parties to derogate from the other provisions of the Treaty, the possibility of invoking the clauses of that Article must be considered once it is apparent that certain forms of conduct by the United States would otherwise be in conflict with the relevant provisions of the Treaty" (I.C.J. Reports 1986, p. 117, para. 225).

If in the present case the Court is satisfied by the argument of the United States that the actions against the oil platforms were, in the circumstances of the case, "measures . . . necessary to protect [the] essential security interests" of the United States, within the meaning of Article XX, paragraph 1 (d), of the 1955 Treaty, it must hold that no breach of Article X, paragraph 1, of the Treaty has been established.

35. To uphold the claim of Iran, the Court must be satisfied both that the actions of the United States, complained of by Iran, infringed the [p 180] freedom of commerce between the territories of the Parties guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d). The question however arises in what order the Court should examine these questions of interpretation and application of the Treaty. In the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court first examined the question whether the United States conduct constituted a prima facie breach of other provisions of the Treaty; it concluded that the United States had "committed acts which are in contradiction with the terms of the Treaty", but added that this was "subject to the question whether the exceptions in Article XXI" of the 1956 Treaty, concerning inter alia protection of the essential security interests of a party, "may be invoked to justify the acts complained of" (ibid., p. 140, para. 280). The Court thus dealt first with the substantive provisions of the 1956 Treaty, breaches of which had been alleged, before turning to Article XXI of the Treaty; in effect, it analysed that Article as providing for "exceptions" to the substantive obligations provided for in other Articles of the Treaty (see ibid., p. 116, para. 222).

36. In the present case the United States has argued that Article XX, paragraph 1 (d), of the 1955 Treaty is not a limitation on Article X, paragraph 1, nor yet a derogation from it; and that it is a substantive provision that determines, defines and delimits the obligations of the parties, simultaneously with and on the same level as Article X, paragraph 1. The United States therefore contends that there is no compelling reason to examine the question of breach of Article X, paragraph 1, before turning to Article XX, paragraph 1 (d); the Court can, it suggests, dismiss the Iranian claim either on the ground that the actions of the United States did not involve a breach of Article X, paragraph 1, or on the ground that those actions were measures necessary to protect the essential security interests of the United States, and therefore justified under Article XX, paragraph 1 (d). On this basis, the United States suggests, the order in which the issues are treated is a matter for the discretion of the Court.

37. The Court does not consider that the order in which the Articles of the 1956 Treaty were dealt with in the case concerning Military and Paramilitary Activities in and against Nicaragua was dictated by the economy of the Treaty; it was rather an instance of the Court's "freedom to select the ground upon which it will base its judgment" (Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62). In the present case, it appears to the Court that there are particular considerations militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1. It is clear that the original dispute between the Parties related to the legality of the actions of the United States, in the [p 181] light of international law on the use of force. At the time of those actions, neither Party made any mention of the 1955 Treaty. The contention of the United States at the time was that its attacks on the oil platforms were justified as acts of self-defence, in response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action to the Security Council under Article 51 of the United Nations Charter. Before the Court, it has continued to maintain that it was justified in acting as it did in exercise of the right of self-defence; it contends that, even if the Court were to find that its actions do not fall within the scope of Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and appropriate actions in self-defence.

38. Furthermore, as the United States itself recognizes in its Rejoinder, "The self-defense issues presented in this case raise matters of the highest importance to all members of the international community", and both Parties are agreed as to the importance of the implications of the case in the field of the use of force, even though they draw opposite conclusions from this observation. The Court therefore considers that, to the extent that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty authorizes it to examine and rule on such issues, it should do so.

39. The question of the relationship between self-defence and Article XX, paragraph 1 (d), of the Treaty has been disputed between the Parties, in particular as regards the jurisdiction of the Court. The United States emphasizes that the Court's jurisdiction in this case is limited, pursuant to Article XXI, paragraph 2, of the 1955 Treaty, to the interpretation and application of that Treaty, and does not extend directly to the determination of the legality of any action of either Party under general international law. It has contended that

"the Court need not address the question of self-defence . . . The scope of the exemption provided by Article XX, paragraph 1 (d), is not limited to those actions that would also meet the standards for self-defence under customary international law and the United Nations Charter."

It however does not contend that the Treaty exempts it, as between the parties, from the obligations of international law on the use of force, but simply that where a party justifies certain action on the basis of Article XX, paragraph 1 (d), that action has to be tested solely against the criteria of that Article, and the jurisdiction conferred on the Court by Article XXI, paragraph 2, of the Treaty goes no further than that.

40. In the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty, when providing therein that it should "not preclude the application of measures . . . necessary to protect [p 182] [the] essential security interests" of either party, intended that such should be the effect of the Treaty even where those measures involved a use of armed force; and if so, whether they contemplated, or assumed, a limitation that such use would have to comply with the conditions laid down by international law. In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court took the view that "action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI" -- the text in that case corresponding to Article XX of the 1955 Treaty -- "as 'necessary to protect' the 'essential security interests' of a party" (I.C.J. Reports 1986, p. 117, para. 224); and it cited an extract from the proceedings of the United States Senate Foreign Relations Committee tending to show that such had been the intentions of the Parties (ibid.). This approach is consistent with the view that, when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self-defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self-defence under international law.

41. It should not be overlooked that Article I of the 1955 Treaty, quoted in paragraph 31 above, declares that "There shall be firm and enduring peace and sincere friendship between the United States of America and Iran." The Court found in 1996 that this Article "is such as to throw light on the interpretation of the other Treaty provisions" (I.C.J. Reports 1996 (II), p. 815, para. 31). It is hardly consistent with Article I to interpret Article XX, paragraph 1 (d), to the effect that the "measures" there contemplated could include even an unlawful use of force by one party against the other. Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account "any relevant rules of international law applicable in the relations between the parties" (Article 31, paragraph 3 (c)). The Court cannot accept that Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.

42. The Court is therefore satisfied that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an [p 183] unlawful use of force, by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law. The Court would however emphasize that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties.

*
43. The Court will thus examine first the application of Article XX, paragraph 1 (d), of the 1955 Treaty, which in the circumstances of this case, as explained above, involves the principle of the prohibition in international law of the use of force, and the qualification to it constituted by the right of self-defence. On the basis of that provision, a party to the Treaty may be justified in taking certain measures which it considers to be "necessary" for the protection of its essential security interests. As the Court emphasized, in relation to the comparable provision of the 1956 USA/Nicaragua Treaty in the case concerning Military and Paramilitary Activities in and against Nicaragua, "the measures taken must not merely be such as tend to protect the essential
security interests of the party taking them, but must be 'necessary' for that purpose"; and whether a given measure is "necessary" is "not purely a question for the subjective judgment of the party" (I.C.J. Reports 1986, p. 141, para. 282), and may thus be assessed by the Court. In the present case, the question whether the measures taken were "necessary" overlaps with the question of their validity as acts of self-defence. As the Court observed in its decision of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence (see I.C.J. Reports 1986, p. 103, para. 194, and paragraph 74 below).

44. In this connection, the Court notes that it is not disputed between the Parties that neutral shipping in the Persian Gulf was caused considerable inconvenience and loss, and grave damage, during the Iran-Iraq war. It notes also that this was to a great extent due to the presence of mines and minefields laid by both sides. The Court has no jurisdiction to enquire into the question of the extent to which Iran and Iraq complied with the international legal rules of maritime warfare. It can however take note of these circumstances, regarded by the United States as relevant to its decision to take action against Iran which it considered necessary to protect its essential security interests. Nevertheless, the legality of the action taken by the United States has to be judged by reference to Article XX, paragraph 1 (d), of the 1955 Treaty, in the light of international law on the use of force in self-defence. [p 184]

45. The United States has never denied that its actions against the Iranian platforms amounted to a use of armed force. Some of the details of the attacks, so far as established by the material before the Court, may be pertinent to any assessment of the lawfulness of those actions. As already indicated, there were attacks on two successive occasions, on 19 October 1987 and on 18 April 1988. The Court will examine whether each of these met the conditions of Article XX, paragraph 1 (d), as interpreted by reference to the relevant rules of international law.

*
46. The first installation attacked, on 19 October 1987, was the Reshadat complex, which consisted of three drilling and production platforms -- R-3, R-4 and R-7 -- linked to a total of 27 oil wells. The crude oil produced by the R-3 platform was transported by submarine pipeline to the R-4 platform and thence, together with the crude oil produced by R-4, to the R-7 platform that accommodated both production facilities and living quarters. This latter platform was also connected by submarine pipeline to another complex, named Resalat, which consisted of three linked drilling and production platforms, referred to as R-1. All the crude oil produced at the Reshadat and Resalat complexes, after gas and water separation, was transported by undersea pipeline from the R-7 platform to Lavan Island. At the time of the United States attacks, these complexes were not producing oil due to damage inflicted by prior Iraqi attacks in October 1986, July 1987 and August 1987. Iran has maintained that repair work on the platforms was close to completion in October 1987. The United States has however challenged this assertion (see below, paragraphs 65 and 93).

47. On 19 October 1987, four destroyers of the United States Navy, together with naval support craft and aircraft, approached the Reshadat R-7 platform. Iranian personnel was warned by the United States forces via radio of the imminent attack and abandoned the facility. The United States forces then opened fire on the platform; a unit later boarded and searched it, and placed and detonated explosive charges on the remaining structure. The United States ships then proceeded to the R-4 platform, which was being evacuated; according to a report of a Pentagon spokesman, cited in the press and not denied by the United States, the attack on the R-4 platform had not been included in the original plan, but it was seen as a "target of opportunity". After having conducted reconnaissance fire and then having boarded and searched the platform, the United States forces placed and detonated explosive charges on this second installation. As a result of the attack, the R-7 platform was almost completely destroyed and the R-4 platform was severely damaged. While the attack was made solely on the Reshadat complex, it affected also the [p 185] operation of the Resalat complex. Iran states that production from the Reshadat and Resalat complexes was interrupted for several years.

48. The nature of this attack, and its alleged justification, was presented by the United States to the United Nations Security Council in the following terms (letter from the United States Permanent Representative of 19 October 1987, S/19219):

"In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that United States forces have exercised the inherent right of self-defence under international law by taking defensive action in response to attacks by the Islamic Republic of Iran against United States vessels in the Persian Gulf.

At approximately 11 p.m. Eastern Daylight Time on 16 October 1987, a Silkworm missile fired by Iranian forces from Iranian-occupied Iraqi territory struck the Sea Isle City, a United States flag vessel, in the territorial waters of Kuwait. This is the latest in a series of such missile attacks against United States flag and other non-belligerent vessels in Kuwaiti waters in pursuit of peaceful commerce. These actions are, moreover, only the latest in a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation.

At approximately 7 a.m. Eastern Daylight Time on 19 October 1987, United States naval vessels destroyed the Iranian military ocean platform at Rashadat [sic] (also known as Rostam) in international waters of the Persian Gulf. The military forces stationed on this platform have engaged in a variety of actions directed against United States flag and other non-belligerent vessels and aircraft. They have monitored the movements of United States convoys by radar and other means; co-ordinated minelaying in the path of our convoys; assisted small-boat attacks against other non-belligerent shipping; and fired at United States military helicopters, as occurred on 8 October 1987. Prior warning was given to permit the evacuation of the platform."

49. In its Counter-Memorial, the United States linked its previous invocation of the right of self-defence with the application of Article XX, paragraph 1 (d), of the 1955 Treaty. It argued that Iranian actions during the relevant period constituted a threat to essential security interests of the United States, inasmuch as the flow of maritime commerce in the [p 186] Persian Gulf was threatened by Iran's repeated attacks on neutral vessels; that the lives of United States nationals were put at risk; that United States naval vessels were seriously impeded in their security duties; and that the United States Government and United States nationals suffered severe financial losses. According to the United States, it was clear that diplomatic measures were not a viable means of deterring Iran from its attacks: "Accordingly, armed action in self-defense was the only option left to the United States to prevent additional Iranian attacks".

50. The Court will thus first concentrate on the facts tending to show the validity or otherwise of the claim to exercise the right of self-defence. In its communication to the Security Council, cited above, the United States based this claim on the existence of

"a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation";

it referred in particular to a missile attack on the Sea Isle City as being the specific incident that led to the attack on the Iranian platforms. Before the Court, it has based itself more specifically on the attack on the Sea Isle City, but has continued to assert the relevance of the other attacks (see paragraph 62 below). To justify its choice of the platforms as target, the United States asserted that they had "engaged in a variety of actions directed against United States flag and other non-belligerent vessels and aircraft". Iran has denied any responsibility for (in particular) the attack on the Sea Isle City, and has claimed that the platforms had no military purpose, and were not engaged in any military activity.

51. Despite having thus referred to attacks on vessels and aircraft of other nationalities, the United States has not claimed to have been exercising collective self-defence on behalf of the neutral States engaged in shipping in the Persian Gulf; this would have required the existence of a request made to the United States "by the State which regards itself as the victim of an armed attack" (I.C.J. Reports 1986, p. 105, para. 199). Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature [p 187] as to be qualified as "armed attacks" within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force. As the Court observed in the case concerning Military and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish "the most grave forms of the use of force (those constituting an armed attack) from other less grave forms" (I.C.J. Reports 1986, p. 101, para. 191), since "In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack" (ibid., p. 103, para. 195). The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defence.

52. Since it was the missile attack on the Sea Isle City that figured most prominently in the United States contentions, the Court will first examine in detail the evidence relating to that incident. The Sea Isle City was a Kuwaiti tanker reflagged to the United States; on 16 October 1987 it had just ended a voyage under "Operation Earnest Will" (see paragraph 24 above), when it was hit by a missile near Kuwait's Al-Ahmadi Sea Island (or Mina al-Ahmadi) terminal. This incident, which caused damage to the ship and injury to six crew members, was claimed by the United States to be the seventh involving Iranian anti-ship cruise missiles in the area in the course of 1987. The United States asserts that the missile that struck the Sea Isle City was launched by Iran from a facility located in the Fao area. It recalls that in February 1986 Iran had taken control of a large part of the Fao peninsula and had captured three formerly Iraqi missile sites in the area, which it held at the time of the attack. It also maintains that there was an additional active cruise missile staging facility on Iranian territory near the Fao peninsula.

53. The evidence produced by the United States includes images, taken by satellite or aerial reconnaissance aircraft, of the Fao area and of the four alleged missile sites under Iranian control at the time of the attack, as well as a complementary expert report describing and examining this imagery. Although the United States has indicated that it was unable to recover and examine fragments of the specific missile that hit the Sea Isle City, it has produced, in the present proceedings, a statement by an independent expert, dated 27 March 1997, based on a previous examination by United States military analysts of fragments retrieved from other similar incidents in early 1987. That evidence shows, in the United States submission, that the specific missile was a land-launched HY-2 cruise missile of Chinese manufacture (also known as the "Silkworm" missile). The United States has also produced the testimony, dated 21 May 1997, of two Kuwaiti officers, to the effect that military personnel stationed on Kuwaiti islands had witnessed, in January, September and October 1987, the launching of six missiles from Iranian-controlled territory in the Fao area; in addition, one of [p 188] these officers asserts that he personally observed the path of the missile that struck the Sea Isle City on 16 October 1987.
54. Iran suggests that no credible evidence has been produced that there were operational Iranian missile sites in the Fao area; it acknowledges that it had captured three Iraqi missile sites in 1986, but these "were heavily damaged during the fighting with Iraq" and "were inoperative throughout the period that Iranian forces held Fao". It therefore denies that the missile that struck the Sea Isle City was launched from those sites, or from an additional Iranian Silkworm missile site that the United States claims to have identified in the area, the existence of which Iran denies. Iran observes that the satellite images produced by the United States are not very clear, and appeals to its own experts' opinion to prove that the installations shown therein "bear no resemblance to a normal Silkworm missile site". Moreover, according to Iran, other United States evidence would show that, at the time of the attack, Iran had operative missile sites only in the Strait of Hormuz. Iran maintains that the statement of Kuwaiti officers produced by the United States is unconvincing since it is largely based on hearsay and is in part inconsistent.

55. Iran also suggests the alternative theory that the missile that hit the Sea Isle City was fired by Iraq, which, it contends, had both the appropriate missile capabilities, and an interest in internationalizing the conflict with Iran. According to Iran, the missile could have been launched by Iraq either from an aircraft, from a naval vessel or from an "operational missile site located at a position on Fao just to the west of areas occupied by Iran". Iran alleges that, while the maximum range of the standard HY-2 (Silkworm) missile is 95 km, Iraq was in possession of modified versions of that missile that could cover ranges up to 150 or even 200 km. Moreover, according to an expert report produced by Iran, a missile of this kind does not necessarily travel in a straight line and could have been heading in the direction observed by the witnesses invoked by the United States even if it had not been launched from Iranian-held territory in the Fao area.
56. The United States claims that its satellite imagery shows that there was no Iraqi missile launching facility in the Fao area at the time. It also affirms, on the basis of an independent expert's opinion, that HY-2 missiles are not equipped with a system capable of guiding them along a circuitous path, as contended by Iran. Finally, the United States rejects the Iranian theory that the missile was launched from air or sea, both because the fragments of missiles launched against Kuwaiti territory at the same period indicated a land-launched missile, and because United States AWACS radar planes did not detect any Iraqi military aircraft aloft in the northern Persian Gulf at the time of the attacks. [p 159]

57. For present purposes, the Court has simply to determine whether the United States has demonstrated that it was the victim of an "armed attack" by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such an attack rests on the United States. The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence available is insufficient to establish that the missile was fired by Iran, then the necessary burden of proof has not been discharged by the United States.

58. As noted above, the United States claims that the missile that struck the Sea Isle City was a ground-launched HY-2 anti-ship missile of the type known as the "Silkworm", but it has not been able to produce physical evidence of this, for example in the form of recovered fragments of the missile. The Court will however examine the other evidence on the hypothesis that the missile was of this type. The United States contends that the missile was fired from Iranian-held territory in the Fao area, and it has offered satellite pictures and expert evidence to show that there was, at the time, Iranian missile-firing equipment present there. Even with the assistance of the expert reports offered by both Parties, the Court does not however find the satellite images sufficiently clear to establish this point. The evidence that the particular missile came from the Fao direction is the testimony, mentioned above, of a Kuwaiti military officer, who claims to have observed the flight of the missile overhead, and thus to be able to identify the approximate bearing on which it was travelling. However, this testimony was given ten years after the reported events; and the officer does not state that he observed the launch of the missile (and the alleged firing point was too remote for this to have been possible), nor that he saw the missile strike the Sea Isle City, but merely that he saw a missile passing "overhead", and that that vessel was struck by a missile "minutes later". In sum, the witness evidence cannot be relied upon. Furthermore, the Court notes that there is a discrepancy between the English and Arabic texts of the statement produced before the Court, both of which were signed by the witness; the Arabic version lacks any indication of the bearing on which the observed missile was travelling.

59. There is a conflict of evidence between the Parties as to the characteristics of the Silkworm missile, in particular its maximum range, and whether or not when fired it always follows a straight-line course. According to the United States, the maximum range of the missile is of the order of 105 km, and this type of missile always follows a straight course until it approaches its objective, when its on-board guidance equipment causes it to lock on to a target which may be up to 12 degrees on either side of its course. Iran however contends that the missile may also be set to follow either a curved or dog-leg path, and that its maximum range is less, 95 km at the most. The Court does not consider that it is necessary for it [p 190] to decide between the conflicting expert testimony. It appears that at the time different models of the missile existed, with differing programming characteristics and maximum ranges. There is however no direct evidence at all of the type of missile that struck the Sea Isle City; the evidence as to the nature of other missiles fired at Kuwaiti territory at this period is suggestive, but no more. In considering whether the United States has discharged the burden of proof that Iranian forces fired the missile that struck the Sea Isle City, the Court must take note of this deficiency in the evidence available.

60. In connection with its contention that the Sea Isle City was the victim of an attack by Iran, the United States has referred to an announcement by President Ali Khameini of Iran some three months earlier, indicating that Iran would attack the United States if it did not "leave the region". This however is evidently not sufficient to justify the conclusion that any subsequent attack on the United States in the Persian Gulf was indeed the work of Iran. The United States also observes that, at the time, Iran was blamed for the attack by "Lloyd's Maritime Information Service, the General Council of British Shipping, Jane's Intelligence Review and other authoritative public sources". These "public sources" are by definition secondary evidence; and the Court has no indication of what was the original source, or sources, or evidence on which the public sources relied. In this respect the Court would recall the caveat it included in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, that "Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source." (I.C.J. Reports 1986, p. 41, para. 63.)

61. In short, the Court has examined with great care the evidence and arguments presented on each side, and finds that the evidence indicative of Iranian responsibility for the attack on the Sea Isle City is not sufficient to support the contentions of the United States. The conclusion to which the Court has come on this aspect of the case is thus that the burden of proof of the existence of an armed attack by Iran on the United States, in the form of the missile attack on the Sea Isle City, has not been discharged.

62. In its notification to the Security Council, and before the Court, the United States has however not relied solely on the Sea Isle City incident as constituting the "armed attack" to which the United States claimed to be responding. It asserted that that incident was "the latest in a series of such missile attacks against United States flag and other non-belligerent vessels in Kuwaiti waters in pursuit of peaceful commerce" and that [p 191]

"These actions are, moreover, only the latest in a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation." (See paragraph 48 above.)

Before the Court, it has contended that the missile attack on the Sea Isle City was itself an armed attack giving rise to the right of self-defence; the alleged pattern of Iranian use of force, it is said, "added to the gravity of the specific attacks, reinforced the necessity of action in self-defense, and helped to shape the appropriate response".

63. The United States relies on the following incidents involving United States flagged, or United States owned, vessels and aircraft, in the period up to 19 October 1987, and attributes them to Iranian action: the mining of the United States-flagged Bridgeton on 24 July 1987, the mining of the United States-owned Texaco Caribbean on 10 August 1987; and firing on United States Navy helicopters by Iranian gunboats, and from the Reshadat oil platform, on 8 October 1987. The United States also claims to have detected and boarded an Iranian vessel, the Iran Ajr, in the act of laying mines in international waters some 50 nautical miles north-east of Bahrain, in the vicinity of the entrance to Bahrain's deep-water shipping channel. Iran has denied any responsibility for the mining of the Bridgeton and the Texaco Caribbean; as regards the Iran Ajr, Iran has admitted that the vessel was carrying mines, but denies that they were being laid at the time it was boarded, and claims that its only mission was to transport them by a secure route to a quite different area.

64. On the hypothesis that all the incidents complained of are to be attributed to Iran, and thus setting aside the question, examined above, of attribution to Iran of the specific attack on the Sea Isle City, the question is whether that attack, either in itself or in combination with the rest of the "series of . . . attacks" cited by the United States can be categorized as an "armed attack" on the United States justifying self-defence. The Court notes first that the Sea Isle City was in Kuwaiti waters at the time of the attack on it, and that a Silkworm missile fired from (it is alleged) more than 100 km away could not have been aimed at the specific vessel, but simply programmed to hit some target in Kuwaiti waters. Secondly, the Texaco Caribbean, whatever its ownership, was not flying a United States flag, so that an attack on the vessel is not in itself to be equated with an attack on that State. As regards the alleged firing on United States helicopters from Iranian gunboats and from the Reshadat [p 192] oil platform, no persuasive evidence has been supplied to support this allegation. There is no evidence that the minelaying alleged to have been carried out by the Iran Ajr, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and similarly it has not been established that the mine struck by the Bridgeton was laid with the specific intention of harming that ship, or other United States vessels. Even taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a "most grave" form of the use of force (see paragraph 51 above).

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65. The second occasion on which Iranian oil installations were attacked was on 18 April 1988, with the action against the Salman and Nasr complexes. The Salman offshore oil complex consisted of seven interconnected platforms, including one drilling and two production platforms. Oil extracted from 21 wells was transported by submarine pipeline to this complex, and then on to Lavan Island after initial water and gas separation. This complex had been attacked by Iraq in October and November 1986, and was still undergoing repairs in April 1988; by that time, according to Iran, the works were "virtually completed", but the United States questions this. The Nasr complex comprised one central platform, one flaring point, and six oil producing platforms grouped around the central platform, served by 44 wells in the Sirri field and four wells in the Nosrat field. Crude oil from all these wells was transported by submarine pipeline to the central platform, and from there to Sirri Island. This complex was functioning normally in April 1988.

66. United States naval forces attacked the Salman and Nasr complexes on 18 April 1988. Two destroyers and a supply ship were involved in the attack on the Salman complex: shortly before 8 a.m., local time, the United States forces warned the personnel on the platforms that the attack was due to begin; some of them began to evacuate the installation, while others opened fire. A few minutes later, shelling on the complex commenced from United States ships, warplanes and helicopters. United States forces then boarded some of the platforms (but not that containing the control centre), and placed and detonated explosives. Iran states that the attack caused severe damage to the production facilities of the platforms, and that the activities of the Salman complex were totally interrupted for four years, its regular production being resumed only in September 1992, and reaching a normal level in 1993.

The central platform of the Nasr complex was attacked at around 8.15 a.m. by three United States warships and a number of helicopters. After having been warned of the imminent military action, Iranian personnel evacuated the platform. The United States forces bombarded the installation and almost completely destroyed it; the platform was not boarded, since it was considered unsafe due to secondary explosions and fire. According to Iranian accounts, activities in the whole Nasr complex (including oil production and water injection) were interrupted as a consequence of the attack and did not resume until nearly four years later.

67. The nature of the attacks on the Salman and Nasr complexes, and their alleged justification, was presented by the United States to the United Nations Security Council in the following terms (letter from the United States Permanent Representative of 18 April 1988, S/19791):
"In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that United States forces have exercised their inherent right of self-defence under international law by taking defensive action in response to an attack by the Islamic Republic of Iran against a United States naval vessel in international waters of the Persian Gulf. The actions taken are necessary and are proportionate to the threat posed by such hostile Iranian actions.

At approximately 1010 Eastern Daylight Time on 14 April the USS Samuel B. Roberts was struck by a mine approximately 60 miles east of Bahrain, in international waters. Ten U.S. sailors were injured, one seriously, and the ship was damaged. The mine which struck the Roberts was one of at least four mines laid in this area. The United States has subsequently identified the mines by type, and we have conclusive evidence that these mines were manufactured recently in Iran. The mines were laid in shipping lanes known by Iran to be used by U.S. vessels, and intended by them to damage or sink such vessels. This is but the latest in a series of offensive attacks and provocations Iranian naval forces have taken against neutral shipping in the international waters of the Persian Gulf.

Through diplomatic channels, the United States has informed the Government of the Islamic Republic of Iran on four separate occasions, most recently 19 October 1987, that the United States would not accept Iran's minelaying in international waters or in the waters [p 194] of neutral States. In October, my Government indicated that the United States did not seek a military confrontation with Iran, but that it would take appropriate defensive measures against such hostile actions.

Starting at approximately 0100 Eastern Daylight Time 18 April U.S. forces attacked military targets in the Persian Gulf which have been used for attacks against non-belligerent shipping in international waterways of the Gulf.

The U.S. actions have been against legitimate military targets. All feasible measures have been taken to minimize the risk of civilian damage or casualties . . ."

68. The Court notes that the attacks on the Salman and Nasr platforms were not an isolated operation, aimed simply at the oil installations, as had been the case with the attacks of 19 October 1987; they formed part of a much more extensive military action, designated "Operation Praying Mantis", conducted by the United States against what it regarded as "legitimate military targets"; armed force was used, and damage done to a number of targets, including the destruction of two Iranian frigates and other Iranian naval vessels and aircraft.

69. The USS Samuel B. Roberts was a warship returning to Bahrain on 14 April 1988, after escorting a convoy of United States-flagged merchant ships in the context of "Operation Earnest Will", when it hit a mine near Shah Allum Shoal in the central Persian Gulf. The United States reports that, in the days following the attack, Belgian and Dutch mine-clearing forces and its own navy discovered several mines bearing Iranian serial numbers in the vicinity and it concludes therefore that the mine struck by the USS Samuel B. Roberts was laid by Iran. It also adduces other discoveries of Iranian mining activities at the time (including the boarding by United States forces of the Iranian vessel Iran Ajr, said to have been caught in the act of laying mines, referred to in paragraph 63 above), contemporary statements by Iranian military leaders and conclusions of the international shipping community (see paragraph 60 above), all allegedly demonstrating that Iran made a general practice of using mines to attack neutral shipping.

70. Iran denies that it had systematic recourse to minelaying in the Persian Gulf and suggests that evidence produced by the United States is unpersuasive. Furthermore, it contends that the United States has submitted no independent evidence that the laying of the mine that hit the [p 195] USS Samuel B. Roberts is attributable to Iran. Iran also suggests that the mine may have been laid by Iraq, a hypothesis that the United States rejects.

71. As in the case of the attack on the Sea Isle City, the first question is whether the United States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine laid by Iran. The Court notes that mines were being laid at the time by both belligerents in the Iran-Iraq war, so that evidence of other minelaying operations by Iran is not conclusive as to responsibility of Iran for this particular mine. In its communication to the Security Council in connection with the attack of 18 April 1988, the United States alleged that "The mines were laid in shipping lanes known by Iran to be used by U.S. vessels, and intended by them to damage or sink such vessels" (paragraph 67 above). Iran has claimed that it laid mines only for defensive purposes in the Khor Abdullah Channel, but the United States has submitted evidence suggesting that Iran's mining operations were more extensive. The main evidence that the mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of moored mines in the same area, bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel Iran Ajr (see paragraph 63 above). This evidence is highly suggestive, but not conclusive.

72. The Court notes further that, as on the occasion of the earlier attack on oil platforms, the United States in its communication to the Security Council claimed to have been exercising the right of self-defence in response to the "attack" on the USS Samuel B. Roberts, linking it also with "a series of offensive attacks and provocations Iranian naval forces have taken against neutral shipping in the international waters of the Persian Gulf" (paragraph 67 above). Before the Court, it has contended, as in the case of the missile attack on the Sea Isle City, that the mining was itself an armed attack giving rise to the right of self-defence and that the alleged pattern of Iranian use of force "added to the gravity of the specific attacks, reinforced the necessity of action in self-defense, and helped to shape the appropriate response" (see paragraph 62 above). No attacks on United States-flagged vessels (as distinct from United States-owned vessels), additional to those cited as justification for the earlier attacks on the Reshadat platforms, have been brought to the Court's attention, other than the mining of the USS Samuel B. Roberts itself. The question is therefore whether that incident sufficed in itself to justify action in self-defence, as amounting to an "armed attack". The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the "inherent right of self-defence"; but in view of all the circumstances, including the inconclusiveness of the evidence of Iran's responsibility for the mining of the USS Samuel B. Roberts, the [p 196] Court is unable to hold that the attacks on the Salman and Nasr platforms have been shown to have been justifiably made in response to an "armed attack" on the United States by Iran, in the form of the mining of the USS Samuel B. Roberts.

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73. As noted above (paragraph 43), in the present case a question of whether certain action is "necessary" arises both as an element of international law relating to self-defence and on the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted, whereby the Treaty does "not preclude . . . measures . . . necessary to protect [the] essential security interests" of either party. In this latter respect, the United States claims that it considered in good faith that the attacks on the platforms were necessary to protect its essential security interests, and suggests that "A measure of discretion should be afforded to a party's good faith application of measures to protect its essential security interests". Iran was prepared to recognize some of the interests referred to by the United States -- the safety of United States vessels and crew, and the uninterrupted flow of maritime commerce in the Persian Gulf -- as being reasonable security interests of the United States, but denied that the United States actions against the platforms could be regarded as "necessary" to protect those interests. The Court does not however have to decide whether the United States interpretation of Article XX, paragraph 1 (d), on this point is correct, since the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any "measure of discretion". The Court will therefore turn to the criteria of necessity and proportionality in the context of international law on self-defence.

74. In its decision in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court endorsed the shared view of the parties to that case that in customary law "whether the response to the [armed] attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence" (I.C.J. Reports 1986, p. 103, para. 194). One aspect of these criteria is the nature of the target of the force used avowedly in self-defence. In its communications to the Security Council, in particular in that of 19 October 1987 (paragraph 46 above), the United States indicated the grounds on [p 197] which it regarded the Iranian platforms as legitimate targets for an armed action in self-defence. In the present proceedings, the United States has continued to maintain that they were such, and has presented evidence directed to showing that the platforms collected and reported intelligence concerning passing vessels, acted as a military communication link co-ordinating Iranian naval forces and served as actual staging bases to launch helicopter and small boat attacks on neutral commercial shipping. The United States has referred to documents and materials found by its forces aboard the vessel Iran Ajr (see paragraph 63 above), allegedly establishing that the Reshadat platforms served as military communication facilities. It has also affirmed that the international shipping community at the time was aware of the military use of the platforms, as confirmed by the costly steps commercial vessels took to avoid them, and by various witness reports describing Iranian attacks. The United States has also submitted expert analysis of the conditions and circumstances surrounding these attacks, examining their pattern and location in the light of the equipment at Iran's disposal. Finally, the United States has produced a number of documents, found on the Reshadat complex when it was attacked, allegedly corroborating the platforms' military function. In particular, it contends that these documents prove that the Reshadat platforms had monitored the movements of the Sea Isle City on 8 August 1987. On the other hand, the forces that attacked the Salman and Nasr complexes were not able to board the platforms containing the control centres, and did not therefore seize any material (if indeed such existed) tending to show the use of those complexes for military purposes.
75. Iran recognizes the presence of limited military personnel and equipment on the Reshadat platforms, but insists that their purpose was exclusively defensive and justified by previous Iraqi attacks on its oil production facilities. Iran further challenges the evidence adduced by the United States in this regard. It alleges that documents found aboard the Iran Ajr and the Reshadat platforms are read out of their proper context, incorrectly translated and actually consistent with the platforms' purely defensive role; and that military expert analysis relied on by the United States is hypothetical and contradictory. Iran asserts further that reports and testimony referred to by the United States are mostly non-specific about the use of the platforms as staging bases to launch attacks, and that the equipment at its disposal could be used from mainland and offshore islands, without any need to have recourse to the platforms.[p 198]

76. The Court is not sufficiently convinced that the evidence available supports the contentions of the United States as to the significance of the military presence and activity on the Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman and Nasr complexes. However, even accepting those contentions, for the purposes of discussion, the Court is unable to hold that the attacks made on the platforms could have been justified as acts of self-defence. The conditions for the exercise of the right of self-defence are well settled: as the Court observed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, "The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law" (I.C.J. Reports 1996 (I), p. 245, para. 41); and in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court referred to a specific rule "whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it" as "a rule well established in customary international law" (I.C.J. Reports 1986, p. 94, para. 176). In the case both of the attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not satisfied that the attacks on the platforms were necessary to respond to these incidents. In this connection, the Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act. The Court would also observe that in the case of the attack of 19 October 1987, the United States forces attacked the R-4 platform as a "target of opportunity", not one previously identified as an appropriate military target (see paragraph 47 above).

77. As to the requirement of proportionality, the attack of 19 October 1987 might, had the Court found that it was necessary in response to the Sea Isle City incident as an armed attack committed by Iran, have been considered proportionate. In the case of the attacks of 18 April 1988, however, they were conceived and executed as part of a more extensive operation entitled "Operation Praying Mantis" (see paragraph 68 above). The question of the lawfulness of other aspects of that operation is not before the Court, since it is solely the action against the Salman and Nasr complexes that is presented as a breach of the 1955 Treaty; but the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation, which involved, inter alia, the destruction of two Iranian frigates and a number of other naval vessels and aircraft. As a response to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither "Operation Praying Mantis" as a whole, nor even that [p 199] part of it that destroyed the Salman and Nasr platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self-defence.

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78. The Court thus concludes from the foregoing that the actions carried out by United States forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defence, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the Treaty.

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79. Having satisfied itself that the United States may not rely, in the circumstances of the case, on the defence to the claim of Iran afforded by Article XX, paragraph 1 (d), of the 1955 Treaty, the Court has now to turn to that claim, made under Article X, paragraph 1, of that Treaty, which provides that "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation." In that respect, Iran's submission is that "in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity . . .". It contends that the United States attacks on the oil platforms were directed against commercial facilities that were protected by Article X, paragraph 1, that they "impeded the normal functioning of the oil platforms and that they even resulted in the complete interruption of the platforms' activities, . . . thus preventing gravely ab ovo the possibility for Iran to enjoy freedom of commerce as guaranteed by" that Article.

80. As noted above (paragraph 31), in its Judgment of 12 December 1996 on the preliminary objection of the United States, the Court had occasion, for the purposes of ascertaining and defining the scope of its jurisdiction, to interpret a number of provisions of the 1955 Treaty, including Article X, paragraph 1. It noted that the Applicant had not alleged that any military action had affected its freedom of navigation, so that the only question to be decided was "whether the actions of the United States complained of by Iran had the potential to affect 'freedom of commerce'" as guaranteed by that provision (I.C.J.[p 200] Reports 1996 (II), p. 817, para. 38). The Court also rejected the view, advanced by the United States, that the word "commerce" in Article X, paragraph 1, is confined to maritime commerce (ibid., para. 43). After examining the contentions of the Parties as to the meaning of the word, the Court concluded that


"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" (ibid., p. 819, para. 49).

81. In 1996 the Court was concerned only to resolve the questions of its jurisdiction raised by the preliminary objection presented by the United States. For that purpose, it was not called upon to decide whether the actions of the United States did in fact interfere with freedom of commerce between the territories of the Parties, but only whether, as stated in the Judgment, the lawfulness of those actions could be evaluated in relation to Article X, paragraph 1 (I.C.J. Reports 1996 (II), p. 820, para. 51). It has been suggested by the United States in its written pleadings that that Article does not in fact create specific legal obligations relevant to Iran's claims, but is merely an "aspirational" provision, but this view, which the United States did not press during the oral proceedings, does not seem to the Court to be consistent either with the structure of the 1955 Treaty or with the Court's 1996 Judgment.

82. In that decision, the Court observed that it did not then have to enter into the question whether Article X, paragraph 1, "is restricted to commerce 'between' the Parties" (I.C.J. Reports 1996 (II), p. 817, para. 44). However it is now common ground between the Parties that that provision is in terms limited to the protection of freedom of commerce "between the territories of the two High Contracting Parties". The Court observes that it is oil exports from Iran to the United States that are relevant to the case, not such exports in general. The United States has argued that for the purpose of interpreting Article X, paragraph 1, what must be considered is whether oil from the specific platforms attacked was, or would have been, exported to the United States. In this connection it questions whether the platforms could be said to be on the "territory" of Iran, inasmuch as they are outside Iran's territorial sea, though upon its continental shelf, and within its exclusive economic zone. The Court does not however consider tenable an interpretation of the 1955 Treaty that would have differentiated, for the purposes of "freedom of commerce", between oil produced on the land territory or the territorial sea of Iran, and oil produced on its continental shelf, in the exercise of its sovereign rights of exploration and exploitation of the shelf, and parallel rights over the exclusive economic zone. [p 201]

83. In the 1996 Judgment, the Court further emphasized that "Article X, paragraph 1, of the Treaty of 1955 does not strictly speaking protect 'commerce' but 'freedom of commerce'", and continued:

"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 storage with a view to export" (ibid., p. 819, para. 50).

The Court also noted that

"Iran's oil production, a vital part of that country's economy, constitutes an important component of its foreign trade.

On the material now before the Court, it is . . . not able to determine if and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade in Iranian oil . . ." (ibid., p. 820, para. 51).



If, at the present stage of the proceedings, the Court were to find that Iran had established that
such was the case, the claim of Iran under Article X, paragraph 1, could be upheld.

84. The arguments of the Parties in relation to Iran's claim under that provision have therefore focussed on the first and last stages of the production/export process. In order to establish that freedom of commerce in oil between the territories of the Parties was affected by the attack, so that the destruction of the platforms constituted a breach of Article X, paragraph 1, Iran has sought to show that oil produced or processed by, stored on, or transported from the platforms attacked could, to some degree, have been exported to the United States, but this was prevented by the destruction of the platforms. This has involved explanation of the construction and operation of the platforms, and assessment of the implications of the damage caused to them by the attacks. The question has also been raised as to whether there was an impact on overall oil exports to the United States, contemporaneous with, and attributable to the attacks, or a potential impact of this kind, amounting to an interference with "freedom" of commerce between the Parties' territories.

85. Before turning to the facts and to the details of Iran's claim, the Court will mention one consideration advanced by the United States which, if upheld, would render unnecessary any further examination of the effects of the attacks on the platforms. The United States alleges, as has already been noted in connection with its argument founded on self-defence, that military forces were stationed on the platforms and played a role in the attacks, attributable to Iran, on United States vessels and other neutral shipping (see for example the communication from the United States to the United Nations Security Council of 19 October 1987, quoted in paragraph 48 above). On this basis, the United States [p 202] argues that the guarantee of "freedom of commerce" under Article X, paragraph 1, of the 1955 Treaty cannot have been intended to shield one party's military activities against the other, and that therefore the coverage of that Article cannot be extended to the platforms in question. The United States has not succeeded, to the satisfaction of the Court, in establishing that the limited military presence on the platforms, and the evidence as to communications to and from them, could be regarded as justifying treating the platforms as military installations (see paragraph 76 above). For the same reason, the Court is unable to regard them as outside the protection afforded by Article X, paragraph 1, of the 1955 Treaty.

86. Iran's initial claim that the attacks violated Article X, paragraph 1, was based on the contention that "they destroyed important petroleum installations used by Iran for the commercial exploitation of its natural resources", and that "fundamental economic and commercial activities including oil production, storage and transportation were affected". The Court in its 1996 Judgment contemplated the possibility that freedom of commerce could be impeded not only by "the destruction of goods destined to be exported", but also by acts "capable of affecting their transport and their storage with a view to export" (I.C.J. Reports 1996 (II), p. 819, para. 50). In the view of the Court, the activities of the platforms are to be regarded, in general, as commercial in nature; it does not, however, necessarily follow that any interference with such activities involves an impact on the freedom of commerce between the territories of Iran and the United States.

87. As regards the first of these categories of activity, "acts entailing the destruction of goods destined to be exported", the United States observes, first, that the attacks on the platforms did not destroy any oil as such; and secondly that in any event the platforms were not engaged in producing goods destined for export. It explains that the oil extracted by the platforms attacked was not in a form capable of being exported, either when it came on to or when it left the platforms, since to transform it into a product capable of being safely exported it was necessary to subject it to extensive processing, involving the extraction of gas, hydrogen sulphide and water. Iran however suggests that the question is not whether the oil was capable of being safely exported, but whether it was a good destined for export; in addition, it observes that equipment required for an initial processing of the oil extracted was situated on the platforms and destroyed with them by the United States attacks. It does not however contend that that initial processing rendered the oil capable of being safely exported.

88. The Court also included in the category of acts interfering with freedom of commerce "acts . . . capable of affecting [the] transport and storage with a view to export" of goods destined to be exported. No storage of oil was effected on the platforms; as regards transport, the Court noted in 1996 that

"the oil pumped from the platforms attacked in October 1987 passed from there by subsea line to the oil terminal on Lavan Island and that the Salman complex, object of the attack of April 1988, was also connected to the oil terminal on Lavan Island by subsea line" (I.C.J. Reports 1996 (II), pp. 819-820, para. 50).

Similarly, the Nasr central platform served as a crude oil collecting point for transfer by pipeline to Sirri Island. An act interfering with these subsea lines would therefore prima facie have been an interference with the transport of goods mainly destined for export; but according to the United States the attacks on the platforms did not in fact damage the subsea lines, but only the portions of the platform above the waterline. An attempt was made by the United States Navy to destroy the power generation platform of the Salman complex, and if this had been successful it would, according to Iran, have destroyed the equipment necessary for the transport of oil to Lavan Island, but the explosives placed failed to detonate.

89. The Court notes that the conclusion which the United States is inviting the Court to reach is, in effect, that military attacks on installations used for commercial oil exploitation, which caused -- and were intended to cause -- very considerable damage to those installations, proved to be limited in their effects to the extent necessary to avoid a breach of a specific commercial treaty. Yet the Court notes also that there is no evidence that the relevant military orders were devised with this outcome in mind, or even that the existence and scope of the treaty was taken into account at all at the time of the attacks. However that may be, the Court considers that where a State destroys another State's means of production and transport of goods destined for export, or means ancillary or pertaining to such production or transport, there is in principle an interference with the freedom of international commerce. In destroying the platforms, whose function, taken as a whole, was precisely to produce and transport oil, the military actions made commerce in oil, at that time and from that source, impossible, and to that extent prejudiced freedom of commerce. While the oil, when it left the platform complexes, was not yet in a state to be safely exported, the fact remains that it could be already at that stage destined for export, and the destruction of the platform prevented further treatment necessary for export. The Court therefore finds that the protection of freedom of commerce under Article X, paragraph 1, of the 1955 Treaty applied to the platforms attacked by the United States, and the attacks thus impeded Iran's freedom of commerce. However, the question remains whether there was in [p 204] this case an interference with freedom of commerce "between the territories of the High Contracting Parties".

*
90. The United States in fact contends further that there was in any event no breach of Article X, paragraph 1, inasmuch as, even assuming that the attacks caused some interference with freedom of commerce, it did not interfere with freedom of commerce "between the territories of the two High Contracting Parties". First, as regards the attack of 19 October 1987 on the Reshadat platforms, it observes that the platforms were under repair as a result of an earlier attack on them by Iraq; consequently, they were not engaged in, or contributing to, commerce between the territories of the Parties. Secondly, as regards the attack of 18 April 1988 on the Salman and Nasr platforms, it draws attention to United States Executive Order 12613, signed by President Reagan on 29 October 1987, which prohibited, with immediate effect, the import into the United States of most goods (including oil) and services of Iranian origin. As a consequence of the embargo imposed by this Order, there was, it is suggested, no commerce between the territories of the Parties that could be affected, and consequently no breach of the Treaty protecting it.

91. As the Court noted in its 1996 Judgment, it was then not contested between the Parties (and is not now contested) that "oil exports from Iran to the United States were -- to some degree -- ongoing at least until after the destruction of the first set of oil platforms", i.e., 19 October 1987 (I.C.J. Reports 1996 (II), p. 818, para. 44). It appears also to be accepted by both Parties that the oil or petroleum products reaching the United States during this period were to some extent derived from crude oil produced by the platforms that were later subjected to attack. Iran has explained that in peace time it had sold crude oil in cargoes where the producing field was specifically identified, but during the Iran-Iraq war all Iranian light crudes and heavy crudes were mixed and sold generically, as either "Iranian light" or "Iranian heavy". Iran has asserted, and the United States has not denied, that there was a market for Iranian crude oil directly imported into the United States up to the issuance of Executive Order 12613 of 29 October 1987. Thus Iranian oil exports did up to that time constitute the subject of "commerce between the territories of the High Contracting Parties" within the meaning of Article X, paragraph 1, of the 1955 Treaty.

92. At the time of the attack of 19 October 1987 no oil whatsoever was being produced or processed by the Reshadat and Resalat platforms, [p 205] since these had been put out of commission by earlier Iraqi attacks. While it is true that the attacks caused a major setback to the process of bringing the platforms back into production, there was at the moment of the attacks on these platforms no ongoing commerce in oil produced or processed by them. Iran however indicates that at the time of the attack the platforms were nearly repaired and were about to resume production; it argues that there was therefore an interference with "freedom of commerce", when commerce is conceived as a pattern of trade over the years and not a temporary phenomenon. Injury to potential for future commerce is however, in the Court's view, not necessarily to be identified with injury to freedom of commerce, within the meaning of Article X, paragraph 1, of the 1955 Treaty. In its Judgment of 12 December 1996, the Court emphasized that the Treaty protected "freedom of commerce" rather than merely "commerce"; but deduced from this no more than that

"the possibility must be entertained that [that freedom] 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" (I.C.J. Reports 1996 (II), p. 819, para. 50; emphasis added).

93. There is however a further aspect of the question. According to Iran, the "Production Commissioning" schedule for the repair of the platforms contemplated that production would resume at a date around 24 October 1987, but the Court has no information whether, at the time of the attacks, the works were up to schedule. According to Iran, at the time of the attacks the turbines that supplied power to the platforms were being dismantled for repair, which does not suggest that the works were within a few days of completion. On 29 October 1987 United States Executive Order 12613 was issued, which put an end to imports of Iranian crude oil into the United States. Iran has not brought evidence to show that, if no attack had been made on the Reshadat platforms, production from them would have been an element of "commerce" between the two States before all direct commerce was halted by that Executive Order, and the Court cannot regard that point as established.

94. The embargo imposed by Executive Order 12613 was already in force when the attacks on the Salman and Nasr platforms were carried out; and, as just indicated, it has not been shown that the Reshadat and Resalat platforms would, had it not been for the attack of 19 October 1987, have resumed production before the embargo was imposed. The Court must therefore consider the significance of that Executive Order for the interpretation and application of Article X, paragraph 1, of the 1955 Treaty. Iran has not disputed that the effect of the Executive Order was to halt all direct exports of Iranian crude oil to the United States. The United States therefore argues that "any damage done to Iran's oil platforms by U.S. actions was irrelevant to Iran's ability to [p 206] export oil to customers located in the United States", and that consequently the attacks did not constitute a violation of the freedom of commerce "between the territories of the two High Contracting Parties". Iran however, while not presenting any formal submission or claim that the embargo was unlawful as itself a breach of Article X, paragraph 1, of the 1955 Treaty, has asserted that such was the case, and therefore suggests that the argument advanced by the United States amounts to a party taking advantage of its own wrong. The Iranian contention rests on the hypothesis that the embargo was a breach of the 1955 Treaty, and not justified under Article XX, paragraph 1 (d), thereof; but these are questions which Iran has chosen not to put formally in issue, and on which the Court has thus not heard full argument. The Court is here concerned with the practical effects of the embargo, about which there is no dispute.

95. In response to the contention of the United States that the damage to the platforms was irrelevant to Iranian oil exports to the United States, Iran argues that this conclusion does not follow from the mere fact that direct import into the United States of Iranian crude oil, as such, ceased with the issue of the embargo. Iran suggests that "It is in the nature of the international oil trade that Iranian oil could not be excluded from the United States": "If Iranian crude oil was received by a refinery", for example in Western Europe, "and if that refinery in turn exported products to the United States, then it follows that a quantity of Iranian oil was necessarily imported into the United States in the form of products". Iran has observed that, as a result of the embargo, it found itself in 1987 with a surplus crude oil production of approximately 345,000 barrels per day, and had to find other outlets, namely in the Mediterranean and North-West Europe. At the same time, the United States had to make good the shortfall resulting from the prohibition of Iranian crude oil imports, and therefore increased its existing imports of petroleum products from refineries in the Mediterranean and Western Europe. Iran has submitted to the Court an expert report showing, inter alia, a very considerable increase in exports of Iranian crude oil to Western Europe from 1986 to 1987, and again in 1988, and an increase in United States imports of petroleum products from Western European refineries.

96. The Court sees no reason to question the view that, over the period during which the United States embargo was in effect, petroleum products were reaching the United States, in considerable quantities, that were derived in part from Iranian crude oil. Executive Order 12613 contained an exception (Section 2 (b)) whereby the embargo was not to apply to "petroleum products refined from Iranian crude oil in a third country". It could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been [p 207] included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States. Whether, according to international trade law criteria, such as the "substantial transformation" principle, or the "value added approach", the final product could still retain for some purposes an Iranian character, is not the question before
the Court. What the Court has to determine is not whether something that could be designated "Iranian" oil entered the United States, in some form, during the currency of the embargo; it is whether there was "commerce" in oil between the territories of Iran and the United States during that time, within the meaning given to that term in the 1955 Treaty.

97. In this respect, what seems to the Court to be determinative is the nature of the successive commercial transactions relating to the oil, rather than the successive technical processes that it underwent. What Iran regards as "indirect" commerce in oil between itself and the United States involved a series of commercial transactions: a sale by Iran of crude oil to a customer in Western Europe, or some third country other than the United States; possibly a series of intermediate transactions; and ultimately the sale of petroleum products to a customer in the United States. This is not "commerce" between Iran and the United States, but commerce between Iran and an intermediate purchaser; and "commerce" between an intermediate seller and the United States. After the completion of the first contract Iran had no ongoing financial interest in, or legal responsibility for, the goods transferred. If, for example, the process of "indirect commerce" in Iranian oil through Western European refineries, as described above, were interfered with at some stage subsequent to Iran's having parted with a consignment, Iran's commitment and entitlement to freedom of commerce vis-à-vis the United States could not be regarded as having been violated.

*

98. The Court thus concludes, with regard to the attack of 19 October 1987 on the Reshadat platforms, that there was at the time of those attacks no commerce between the territories of Iran and the United States in respect of oil produced by those platforms and the Resalat platforms, inasmuch as the platforms were under repair and inoperative; and that the attacks cannot therefore be said to have infringed the freedom of commerce in oil between the territories of the High Contracting Parties protected by Article X, paragraph 1, of the 1955 Treaty, particularly taking into account the date of entry into force of the embargo effected by Executive Order 12613. The Court notes further that, at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all commerce in crude oil between the territories of Iran and the United States had been suspended by that Executive Order, so that those attacks also cannot be said to have infringed the rights of Iran under Article X, paragraph 1, of the 1955 Treaty. [p 208]


99. The Court is therefore unable to uphold the submissions of Iran, that in carrying out those attacks the United States breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty. In view of this conclusion, the Iranian claim for reparation cannot be upheld.

**

100. In view of the Court's finding, on the claim of Iran, that the attacks on the oil platforms did not infringe the rights of Iran under Article X, paragraph 1, of the 1955 Treaty, it becomes unnecessary for the Court to examine the argument of the United States (referred to in paragraphs 27-30 above) that Iran might be debarred from relief on its claim by reason of its own conduct.

***

101. On 23 June 1997, within the time-limit fixed for the Counter-Memorial, the United States filed a Counter-Claim, in its Counter-Memorial, against Iran. It explains that its "counter-claim is based on actions by Iran in the Persian Gulf during 1987-88 that created extremely dangerous conditions for shipping, and thereby violated Article X of the 1955 Treaty". In the submissions in that pleading (see paragraph 19 above) 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 1987-88 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."

These submissions were later modified, as explained below.

102. By an Order of 10 March 1998 the Court found that the alleged attacks on shipping, laying of mines, and other military actions by Iran were facts capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty, that the Court had 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 (I.C.J. Reports 1998, p. 204, para. 36), and that it emerged from the Parties' submissions that their claims rest on facts of the same nature and form part of the same factual complex, and that the Parties pursue the same legal aim [p 209] (ibid., p. 205, para. 38); consequently, considering that the counter-claim presented by the United States was directly connected with the subject-matter of the claim of Iran (ibid., p. 205, para. 39), the Court found "that the counter-claim presented by the United States in its Counter-Memorial is admissible as such and forms part of the current proceedings" (ibid., p. 206, para. 46).

103. Iran maintains that the Court's Order of 10 March 1998 did not decide all of the preliminary issues involved in the counter-claim presented by the United States. Iran points out that, in that Order, the Court only ruled on the admissibility of the United States counter-claim in relation to Article 80 of the Rules of Court, declaring it admissible "as such", whilst reserving the subsequent procedure for further decision.

Iran contends that the Court should not deal with the merits of the counter-claim because:

(a) the counter-claim was presented without any prior negotiation, in disregard of the provisions of Article XXI, paragraph 2, of the 1955 Treaty;

(b) the United States has no title to submit a claim on behalf of third States or of foreign entities;

(c) the United States counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty, the only provision over which the Court has jurisdiction; and the Court cannot uphold any submissions falling outside the terms of paragraph 1 of Article X;

(d) the Court has jurisdiction only as far as freedom of commerce as protected under Article X, paragraph 1, is concerned but not on counter-claims alleging a violation of freedom of navigation as protected by the same paragraph;

(e) the United States cannot broaden the actual subject-matter of its claim beyond the submissions set out in its Counter-Memorial.

104. The United States contends that the Order of 10 March 1998 settled definitively in its favour all such issues of jurisdiction and admissibility as might arise.

The Court notes however that the United States is adopting an attitude different from its position in 1998. At that time, while Iran was asking the Court to rule generally on its jurisdiction and on the admissibility of the counter-claim, the United States was basing itself solely on Article 80. It argued in particular that:

"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 abbre-[p 210]viated procedures of Article 80 (3)" (cited in I.C.J. Reports 1998, p. 200, para. 22).

105. The Court considers that it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of the Court to entertain the counter-claim or to its admissibility, other than those addressed by the Order of 10 March 1998. When in that Order the Court ruled on the "admissibility" of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down by Article 80 of the Rules of Court were satisfied, namely, that there was a direct connection of the counter-claim with the subject-matter of the Iranian claims, and that, to the extent indicated in paragraph 102 above, the counter-claim fell within the jurisdiction of the Court. The Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules. This is clear from the terms of the Order, by which the Court found that the counter-claim was admissible "as such"; and in paragraph 41 of the Order the Court further stated that: "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" (I.C.J. Reports 1998, p. 205, para. 41). The Court will therefore proceed to address the objections now presented by Iran to its jurisdiction to entertain the counter-claim and to the admissibility thereof.

106. Iran maintains first that the Court cannot entertain the counter-claim of the United States because it was presented without any prior negotiation, and thus does not relate to a dispute "not satisfactorily adjusted by diplomacy" as contemplated by Article XXI, paragraph 2, of the 1955 Treaty, which reads as follows:

"Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means."

107. The Court cannot uphold this objection of Iran. It is established that a dispute has arisen between Iran and the United States over the issues raised in the counter-claim. The Court has to take note that the dispute has not been satisfactorily adjusted by diplomacy. Whether the fact that diplomatic negotiations have not been pursued is to be regarded as attributable to the conduct of the one Party or the other, is irrelevant for present purposes, as is the question whether it is the Applicant or the Respondent that has asserted a fin de non-recevoir on this ground. As in previous cases involving virtually identical treaty provisions (see United [p 211] States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 26-28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 427-429), it is sufficient for the Court to satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being submitted to the Court.

108. According to the second objection of Iran, the United States is in effect submitting a claim on behalf of third States or of foreign entities, and has no title to do so. Reference has been made in the United States argument on the Counter-Claim to incidents involving vessels flying the flags of the Bahamas, Panama, the United Kingdom and Liberia; Iran contends that the United States is thus claiming to defend the interests of these States, which are not parties to the present proceedings.

109. The Court recalls that the first submission presented by the United States in regard to its counter-claim simply requests the Court to adjudge and declare that the alleged actions of Iran breached its obligations to the United States, without mention of any third States. Accordingly, the Court will strictly limit itself to consideration of whether the alleged actions by Iran infringed freedoms guaranteed to the United States under Article X, paragraph 1, of the 1955 Treaty. The objection of Iran is thus as such devoid of any object and the Court cannot therefore uphold it.

110. In its third objection, Iran contends that the United States counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty, the only text in respect of which the Court has jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the terms of paragraph 1 of that Article.

111. The Court notes that, while in its Rejoinder the United States requested the Court to adjudge and declare

"that, in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military actions 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" (emphasis added),

in its final submissions (see paragraph 20 above) the United States substantially narrowed the basis of its counter-claim, when it requested the Court to adjudge and declare

"Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the territories of the United States and the Islamic Republic of Iran, the Islamic Republic of Iran breached its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty" (emphasis added).
[p 212]

The United States, in presenting its final submissions on the counter-claim, thus no longer relies on Article X of the 1955 Treaty as a whole, but on paragraph 1 of that Article only, and, furthermore, recognizes the territorial limitation of Article X, paragraph 1, referring specifically to the military actions that were allegedly "dangerous and detrimental to commerce and navigation between the territories of the United States and the Islamic Republic of Iran" (emphasis added) rather than, generally, to "military actions that were dangerous and detrimental to maritime commerce".

By limiting the scope of its counter-claim in its final submissions, the United States has deprived Iran's third objection of any object, and the Court cannot therefore uphold it.

112. In its fourth objection Iran maintains that

"the Court has jurisdiction to rule only on counter-claims alleging a violation by Iran of freedom of commerce as protected under Article X (1), and not on counter-claims alleging a violation of freedom of navigation as protected by the same paragraph".

Iran concludes that


"since an alleged violation of 'freedom of commerce' as protected under Article X (1) constitutes the only possible basis for the Court's jurisdiction in the present case, no alleged violation of freedom of navigation or of any other provision of the Treaty of Amity can be entertained by the Court in the context of the counter-claim".

113. It seems, nevertheless, that Iran changed its position and recognized that the counter-claim could be founded on a violation of freedom of navigation. For example, it stated:

"Article X, paragraph 1, refers to 'freedom of commerce and navigation'. It appears that these are distinct freedoms, and in your Order of 1998 you referred to them in the plural . . . Thus there could be navigation between the territories of the High Contracting Parties without any commerce between those territories, even if there could not be navigation without any boat!"

114. The Court, in its Order of 10 March 1998, stated that

"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." (I.C.J. Reports 1998, p. 204, para. 36.)

115. Article X, paragraph 1, envisages both freedoms, freedom of commerce and freedom of navigation, as argued by the United States and accepted by Iran during the oral hearings. As regards the claim of Iran, it is true that the Court has found that only freedom of commerce is in issue (paragraph 80 above). However, the Court also concluded in 1998 that it had jurisdiction to entertain the United States Counter-Claim in so far as the facts alleged may have prejudiced the freedoms (in the plural) guaranteed by Article X, paragraph 1, of the 1955 Treaty (emphasis added), i.e., freedom of commerce and freedom of navigation. This objection of Iran thus cannot be upheld by the Court.

116. Iran presents one final argument against the admissibility of the United States counter-claim, which however it concedes relates only to part of the counter-claim. Iran contends that the United States has broadened the subject-matter of its claim beyond the submissions set out in its counter-claim by having, belatedly, added complaints relating to freedom of navigation to its complaints relating to freedom of commerce, and by having added new examples of breaches of freedom of maritime commerce in its Rejoinder in addition to the incidents already referred to in the Counter-Claim presented with the Counter-Memorial.

117. The issue raised by Iran is whether the United States is presenting a new claim. The Court is thus faced with identifying what is "a new claim" and what is merely "additional evidence relating to the original claim". It is well established in the Court's jurisprudence that the parties to a case cannot in the course of proceedings "transform the dispute brought before the Court into a dispute that would be of a different nature" (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 63). In other words:

"the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the [1936] Rules which provide that the Application must indicate the subject of the dispute" (Societe Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173).

A fortiori, the same applies to the case of counter-claims, having regard to the provisions of Article 80 of the Rules of Court, and in particular [p 214] taking into account the fact that it is on the basis of the counter-claim as originally submitted that the Court determines whether it is "directly connected with the subject-matter of the claim", and as such admissible under that text.

If it is the case, as contended by Iran, that the Court has before it something that "constitutes . . . a new claim, [so that] the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim" (Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, I.C.J. Reports 1992, p. 267, para. 70), then the Court will be bound to dismiss such new claim.

118. The Court has noted in its Order of 10 March 1998 in the present case that the Counter-Claim alleged "attacks on shipping, the laying of mines, and other military actions said to be 'dangerous and detrimental to maritime commerce'" (I.C.J. Reports 1998, p. 204, para. 36). The Court concluded that the counter-claim was admissible in so far as "the facts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph 1" (ibid.).

Subsequently to its Counter-Memorial and Counter-Claim and to that Order of the Court, the United States provided detailed particulars of further incidents substantiating, in its contention, its original claims. In the view of the Court, the United States has not, by doing so, transformed the subject of the dispute originally submitted to the Court, nor has it modified the substance of its counter-claim, which remains the same, i.e., alleged attacks by Iran on shipping, laying of mines and other military actions said to be "dangerous and detrimental to maritime commerce", thus breaching Iran's obligations to the United States under Article X, paragraph 1, of the 1995 Treaty.

The Court therefore cannot uphold the objection of Iran.

119. Having disposed of all objections of Iran to its jurisdiction over the counter-claim, and to the admissibility thereof, the Court has now to consider the counter-claim on its merits. To succeed on its counter-claim, the United States must show that:

(a) its freedom of commerce or freedom of navigation between the territories of the High Contracting Parties to the 1955 Treaty was impaired; and that

(b) the acts which allegedly impaired one or both of those freedoms are attributable to Iran.

The Court would recall that Article X, paragraph 1, of the 1955 Treaty does not protect, as between the Parties, freedom of commerce or freedom of navigation in general. As already noted above (paragraph 90), the provision of that paragraph contains an important territorial limitation. In order to enjoy the protection provided by that text, the commerce or the navigation is to be between the territories of the United States and [p 215] Iran. The United States bears the burden of proof that the vessels which were attacked were engaged in commerce or navigation between the territories of the United States and Iran.

120. The Court will thus examine each of Iran's alleged attacks, in chronological order, from the standpoint of this requirement of the 1955 Treaty:

(a) 24 July 1987: A mine attack on the US-reflagged steam tanker Bridgeton (see paragraph 63 above) in an international shipping channel approximately 18 nautical miles south-west of the Iranian island of Farsi, while en route from Rotterdam, Netherlands, via Fujairah Anchorage, United Arab Emirates, to Mina al-Ahmadi, Kuwait. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(b) 10 August 1987: A mine attack on the US bareboat-chartered, Panamanian-flagged, Texaco Caribbean (see paragraph 63 above), at the Khor Fakkan anchorage off Fujairah, which was laden with a cargo of Iranian light crude being carried from Larak Island Terminal, Iran, to Rotterdam, Netherlands. The Court notes that Iran conceded that the Texaco Caribbean was engaged in commerce between the territories of the two States; but this was in the context of its contention, in relation to its own claim, that the term "commerce" covers "indirect commerce" as well. It therefore requested the Court to dismiss the United States claim concerning this ship on different grounds, namely that the mine incident was not attributable to Iran, and that the United States suffered no loss since the ship was a Panamanian-owned vessel carrying a Norwegian-owned cargo. The United States argued, in relation to the claim of Iran, against such a broad interpretation of the term "commerce" in Article X, paragraph 1, of the 1955 Treaty and also adduced evidence that the cargo was owned by a United States corporation. Since the Court has concluded that the process of "indirect commerce" in Iranian oil through Western European refineries does not represent "commerce between the territories of the two High Contracting Parties" for the purposes of Article X, paragraph 1, of the 1955 Treaty (see paragraph 97 above), and taking account of the fact that the destination was not a United States port, the Court concludes that the vessel was not engaged in commerce or navigation between Iran and the United States.

(c) 15 August 1987: A mine attack on the United Arab Emirates flag supply vessel Anita in the vicinity of Khor Fakkan anchorage off Fujairah while proceeding to supply the vessels in the anchorage. The Court notes that the ship was not engaged in commerce or [p 216] navigation between the territories of the two High Contracting Parties.

(d) 15 October 1987: A missile attack on the US-owned, Liberian-flagged Sungari, while at anchor 10 miles off Mina al-Ahmadi Sea Island Terminal, Kuwait. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(e) 16 October 1987: A missile attack on the US-reflagged Sea Isle City (see paragraph 52 above), which was proceeding from its anchorage to the oil loading terminal at Kuwait's Mina al-Ahmadi Terminal. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(f) 15 November 1987: A gunboat attack on the US-owned, Liberian-flagged, motor tanker Lucy, near the Strait of Hormuz, off Al Khassat, northern Oman, en route to Ras Tanura, Saudi Arabia, from Oits, Japan. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(g) 16 November 1987: A gunboat attack on the US-owned, Bahamian-flagged, steam tanker Esso Freeport en route from Ras Tanura, Saudi Arabia, to the Louisiana Offshore Oil Pipeline Terminal, United States. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(h) 7 February 1988: A frigate attack on the US-owned, Liberian-flagged, motor tanker Diana, while loaded with crude oil from Ras Tanura, Saudi Arabia, en route from Bahrain and the United Arab Emirates to Japan. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

(i) 14 April 1988: A mine attack on the USS Samuel B. Roberts (US warship) near the Shah Allum Shoal, while returning to Bahrain after escorting a convoy of US-flagged vessels. As a warship, the USS Samuel B. Roberts does not enjoy the protection of freedom of navigation guaranteed by Article X, paragraph 1, of the 1955 Treaty. Paragraph 6 of that Article states that "The term 'vessels', as used herein . . . does not, except with reference to paragraphs 2 and 5 of the present Article, include . . . vessels of war". The United States is nevertheless contending that since the USS Samuel B. Roberts was escorting commercial vessels, it enjoys the protection by the 1955 Treaty of freedom of commerce. However, at all events, these vessels were neither navigating nor engaged in commerce between Iran and the United States. Consequently, the United [p 217] States has not shown a breach of Article X, paragraph 1, of the 1955 Treaty in relation to the incident involving the USS Samuel B. Roberts.

(j) 11 June 1988: Speedboat attacks on the US-owned, British-flagged, steam tanker Esso Demetia, loaded at Umm Said and Ras Tanura, Saudi Arabia, en route to Halul Island, Qatar, to complete loading for a planned discharge in Singapore. The Court notes that the ship was not engaged in commerce or navigation between the territories of the two High Contracting Parties.

121. None of the vessels described by the United States as being damaged by Iran's alleged attacks was engaged in commerce or navigation "between the territories of the two High Contracting Parties". Therefore, the Court concludes that there has been no breach of Article X, paragraph 1, of the 1955 Treaty in any of the specific incidents involving these ships referred to in the United States pleadings.
122. The United States has also presented its claim in a generic sense. It has asserted that as a result of the cumulation of attacks on United States and other vessels, laying mines and otherwise engaging in military actions in the Persian Gulf, Iran made the Gulf unsafe, and thus breached its obligation with respect to freedom of commerce and freedom of navigation which the United States should have enjoyed under Article X, paragraph 1, of the 1955 Treaty.

123. The Court cannot disregard the factual context of the case, as described in paragraphs 23 and 44 above. While it is a matter of public record that as a result of the Iran-Iraq war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for the Court to decide that Article X, paragraph 1, of the 1955 Treaty was breached by Iran. It is for the United States to show that there was an actual impediment to commerce or navigation between the territories of the two High Contracting Parties. However, according to the material before the Court the commerce and navigation between Iran and the United States continued during the war until the issuance of the United States embargo on 29 October 1987, and subsequently at least to the extent permitted by the exceptions to the embargo. The United States has not demonstrated that the alleged acts of Iran actually infringed the freedom of commerce or of navigation between the territories of the United States and Iran.

The Court considers that, in the circumstances of this case, a generic claim of breach of Article X, paragraph 1, of the 1955 Treaty cannot be made out independently of the specific incidents whereby, it is alleged, the actions of Iran made the Persian Gulf unsafe for commerce and navigation, and specifically for commerce and navigation between the territories of the parties. However, the examination in paragraph 120 above of those incidents shows that none of them individually involved any [p 218] interference with the commerce and navigation protected by the 1955 Treaty; accordingly the generic claim of the United States cannot be upheld.

124. The Court has thus found that the counter-claim of the United States concerning breach by Iran of its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty, whether based on the specific incidents listed, or as a generic claim, must be rejected; there is therefore no need for it to consider, under this head, the contested issues of attribution of those incidents to Iran. In view of the foregoing, the United States claim for reparation cannot be upheld.

***

125. For these reasons,

THE COURT,

(1) By fourteen votes to two,

Finds that the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, as interpreted in the light of international law on the use of force; finds further that the Court cannot however uphold the submission of the Islamic Republic of Iran that those actions constitute a breach of the obligations of the United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of commerce between the territories of the parties, and that, accordingly, the claim of the Islamic Republic of Iran for reparation also cannot be upheld.

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal, Owada, Simma, Tomka; Judge ad hoc Rigaux;

AGAINST: Judges Al-Khasawneh, Elaraby;

(2) By fifteen votes to one,

Finds that the counter-claim of the United States of America concerning the breach of the obligations of the Islamic Republic of Iran under Article X, paragraph 1, of the above-mentioned 1955 Treaty, regarding freedom of commerce and navigation between the territories of the parties, cannot be upheld; and accordingly, that the counter-claim of the United States of America for reparation also cannot be upheld. [p 219]

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Rigaux;

AGAINST: Judge Simma.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this sixth day of November, two thousand and three, 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) SHI Jiuyong,
President.

(Signed) Philippe Couvreur,
Registrar.

Vice-President RANJEVA and Judge KOROMA append declarations to the Judgment of the Court; Judges HIGGINS, PARRA-ARANGUREN and KOOIJMANS append separate opinions to the Judgment of the Court; Judge AL-KHASAWNEH appends a dissenting opinion to the Judgment of the Court; Judge BUERGENTHAL appends a separate opinion to the Judgment of the Court; Judge ELARABY appends a dissenting opinion to the Judgment of the Court; Judges OWADA and SIMMA and Judge ad hoc RIGAUX append separate opinions to the Judgment of the Court.

(Initialled) J. Y. S.

(Initialled) Ph. C.



[p 220]
DECLARATION OF VICE-PRESIDENT RANJEVA

[Translation]

Violation of freedom of commerce and non-violation of freedom of commerce between the territories of the two Parties — Court's discretionary power and structure of its reasoning — Piercing the veil of the dispute — Constituent elements of the claim: subject-matter and "cause", Article 38, paragraph 2, of the Rules — Jura novit curia — Importance of notion of "cause" of claim.

1. I agree with the following findings in the Judgment:

— the absence of legal justification for the destruction of the platforms on the basis of Article XX, paragraph (1) (d);
— the violation of freedom of commerce as a result of the destruction of the platforms;
— dismissal of the Applicant's claim for reparation;
— dismissal of the counter-claims.

The question whether freedom of commerce in general on the part of one of the contracting parties can legitimately be dissociated from that of freedom of commerce between the territories of the parties to the 1955 Treaty is debatable.

2. The Court's freedom to determine the order in which questions of law raised in the dispute should be addressed is a discretionary one; that does not imply that the Court is entitled to determine in an arbitrary manner how its reasoning should be structured- The choice of method of reasoning depends directly on the general scheme of the dispute: its subject-matter, the parties' claims, their arguments, their overall forensic strategy. It is problematic in practice to rely dogmatically on the dictates of legal or judicial logic, which can be seen on closer examination to be more matters of formal logic. Hence, the way in which a case is to be approached remains unique, and specific to each dispute.

3. In the present case, the Court has not allowed itself to be obstructed by obstacles of a formalistic or formal nature. The terms in which the problem was posed have in fact been distorted by peripheral issues, on which the Parties focused to an unreasonable extent. The result has been a certain artificiality in the subject-matter of the dispute, in the claims presented by the Parties and in their overall forensic strategy, which has at times smacked of sophistry. In the face of these diversionary tactics, the Court has "pierced the veil" of the dispute, relying directly on acts, conduct and statements contemporaneous with the events having given rise thereto. It has taken the view that it should begin by addressing the issue of the lawfulness of use of force in light of the provisions of Article XX, paragraph 1 (d), of the 1955 Treaty.[p 221]

4. In thus going directly to the real heart of the dispute, the Court has complied with its obligation to analyse the facts in a transparent manner and to make a true interpretation of substantive law. That presupposes strict respect for the law applicable, here in the first instance conventional law deriving from the 1955 Treaty and then, by way of interpretive framework to the treaty instrument, international law, that is to say law deriving from the United Nations Charter and international customary law. Piercing the veil of the dispute is a necessary condition, or at least a helpful contribution, in terms of providing a sounder basis for the settlement of international disputes.

5. I would have preferred to adopt a different procedural approach from that of the Court in this dispute in order to arrive at the same solutions. Inasmuch as this approach departs from the traditional ones, it does not justify an opinion. It is based on an analysis of the substance of the claim or matter in dispute. It consists of two essential elements: the subject-matter (quid) and the "cause" (cur); those elements are essential in order to determine and characterize the substance of a dispute, even though it may be difficult precisely to define their respective content.

6. Defining the "cause" of a claim — the underlying reason therefor — is a controversial issue in doctrine because of the notion's malleable character and metaphysical connotations. Article 40 of the Statute confines itself to requiring that the elements to be indicated in the application instituting proceedings shall include the subject-matter of the claim. However, in Article 38, paragraph 2, of the Rules there is a fleeting reference to the notion of "cause": the application "shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based" (emphasis added). Under the Rules, the applicant is required to set out the factual and legal bases of its claim. This drafting device simply transposes the problem without resolving it. Thus the issue of "cause" is bound up with that of the compatibility of the consensual basis of the Court's jurisdiction with the principle jura novit curia. It would be inappropriate here to enlarge upon the doctrinal controversy regarding the difficulty of distinguishing between subject-matter and "cause" and determining the latter's constituent elements, as these are issues not directly dealt with in the Judgment.

7. The notion of "cause" poses a dual difficulty: that of the extent of the Court's power to determine the rule of law to be applied to the dispute submitted to it, and that of how it determines the rules and methods which appear to it to be the most appropriate. Irrespective of forensic strategy and pleading techniques, the Court must not debar itself from ascertaining the true intention of each Party. In paragraphs 32 and 37, the Judgment was at pains to note the position of the respondent Party, which effectively left it to the Court to determine how it should address the connection between Article X, paragraph 1, the basis of its jurisdiction, and Article XX, paragraph 1 (d), which is the underlying "cause" in terms of the applicable law as well as of the claim. I can only regret [p 222] that the Court failed to take the opportunity to find a practical, empirical solution to a delicate problem and to provide a more convincing justification for the order in which it decided to address the issues.

(Signed) Raymond Ranjeva.

[P 223]
DECLARATION OF JUDGE KOROMA

Article XX, paragraph 1 (d), of the 1955 Treaty and principles of international law — Non ultra petita — Order in which issues addressed — The burden of proof and facts — Finding on law.

Although I have voted in favour of the Judgment, I consider it necessary to state the following.
Crucially, the Court has found, consistent with its jurisprudence, that measures involving the use of force and purporting to have been taken under Article XX, paragraph 1 (d), of the 1955 Treaty have to be judged on the basis of the principle of the prohibition under international law on the use of force, as qualified by the inherent right of self-defence.

Article XX, paragraph 1 (d), provides as follows:

"The present Treaty shall not preclude the application of measures:
………………………………………………………………………………………………
(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

The Court applied this rule, as it was bound to do, and came to the conclusion that the Article was not intended to operate wholly independently of general international law on the use of force, so as to be capable of justifying, even in the limited context of a claim for breach of the Treaty, the unlawful use of force. Thus, the Court holds, rightly in my view, that the application of general international law on the question forms part of the interpretation process which it has been entrusted to carry out. In other words, the determination whether an action alleged to be justified under the paragraph was or was not an unlawful measure has to be made by reference to the criteria of the United Nations Charter and general international law.

Based on these criteria, the Court deliberated and reached the conclusion that the actions carried out against the oil installations on 19 October 1987 and 18 April 1988 were not lawful under Article XX, paragraph 1 (d), of the 1955 Treaty, as measures necessary to protect the essential security interests of the United States, since such actions constituted recourse to armed force not qualifying, under the United Nations [p 224] Charter and general international law, as acts of self-defence, and thus did not fall within the category of measures contemplated by that provi-sion of the Treaty. This, in my view, constitutes a reply by the Court to the submissions of the Parties, which the Court is entitled to construe as well as obliged to rule on. And that is what the Court has done, namely, held that the actions in destroying the platforms were contrary to inter-national law. Accordingly, the issue of non ultra petita cannot therefore arise on this occasion. Nor can it apply to the Court's finding as to whether Article X, paragraph 1, of the 1955 Treaty was violated by the actions taken against the oil platforms. On this, the Court finds that the protection of freedom of commerce under the Article applied to the platforms and that the attacks, in principle, impeded Iran's freedom of commerce within the meaning of that expression in the text. This finding is not devoid of significance.

It is also worth noting that the order in which the Court dealt with the questions before it was not only appropriate for the reasons stated in the Judgment and as seen in the light of its jurisprudence {Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I. C.J. Reports 1958, p. 62), but that the Parties themselves were at one in their pleadings that the matter was one for the discretion of the Court.

On the issue of the burden of proof, it could not escape attention that the Court in making its finding not only ensured the observance of the rule, as was its duty, but also carefully considered the facts and evaluated the evidence presented; while the facts are to be taken into consideration, the finding reached in the Judgment must be made on the law.

I consider these points worth emphasizing in relation to the Judgment.

(Signed) Abdul G. Koroma.

[P 225]
SEPARATE OPINION OF JUDGE HIGGINS

Legal nature of Article XX as a defence — Findings on defences not usually contained in dispositif — Ultra petita rule — Exceptions of necessity and desirability — Neither applicable in present case — Freedom to choose grounds of judgment operates within the ultra petita rule — Failure to identify the standard of proof required — Need for even-handedness and transparency in treatment of evidence — International law and the interpretation of Article XX, paragraph 1 (d) — Difference between interpreting by reference to international law and replacing applicable law — Inconsistency with 1996 Judgment.

1. I have voted in favour of the dispositif, having regard to the fact that in its final submissions Iran asked the Court to find that the military action by the United States against the platforms referred to in its Application constituted a violation of Article X, paragraph 1, of the Treaty of Amity, and the Court has decided that "it cannot uphold this submission". My reasons for concurring with this conclusion are essentially those deployed by the Court at paragraphs 79-98. I also agree with the dismissal by the Court in subparagraph (2) of the dispositif of the counter-claim of the United States.

2. However, I have felt it necessary to explain that I do not believe that a finding as regards Article XX, paragraph 1 (d), of the Treaty should have found a place in the dispositif 'at all, still less as the first question determined by the Court. Further, elements of the Court's reasoning and methodology seem to me to be problematic.

Nature of Article XX

3. The nature of Article XX, and of comparable clauses in other treaties, has been variously categorized by the Court. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court described the comparable clause in the FCN Treaty in that case as "providing] for exceptions to the generality of its other provisions" {Merits, Judgment, I.C.J. Reports 1986, p. 116, para. 222). Elsewhere, the Court referred to Article XXI of the Nicaragua-United States FCN Treaty as providing criteria whereby apparent violations of that Treaty might be "nonetheless justifiable" (I. C.J. Reports 1986, p. 136, para. 272, and p. 139, para. 278). [p 226]

4. These alternative assessments are, with respect, all preferable to the single reference in the 1986 Judgment to the clause giving "a power for each of the parties to derogate from the other provisions of the Treaty" (I.C.J. Reports 1986, p. 117, para. 225). "Derogation" is generally understood as a power relied on by one party not to apply, for a fixed period of time, the terms of a particular clause. Neither Article XX of the Iran-United States Treaty nor Article XXI of the Nicaragua-United States Treaty appear to be a derogation clause in the normally understood sense of that term. Rather, these clauses are, as the Court elsewhere repeatedly said, in the nature of a defence or justification of acts which would otherwise constitute a breach of an obligation under the treaty concerned. The Court has in the present case also made it clear that Article XX, paragraph 1 is to be regarded as a defence (Preliminary Objection, I.C.J. Reports 1996 (II), p. 811, para. 20).
5. Notwithstanding the way in which the Court has classified the comparable clause in 1986, and notwithstanding the way in which the Court has classified Article XX in the preliminary objections phase of this case in 1996, the United States has approached it somewhat differently. It has told the Court that "Article XX is not a restriction of Article X . . . Article XX is a substantive provision which, concurrently and concomitantly with Article X, determines, defines and delimits the obligations of the parties" (CR 2003/12, p. 14). The Court, after referring to this in its Judgment, goes on to say that "On this basis, the United States suggests, the order in which the issues are treated is a matter for the discretion of the Court." (Judgment, para. 36.) And this in turn is used by the Court to justify the inclusion in the dispositif findings on Article XX, paragraph 1 (d), before turning to Article X, paragraph 1.

6. However, when these phrases are read, not in isolation, but in the context of the United States overall contentions, a different picture emerges. The United States statement that the order was a matter for the discretion of the Court was clearly prefaced by these explanations:

"If the Court concludes that the actions of the United States did not violate the principle of freedom of commerce and navigation under Article X, it need not then consider whether they were rendered lawful on grounds of protection of essential security interests under Article XX. Conversely, if the Court concludes that the United States actions were 'justified' on grounds of protection of essential security interests under Article XX, it need not then consider whether they contravened the principle of freedom of commerce and navigation under Article X." (CR 2003/11, p. 16).

7. Of course, in order to arrive at a final determination as to whether a treaty obligation has been breached, the Court will necessarily examine [p 227] any justifications or defences offered by the Respondent on conduct that appears to infringe the rights of the Applicant. This is entirely normal and is an exercise engaged in in many, many cases. But this is simply the reasoning on which the final conclusion is based. The Court will take the claimed defence into account in reaching its conclusion as to whether the Applicant's claim fails or succeeds; and it is this last conclusion which then constitutes the dispositif.

8. What the Court does not normally do is to accept or reject a claimed defence as an element in its dispositif. In fact in all the jurisprudence of the Permanent Court or this Court there is only one other case where a determination that a possible defence is rejected appears in the dispositif itself, namely the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 1986. In that case the United States position that it was acting in collective self-defence was rejected in the dispositif. One can only speculate as to whether the absence of the United States from the merits phase had any role in this unusual state of affairs. Further, it is also to be noted that Nicaragua had in its final submissions asked the Court to "adjudge and declare that the United States has violated the obligations of international law indicated in the Memorial" (oral arguments on the merits, I.C.J. Pleadings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Vol. V, p. 238) — and in its Memorial Nicaragua had deployed detailed contentions on this point (Memorial of Nicaragua, I. C. J. Pleadings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Vol. IV, pp. 51-54, 75-83). This particular element in the Nicaragua submissions is wholly absent in the present case.

The Ultra Petita Rule

9. The Application of Iran of November 1992 instituting proceedings in this case asked the Court for a judgment on five points. The first of these ((a)) referred to a finding on jurisdiction. The second and third ((b) and (c)) sought findings of breaches of obligations under Articles I and X, paragraph 1, of the Treaty of Amity and under international law. The fourth and fifth ((d) and (e)) related to remedies.

10. During the course of the written pleadings on jurisdiction, Iran claimed that Article IV, paragraph 1, had been infringed by the United States and this was reflected in its concluding submissions.

11. By March 2003, when Iran came to make its final submissions, the Court had given its Judgment of 12 December 1996 on jurisdiction, and oral argument on the merits had been heard. Paragraphs 2 and 3 of these asked for certain findings of the Court as regards remedies. The sole sub-[p 228] stantive finding now sought by Iran was specified in paragraph 1, as follows:

"That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that the United States bears responsi-bility for the attacks." (Judgment, para. 20.)

12. In contrast to the requests in the Application, and during the preliminary objection phase, the final submissions of Iran thus make no request for findings relating to Article I of the Treaty of Amity, Article IV, paragraph 1, Article X other than paragraph 1 thereof, or to international law. And at no time, from beginning to end, has there been a request for any finding under Article XX, paragraph 1 (d).

13. The Court offers as an explanation for its unusual course of action in including findings on Article XX, paragraph 1 (d), in the dispositif, its "freedom to select the ground upon which it will base its judgment" (paragraph 37, citing Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62). That freedom, of course, is not without limits. As was stated in the Asylum Judgment (I.C.J. Reports 1950, p. 402): "it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions".

14. At the same time, it is well established that the ultra petita rule, while limiting what may be ruled upon in its dispositif, does not operate to preclude the Court from dealing with certain other matters "in the reasoning of its Judgment, should it deem this necessary or desirable" (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 19, para. 43). Thus, exceptionally, the Court has found it necessary to elaborate on a consequence of its findings that the Parties will need to know (case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 117, para. 252 (2) (b)). And occasionally the Court has thought it desirable to include in its dispositif a clause establishing as an obligation an undertaking given or solemn statement made during the course of oral argument (case concerning KasikililSedudu Island (Botswana!Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1108, para. 104 (3); case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 457, para. 325 (V) (Q). The Court has also found it desirable to remind States generally as to their duty to negotiate to [p 229] achieve disarmament (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 267, para. 105 (2) (F)). None of these entailed a determination that one party had acted contrary to international law when no such determination on that point of law had been sought by the other party in its final submission.

15. It is hard to see why it is necessary to address Article XX, paragraph 1 (d), at all, let alone in the dispositif. In the present case the Court has not reached the first hurdle (violation of treaty rights) that necessitates an examination of whether there is a defence or justification. Had that been the case, then an analysis of the provisions of Article XX, paragraph 1 (d), might well have been expected to form part of the Court's reasoning — but even then not to constitute part of the dispositif. Nonetheless, in the present case the Court devotes large parts of its Judgment, and part of its dispositif, to an element that is not asked for in the submissions of the Applicant and whose nature is a defence to a breach — a breach which has not yet been, and is not, determined by the Court.

16. The Court seemingly endeavours to fall within the ultra petita jurisprudence by emphasizing the desirability of a finding on Article XX, paragraph 1 (d), notwithstanding that such a finding was not asked for by Iran in its final submissions. As these "reasons of desirability" relate both to the inclusion of a finding on Article XX, paragraph 1 (d),m the reasoning and the dispositif, and to it being placed as the first element in the dispositif, it is convenient to deal with these two aspects together.

17. The Court refers to "particular considerations" militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1 (para. 37). These very considerations lead me to the opposite conclusion.

18. The reasons it offers are that "the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force" (para. 37), and that "both Parties are agreed as to the importance of the implications of the case in the field of the use of force ..." (para. 38).

19. The Court was in 1996 well aware that there was a general dispute between the Parties in which each claimed unlawful uses of force by the other. Certainly Iran has been interested in seeking a basis of jurisdiction that could allow it to proceed with substantive claims relating to the United States' uses of force. The emphasis put by Iran, in the preliminary objections, on Article I of the Treaty was but one element of many evidencing that its real and only interest lay in the use of force. Iran has not provided hard economic and commercial data during the merits phase in order to substantiate a violation of its freedom of commerce and navigation, further indicating what matters have been of real importance to it. [p 230]

Its failure formally to protest to the United States when the latter, in October 1987, introduced its crude oil embargo is also striking and significant, suggesting that actions that might raise legal issues as to obligations of freedom of commerce, under Article X, paragraph 1, of the 1955 Treaty, were never of great concern.

20. Be that as it may, the International Court in 1996 determined there was no basis for the Court's jurisdiction to be found either in Article I (though that Article had relevance to the interpretation of the Treaty as a whole) or in Article IV, paragraph 1. By contrast, the United States military actions might yet be shown to have affected freedom of commerce between the two countries under Article X, paragraph 1, and the issue that was allowed to proceed to the merits was not a dispute on the legality of the use of force by reference to international law including Charter law, but rather "a dispute as to the interpretation and the application of Article X, paragraph 1, of the Treaty of 1955" (I.C.J. Reports 1996 (II), p. 820, para. 53). The Court had jurisdiction to entertain claims made by Iran under that provision (ibid., p. 821, para. 55). The Court further tied the use of force issues to Article X, paragraph 1, by its finding that actions by a party to the Treaty could in principle violate an obligation thereunder "regardless of the means by which it is brought about" (ibid., p. 811, para. 21).

21. Having clearly explained in 1996 that Article XX, paragraph 1 (d), "is confined to affording the Parties a possible defence on the merits to be used should the occasion arise" (I.C.J. Reports 1996 (II), p. 811, para. 20), for that "occasion [to] arise" the Court would first need to find that these measures constituted a violation of the agreement under Article X, paragraph 1, that "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation" (ibid., p. 817, para. 37).

22. That the Court carefully limited the exercise of its jurisdiction to a future analysis of whether the United States military measures violated freedom of commerce and navigation is crystal clear. "The original dispute" is of no relevance at the present time and it is inappropriate that in 2003 the Court should now treat Article X, paragraph 1, as an afterthought to "the original dispute" over which in 1996 it did not find it had jurisdiction.

23. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did not deal with Article XXI on the basis that the use of force was "the original dispute" and that it had "important implications". Rather, it clearly saw the functions of Article XXI of the Nicaragua-United States FCN Treaty as a means to check whether an interference with a treaty right could be [p 231] defended or justified. The Court found that various provisions of the Treaty had indeed been violated. As the Court put it, having found a violation of Article XIX, paragraph 1, on freedom of navigation "there remains the question whether such action can be justified under Article XXI" (I.C.J. Reports 1986, p. 139, para. 278). That first hurdle — a violation of Article X, paragraph 1 — has not here been met. Invocations of the "original dispute" and "importance" of subject-matter cannot serve to transform a contingent defence into a subject-matter that is "desirable" to deal with in the text of the Judgment and in the dispositif.

24. In summary, Article XX, paragraph 1 (d), was not claimed by Iran in 1996 as affording a basis of jurisdiction; it was not a clause by reference to which Iran in its final submissions in 2003 requested the Court to adjudge and declare that the United States had acted unlawfully; and it is a proviso described by the Court in 1996 as "a possible defence on the merits . . . should the occasion arise" (I.C.J. Reports 1996 (II), p. 811, para. 20). The Court has thus not shown anything that falls within any qualification to the non ultra petita rule.

Freedom to Choose the Grounds on Which to Base the Judgment

25. The Judgment contains an alternative explanation for including, and indeed leading with, Article XX, paragraph 1 (d), in the dispositif. The Court states that it does not consider that the order in which the Articles of the 1956 Treaty were dealt with in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), was dictated by the economy of the Treaty; it was rather an instance of the Court's "freedom to select the ground upon which it will base its judgment" (Judgment, para. 37). But a proper read-ing of the relevant passages in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), would seem to suggest otherwise. The Court there elaborated how it could determine acts as an interference of a substantive obligation, but that it would not be able to classify them as a breach of the treaty without first seeing if these were "measures . . . necessary to protect" the essential security interests of the United States (I.C.J. Reports 1986, p. 136, para. 272).

26. While it is indeed for the Court to choose the ground upon which it will base its judgment (within the constraints of the ultra petita rule indicated above including the qualifications thereto), it has always done so with a strong sense of what is the "real" applicable law in a particular case. Thus in Legality of the Threat or Use of Nuclear Weapons Advisory [p 232] Opinion, faced with, inter alia, legal argument on the Genocide Convention, and Article 6 of the International Covenant on Civil and Political Rights, the Court had no hesitation in knowing that it should exercise its "freedom to choose" by grounding its Opinion in Charter law and in humanitarian law. It cannot, it seems to me, be "desirable" or indeed appropriate to deal with a claim that the Court itself has categorized as a claim relating to freedom of commerce and navigation by making the centre of its analysis the international law on the use of force. And con-versely, if the use of force on armed attack and self-defence is to be judicially examined, is the appropriate way to do so through the eye of the needle that is the freedom of commerce clause of a 1955 FCN Treaty? The answer must be in the negative. These questions are of such a com-plexity and importance that they require a different sort of pleading and a different type of case.

27. Moreover, it is unlikely to be "desirable" to deaf with important and difficult matters, which are gratuitous to the determination of a point of law put by the Applicant in its submissions, when the Applicant has carefully sought to preclude examination by the Court of its own con-duct as regards these matters. In the present case the United States argued that it had not violated Article X, paragraph 1, of the. Treaty,, but contended that should the Court find to the contrary, such actions, (which were admitted as to their facts) would have been justified by. virtue of Article XX, paragraph 1 (d). Faced with United States counter-claims,. Iran has, as it was entitled to do, adopted the strategy of simply denying all allegations of illegal use of force at the relevant time, often)casting blame elsewhere. It has carefully avoided invocation of Article XX,.paragraph 1 (d), even on a contingent basis. The failure of the United-States' counter-claim on the grounds specified in the Judgment (paras. 119-124) means also that no purpose is served in the examination of Iran's- own actions.

28. The consequence is that the Court is thus precluded from examining Iran's prior conduct either by reference: to the Article XX, paragraph 1 (d), standard, or as a matter of international law more generally. It seems to me unwise, as a matter of judicial policy, to strain to examine the conduct of a Respondent on a basis of law which the Applicant has sought to preclude from the scrutiny of the Court so far as its own conduct is concerned.

**[p 233]

29. The function served by a separate or dissenting opinion is to allow a judge to explain why she or he disagrees with part or all of the dispositif or the reasoning. It is not the occasion for writing an alternative judgment. Accordingly, I have not thought it appropriate, given that I believe Article XX, paragraph 1 (d), should not have been addressed by the Court at all, to offer my own assessment of the United States' actions by reference to that provision. I have thought it right, however, to make some short observations on a few legal issues regarding proof and methodology.

Standard of Proof of Evidence and Equality of Treatment of Evidence

30. The first relates to the handling of evidence in the Court's Judgment. In its examination of Article XX, paragraph 1 (d), the Court asserts that the United States has the "burden of proof of the existence of an armed attack" such as to justify it using force in self-defence (Judgment, para. 61). Leaving aside for the moment whether this is indeed the right legal test, it may immediately be noted that neither here nor elsewhere does the Court explain the standard of proof to be met. That a litigant seeking to establish a fact bears the burden of proving it is a commonplace, well-established in the Court's jurisprudence (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437). But in a case in which so very much turns on evidence, it was to be expected that the Court would clearly have stated the standard of evidence that was necessary for a party to have discharged its burden of proof.

31. As to standard of proof in previous cases, the Court's prime objective appears to have been to retain a freedom in evaluating the evidence, relying on the facts and circumstances of each case (see Kazazi, Burden of Proof and Related Issues: A Study on Evidence before International Tri-bunals, 1996, at p. 323; Sandifer, "Evidence before International Courts", in Volume 25, Acta Scandinavica Juris Gentium, 1955, at p. 45).

32. In Corfu Channel, the Court simultaneously rejected evidence "falling short of conclusive evidence" (Merits, Judgment, I.C.J. Reports 1949, p. 17); and referred to the need for "a degree of certainty" (ibid., p. 17). In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did not even attempt to articulate the standard of proof it relied on, merely holding from time to time that it found there was "insufficient" evidence to establish various [p 234] points (Merits, Judgment, I.C.J. Reports 1986, p. 37, para. 54; p. 62, para. 110; p. 85, para. 159; p. 86, para. 159; p. 113, para. 216).
33. Beyond a general agreement that the graver the charge the more confidence must there be in the evidence relied on, there is thus little to help parties appearing before the Court (who already will know they bear the burden of proof) as to what is likely to satisfy the Court. Other judicial and arbitral tribunals have of necessity recognized the need to engage in this legal task themselves, in some considerable detail (for example, Prisoners of War, Eritrea's Claim 17, Eritrea and Ethiopia, Eritrea Ethiopia Claims Commission, Partial Award of 1 July 2003, at paras. 4353; Velasquez Rodriguez case, Judgment of 29 July 1988, Inter-American Court of Human Rights, paras. 127-139). The principal judicial organ of the United Nations should likewise make clear what standards of proof it requires to establish what sorts of facts. Even if the Court does not wish to enunciate a general standard for non-criminal cases, it should in my view have decided, and been transparent about, the standard of proof required in this particular case.

34. The Court has satisfied itself with saying that it does not have to decide "on the basis of a balance of evidence", by whom the missile that struck the Sea Isle City was fired: it suffices for it to say that the United States has not discharged the necessary burden of proof because "the evi-dence available is insufficient". But by which criteria is sufficiency/insufficiency being tested?

35. The Court also found it significant that there was

"no direct evidence at all of the type of missile that struck the Sea Isle City; the evidence as to the nature of other missiles fired at Kuwaiti territory at this period is suggestive, but no more" (para. 59).

It is not clear whether the Court is rejecting indirect evidence per se (though it was clearly accepted by the Court in Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 18), or whether it was accepting indirect evidence but that in this particular case it did not meet the standard "no room for reasonable doubt" enunciated in 1949 (ibid., p. 18).

36. As for the evidence concerning responsibility for the mine which struck the USS Samuel B. Roberts, the Court acknowledges — albeit in a mere five lines — that there were comparable moored mines in the same area, that they bore serial numbers matching other Iranian mines, and that these included the mines found on board the vessel Iran Ajr. The [p 235] evidence on the mine that struck the USS Samuel B. Roberts, as well as to related mining evidence, is on any test rather weighty, and was without the technical uncertainties and inconsistencies undoubtedly present in the Sea Isle City missile evidence. Certainly there was significant direct relevant evidence of a sort lacking in respect of the missile that hit the Sea Isle City. The United States also submitted evidence suggesting that Iran placed mines in shipping lanes known to be used by neutral ships, including those of the United States. All this evidence, states the Court, is "highly suggestive, but not conclusive" (para. 71). But it is impossible to know, in the absence of any articulated standard or further explanation, why the Court reached this conclusion.

37. Finally, it does not seem to me that the Court has been even-handed in its treatment of the evidence. The complicated and conflicting evidence on the Sea Isle City missile is correctly deployed in the Judgment at very considerable length. The uncertainties are rehearsed over 15 detailed paragraphs. The evidence as to mining was offered to the Court in equal detail and volume, comprising a voluminous quantity of testimony. This detailed evidence, which all points in but one direction, is dealt with by the Court in a single paragraph (para. 71).

38. It is also the case that the Court hardly deals at all with the evidence relating to the alleged use of the platforms in the laying of mines. There was a huge amount of evidence presented to the Court. Some of it was direct and some of it indirect. Some of it was from several sources, some mere repetition from a single source. Some sources were partisan, some neutral. Some were reports of participants, others of those removed from the scene. Some were contemporaneous, some not. There is no attempt by the Court to sift or differentiate or otherwise examine this evi-dence. It merely says that it is "not sufficiently convinced" with it, without any further analysis or explanation (para. 76).

39. My point is not to agree or disagree with the Court on any of the conclusions as to evidence that it reaches. It is rather to say that the methodology it uses seems flawed.

**[p 236]

International Law and the Interpretation of Article XX (1) (d)

40. Underlying this inadequate treatment of the evidence in the Judgment is the belief of the Court that, as it puts it, "even accepting those contentions" (para. 76) the real issue is whether the United States attacks on the platforms "could have been justified as acts of self-defence" (ibid.). The Court offers as the basis of its analysis of the United States' attacks on the platforms the jus ad bellum on armed attack and self-defence. The Court recalls the divergent position of the Parties on the relationship between self-defence and Article XX, paragraph 1 (d), at paragraph 39 of the present Judgment.

41. The text of Article XX, paragraph 1 (d), does not suggest any answer to the question of whether the use of force was ever envisaged as a "measure" that might be "necessary" for the protection of "essential security interests". The Court has in 1986 answered the question, at least to a degree. The Court there said that "action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI" — the text in that case corresponding to Article XX of the 1955 Treaty (/. C.J. Reports 1986, p. 117, para. 224). No travaux préparatoires exist to sustain this. The Court in 1986 simply referred to proceedings of the United States Foreign Relations Committee for support for this proposition. All this is cited at paragraph 40 of the present Judgment.

42. Certainly the Court in 1986 thought that action taken in self-defence might constitute a "measure" regarded by a party as necessary to protect essential security interests. But today's Judgment slides from that verity to the proposition that the Court has in 1986 found that the only permitted military action that might justify what otherwise might be a breach of an obligation of the Treaty is an exercise of self-defence in response to an armed attack. The proposition may or may not be right — but in my view it goes beyond what was decided in 1986.

43. The Court in 1986 certainly recognized that "less grave forms" of the use of force might occasion other responses (I.C.J. Reports 1986, p. 101, para. 191). Whether the Court envisaged only non-forceful countermeasures is, for the moment, a matter of conjecture. That, too, is not addressed in the present Judgment. The Court simply moves on from the Court's 1986 statement that a necessary measure to protect essential security interests could be action taken in self-defence to the rather different determination that an armed attack on a State, allowing [p 237] of the right of self-defence, must have occurred before any military acts can be regarded as measures under Article XX, paragraph 1 (d). But some stepping stones are surely needed to go from one proposition to the other.

44. The Court then asks whether any use of force for which Article XX, paragraph 1 (d),is invoked was "contemplated, or assumed" by the Parties as having "to comply with the conditions laid down by international law" (para. 40). The Court answers that

"It is hardly consistent with Article I to interpret Article XX, paragraph 1 (d),to the effect that the 'measures' there contemplated could include even an unlawful use of force by one party against the other." (Para. 41.)

But, with respect, is not the issue precisely whether the Court has jurisdiction to determine, in respect of Article XX, paragraph 1 (d), whether a measure is "an unlawful use of force"?

45. It is a commonplace that treaties are to be interpreted by reference to the rules enunciated in Article 31 of the Vienna Convention on the Law of Treaties, which Article is widely regarded as reflecting general international law. Article 31, paragraph 3 (c), on which the Court places emphasis, states that, in interpreting a treaty, "There shall be taken into account, together with the context, . . . any relevant rules of international law applicable in the relations between the parties."

46. The Court reads this provision as incorporating the totality of the substantive international law (which in paragraph 42 of the Judgment is defined as comprising Charter law) on the use of force. But this is to ignore that Article 31, paragraph 3, requires "the context" to be taken into account: and "the context" is clearly that of an economic and commercial treaty. What is envisaged by Article 31, paragraph 3 (c), is that a provision that requires interpretation in Article XX, paragraph 1 (d), will be illuminated by recalling what type of a treaty this is and any other "relevant rules" governing Iran-United States relations. It is not a provision that on the face of it envisages incorporating the entire substance of international law on a topic not mentioned in the clause — at least not without more explanation than the Court provides.

47. Having recounted the differing views of the Parties on the role of the Charter and customary international law in relation to Article XX, paragraph 1(d), the Court states that the matter is really "one of interpre-[p 238] tation of the Treaty, and in particular of Article XX, paragraph 1 (d)" (para. 40). But the reality is that the Court does not attempt to interpret Article XX, paragraph 1 (d). It is not until paragraph 73 that there is any legal reference at all to the text of that provision. The intervening 15 pages have been spent on the international law of armed attack and self-defence and its application, as the Court sees it, to the events surrounding the United States attacks on the oil platforms.

48. An interpretation "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties) would surely have led to a scrutiny of the very terms of Article XX, paragraph 1(d), especial attention being given to the provision "necessary" and "essential security interests". The Court should, in my view, have itself first assessed whether there were essential security interests at risk. It would have noted that Iran itself conceded that the events in the Gulf generally, and the dangers to commerce presented by the so-called "Tanker War",, and the concomitant costs, did affect United States essential security interests (see paragraph 73 of the Court's Judgment). The Court should next have examined — without any need to afford a "margin of appreciation" — the meaning of "necessary". In the context of the events of the time, it could certainly have noticed that, in general international law, "necessary" is understood also as incorporating a need for "proportionality". The factual evidence should then have been assessed in the light of these elements — treaty interpretation applying the rules of the Vienna Convention on the Law of Treaties.

49. The Court has, however, not interpreted Article XX, paragraph 1 (d), by reference to the rules on treaty interpretation. It has rather invoked the concept of treaty interpretation to displace the applicable law. It has replaced the terms of Article XX, paragraph 1(d), with those of international law on the use of force and all sight of the text of Article XX, paragraph 1 (d), is lost. Emphasizing that "originally" and "in front of the Security Council" (paras. 62, 67, 71 and 72 of the Judgment) the United States had stated that it had acted in self-defence, the Court essentially finds that "the real case" is about the law of armed attack and self-defence. This is said to be the law by reference to which Article XX, paragraph 1 (d), is to be interpreted, and the actual provisions of Article XX, paragraph 1 (d), are put to one side and not in fact interpreted at all.

50. The United States — perhaps especially remembering the injunction of the Court in Military and Paramilitary Activities in and against [p 239] Nicaragua (Nicaragua v. United States of America) of 1986 as to the legal requirement of reporting any self-defence measures to the Security Council — had taken care to do so in this instance. But it is not the legality of that claim of self-defence before the Security Council that the Court is asked to adjudicate. The Judgment is formulated as if in this case the United States has formulated its main defence as an invocation of the right of self-defence. It has not. It invoked that argument as a final submission in the alternative, arising only should the Court find that its other arguments do not avail. But the Court never looks at its major submission, which was a justification of the use of force by reference to the criteria specified in Article XX, paragraph 1 (d). In spite of repeatedly stating in 1996 that this clause would on the merits afford a possible defence that would then be examined (I.C.J. Reports 1996 (II), p. 811, para. 20), the Court never does so. It effectively tells the United States that as it had reported the acts to the Security Council as being acts of self-defence, it is now to be judged on that, and that alone.

51. Further, in reformulating the matter as one of self-defence under international law rather than "necessary" action for the "protection of essential security interests" within the terms of the 1955 Treaty, the Court narrows the range of factual issues to be examined. Through this recasting of the United States case the Court reduces to nil the legal interest in what was happening to oil commerce generally during the "Tanker War". Instead it makes the sole question that of whether an attack on two vessels (Sea Isle City and USS Samuel B. Roberts) constituted an armed attack on the United States that warranted military action in self-defence.

52. Moreover, the Court has in this Judgment done what it had set its face against doing in 1996. The Court — entirely aware, even then, that the issue over which Iran would have liked a ruling was that of the legality of the use of United States military actions by reference to international law on the use of force — determined that it had jurisdiction over one issue alone: whether the use of force by the United States had violated its obligations relating to freedom of commerce under Article X, paragraph 1, of the 1955 Treaty. The Court would later also look at any defence the United States raised under Article XX, paragraph 1 (d). There is no indication whatsoever that the Court envisaged the reintroduction, through an "interpretation" of Article XX, paragraph 1 (d), of the much broader issue over which it had so clearly said in 1996 that it had no jurisdiction.

53. The Applicant in 1996 sought a jurisdictional basis to bring a case against the Respondent regarding the use of force under customary inter-[p 240]national law and Charter law. The Court held that the only dispute before it was one over freedom of commerce under Article X, para-graph 1, of the 1955 Treaty.

54. The present Judgment, through a series of steps that I have described (each, in my view, open to challenge), essentially reverses the 1996 decision, allowing a clause described by the Court in 1996 as a "defence" to be a peg for a determination by the Court as to the legality of the United States military actions under international law.

(Signed) Rosalyn Higgins.

[p 241]
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

Partial disagreement with paragraph 125 (1) — According to 1996 Judgment, Court's jurisdiction is based solely on Article X, paragraph 1, of the 1955 Treaty — Iran's main submission was that the military actions of the United States breached that Article — Task of the Court was to adjudge Iran's submission before deciding, if necessary, whether the military actions were justified under Article XX, paragraph 1 (d), of the 1955 Treaty — Court concluded that Article X, paragraph 1, of the 1955 Treaty had not been breached by the United States — Therefore, the dispute was resolved and the Court had no jurisdiction to examine the justification advanced by the United States for its hypothetical breach of Article X, paragraph 1, of the 1955 Treaty.

1. I have voted for the operative part of the Judgment but my favourable vote does not mean that I share each and every part of the reasoning followed by the Court in reaching its conclusions. In particular I am not in agreement with the first sentence of paragraph 125 (1) stating that the Court:

"Finds that the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, para-graph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, as interpreted in the light of international law on the use of force."

2. The reasons for my disagreement are the following.

3. The Court decided in its 12 December 1996 Judgment 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" (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 821, para. 55 (2)).

4. The first submission presented by Iran requests the Court, rejecting all contrary claims and submissions, to adjudge and declare

"That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X, para-[p 242]graph 1, of the Treaty of Amity, and that the United States bears responsibility for the attacks."

5. Thus the subject-matter of the dispute submitted by the Islamic Republic of Iran (hereinafter Iran) to the Court was whether the military actions of the United States of America (hereinafter the United States) breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, Economic Relations and Consular Rights signed in Tehran on 15 August 1955 (hereinafter the 1955 Treaty), in force between the parties. Therefore the task of the Court was to decide the claim presented by Iran, i.e., to examine and determine whether the United States violated its obligations under Article X, paragraph 1, of the 1955 Treaty. It is only if the Court comes to the conclusion that the United States breached its obligations under Article X, paragraph 1, of the 1955 Treaty that it has jurisdiction to enter into the consideration of the defence advanced by the United States to justify its military actions against Iran, in particular whether they were justified under its Article XX, paragraph 1 (d), which provides:

"The present Treaty shall not preclude the application of measures:
………………………………………………………………………………………………
(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

6. Notwithstanding, paragraph 35 of the Judgment states:

"To uphold the claim of Iran, the Court must be satisfied both that the actions of the United States, complained of by Iran, infringed the freedom of commerce between the territories of the Parties guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d)."

7. Then paragraph 37 adds:

"In the present case, it appears to the Court that there are particular considerations militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1."

8. The first particular consideration militating in favour of reversing the order of examination of the Articles of the 1955 Treaty is explained in paragraph 37 of the Judgment as follows:

"It is clear that the original dispute between the Parties related to [p 243] the legality of the actions of the United States, in the light of international law on the use of force. At the time of those actions, neither Party made any mention of the 1955 Treaty. The contention of the United States at the time was that its attacks on the oil platforms were justified as acts of self-defence, in response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action to the Security Council under Article 51 of the United Nations Charter. Before the Court, it has continued to maintain that it was justified in acting as it did in exercise of the right of self-defence; it contends that, even if the Court were to find that its actions do not fall within the scope of Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and appropriate actions in self-defence."

9. A second particular consideration is indicated in paragraph 38 of the Judgment in the following terms:

"Furthermore, as the United States itself recognizes in its Rejoinder, 'The self-defense issues presented in this case raise matters of the highest importance to all members of the international community', and both Parties are agreed as to the importance of the implications of the case in the field of the use of force, even though they draw opposite conclusions from this observation. The Court therefore considers that, to the extent that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty authorizes it to examine and rule on such issues, it should do so."

10. There can be no doubt that matters relating to the use of force and to self-defence are of the highest importance to all members of the international community. However, in its 12 December 1996 Judgment, the Court interpreted Article XX, paragraph 1 (d), of the 1955 Treaty "as affording only a defence on the merits"; recalling that

"The Court, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), adopted the latter interpretation for the application of an identical clause included in the Treaty of Friendship, Commerce and Navigation concluded between the United States and Nicaragua on 21 January 1956 (I.C.J. Reports 1986, p. 116, para. 222, and p. 136, para. 271). Iran argues, in this case, that the Court should give the same interpretation to Article XX, paragraph 1 (d). The United States, for its part, in the most recent presentation of its arguments, stated that 'consideration of the interpretation and application of Article XX, paragraph 1 (d), was a merits issue'. The Court sees no reason to vary the conclusions it arrived at in 1986. It accordingly takes the view [p 244] that Article XX, paragraph 1 (d), does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise." (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 811, para. 20.)

11. The Court was perfectly well aware at that time of the two particular considerations quoted above. Notwithstanding, in its 12 December 1996 Judgment, the Court expressly interpreted Article XX, paragraph 1 (d), of the 1955 Treaty "as affording only a defence on the merits" and concluded that it "is confined to affording the Parties a possible defence on the merits to be used should the occasion arise".

12. Even though this is not mentioned as a particular consideration militating in favour of reversing the order of examining the Articles of the 1955 Treaty, paragraph 36 of the Judgment nonetheless recalls that the United States suggests that the Court can:

"dismiss the Iranian claim either on the ground that the actions of the United States did not involve a breach of Article X, paragraph 1, or on the ground that those actions were measures necessary to protect the essential security interests of the United States, and therefore justified under Article XX, paragraph 1 (d). On this basis, the United States suggests, the order in which the issues are treated is a matter for the discretion of the Court."

13. A suggestion made a posteriori by one of the parties to a case — even if that party is the United States — does not justify the modification of a previous decision adopted by the Court, in particular because the United States has strongly denied that its military actions violated Article X, paragraph 1, of the 1955 Treaty, which is the basis for the claim submitted by Iran to the Court. Therefore, in my opinion, the Court should have considered Article XX, paragraph 1 (d), as a defence to be examined only in the event of its having previously established that the United States had violated Article X, paragraph 1, of the 1955 Treaty.

14. The reasons indicated above explain that there are no "particular considerations militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1". On the contrary there are strong considerations in favour of not having done so. The second sentence of paragraph 125 (1) of the Judgment states that the Court cannot "uphold the submission of Iran that those [military] actions constitute a breach of the obligations of the United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of commerce between the territories of the parties". That is the end of the story. Therefore, in my opinion, the Court did not [p 245] have jurisdiction to examine the defences advanced by the United States on the basis of Article XX, paragraph 1 (d), to justify its hypothetical breach of Article X, paragraph 1, of the 1955 Treaty.

( Signed) Gonzalo Parra-Aranguren.

[p 246]
SEPARATE OPINION OF JUDGE KOOIJMANS

Factual context — Political relations between Parties before and during Iran-Iraq war (1980-1988) — Tanker War and neutral shipping — Attacks against platforms — United States embargo — 1955 Treaty not mentioned at the time.

Limited jurisdiction of the Court — Sole issue whether Article X, paragraph 1, has been violated — Character and interpretation of Article XX, paragraph 1 (d) — Question is not whether United States acted in self-defence — Order of arguments in reasoning.

Article XX, paragraph 1 (d), not relevant for decision on claim — First finding of dispositif no ground for disposition on final submission — Obiter dictum in operative part of Judgment.

Freedom of commerce not adversely affected by actions against platforms — Effect of United States embargo — Indirect commerce.

Analysis of measures necessary to protect essential security interests — Test of reasonableness — Legality test — Role of general international law — Attributability to Iran of incidents — Role of platforms — Whether United States actions are appropriate response to threat to security interests.

Introduction

1. I have voted in favour of the operative part of the Judgment since I agree with the substance of what is said there. I am of the view that the military actions of the United States against the Iranian oil platforms on 19 October 1987 and 18 April 1988 did not constitute a violation of Article X, paragraph 1, of the 1955 Treaty between the United States and Iran since they did not adversely affect freedom of commerce between the territories of the Parties and that consequently Iran's claim must be dismissed. Likewise, I am of the view that Iran did not violate its obligation under that same Article concerning freedom of commerce and navigation between the territories of the Parties and that the counterclaim of the United States must therefore be dismissed. Moreover, I share the Court's view that the United States actions cannot be qualified as measures necessary to protect its essential security interests in the sense of Article XX, paragraph 1 (d), of the Treaty.

2. I cast my vote with considerable hesitation however. This hesitation arises from my view, despite my support for the substance of the operative part, that the structure of the Judgment is not in keeping either with [p 247] what would be expected of the Court or with the Court's usual practice. It is not well balanced, does not sufficiently reflect the factual context of the case and is not a transparent, well-defined reply to the Applicant's claim and the Respondent's defence, even if their arguments are comprehensively dealt with.

3. My main reason of concern, however, upon casting my vote was that the operative part does not immediately respond to the claim as formulated by the Applicant, but starts with a finding not essential to the Court's decision on that claim, thereby creating the impression that it nevertheless was essential for that purpose. I have checked the operative parts of all judgments of this Court and its predecessor, the Permanent Court of International Justice, in contentious cases and none of them starts with a finding that is not determinative for the Court's disposition of the claim. Although it is not unusual for the dispositif 'of a judgment to contain elements which do not respond directly to points raised in the claim, such paragraphs either are addressed to both parties (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 149, para. 292 (16); KasikililSedudu Island (Botswana!Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1108, para. 104 (3)) or are observations by the Court concerning existing rights belonging to or obligations undertaken by one of the parties (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 117, para. 252 (2) (b); LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 516, para. 118 (6); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 457, para. 325 (V) (C)). In the Hostages case, paragraph 1 of the dispositif contained a finding (a violation by the Respondent of its obligations under general international law) which did not directly correspond to the Applicant's claim in the final submission but that claim itself was first upheld in to to (United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 44, para. 1).

It is, however, unprecedented in the history of both Courts for a claim against a Respondent to be rejected while earlier in the same paragraph the Respondent is found to have acted unlawfully even though that finding is not — and is not said to be — determinative or even relevant for the dismissal of the claim. This novum can be seen as setting a precedent which in my view is a highly hazardous one since it raises questions about the scope of a judgment of the Court, for example, with regard to its res judicata character.

4. I have found it necessary to set out what in my opinion would have been the appropriate approach to deal with a dispute which originated in [p 248] the use of force but was brought to the Court as a violation of treaty-guaranteed freedom of commerce.

I will first give an overview of the factual context; I will then deal with the character of the case before the Court as defined by the claim and counter-claim; finally, I will consider a number of issues dealt with in the reasoning of the Judgment.

The Factual Context

5. The circumstances surrounding the military actions against the oil platforms, which are the main issue of the dispute between the Parties, are well known and have been described in paragraphs 23 and 24 of the Judgment. Nevertheless, it seems useful to recall the political aspects of the war that raged for eight years between Iran and Iraq and the impact this war had on the already strained relations between Iran and the United States.

6. Relations between the United States and Iran had been excellent until the beginning of 1979 when the Shah's regime was toppled. The 1955 Treaty of Amity, Economic Relations and Consular Rights exemplified these warm relations, which, however, turned sour when the gov-ernment which came to power after the Islamic Revolution accused the United States of long-time interference in the internal affairs of Iran. Relations between the two countries plummeted to an all-time low after the seizure of and hostage-taking in the American Embassy in Tehran in November 1979.

7. This crisis came to an end upon the release of the remaining hostages in the beginning of 1981 and by a diplomatic settlement by means of the Algiers Declarations of 19 January 1981, which led to the establishment of the Iran-United States Claims Tribunal in The Hague (which has not yet completed its task). Notwithstanding the settlement, relations remained tense; diplomatic relations between the two countries, which had been severed after the hostage-taking, were not resumed.

8. In the meantime, Iran became involved in a war with its neighbour when it was invaded by Iraqi military forces on 22 September 1980. It is common knowledge that the Security Council was lax in taking action: only in 1987 did it determine that there was a breach of the peace and adopt a resolution under Chapter VII of the Charter (resolution 598 (1987) of 20 July 1987). Until then it had confined itself to calling for a ceasefire and for greater respect for the rules of international humanitarian law, of which there were gross breaches during the war; it did not however attribute specific violations to either of the Parties.

9. Iran, which considered itself to be the victim of aggression, ascribed this passivity on the part of the Council to the partiality of a number of [p 249] influential United Nations member States, notably the Arab countries and the United States, and accused them of in fact supporting Iraq and preventing the Security Council from taking meaningful measures to bring the war to an end. Iran accused Kuwait, Saudi Arabia and the United States in particular of enabling Iraq to continue its unlawful use of force and of not respecting their duties as neutral States. It did not, however, deny these States their status as formally neutral powers.

10. In 1984 the war, which until then had been mainly a land war, spread to the Persian Gulf when Iraq started harming Iran's oil trade, which provided the latter with the finances to sustain its war efforts. Iraq attacked ships on their way to and from Iranian ports in order to hinder Iran's oil exports. This was the beginning of the Tanker War, which lasted until the ceasefire in August 1988 and during which Iran retaliated by attacking or mining ships coming from or destined for Kuwaiti and Saudi ports.

11. Although Iran denied responsibility for individual incidents, it nevertheless openly stated that it was entitled to take action against neutral ships trading with the "enemy".

According to a list produced by Lloyd's Maritime Information Service (Counter-Memorial of the United States, Exhibit 9), a total of 544 shipsFN1 were attacked during the war, the overwhelming majority of them sailing under a neutral flag. According to Lloyd's, more than 200 of these incidents from March 1984 onward could be attributed to Iranian military forces. These developments caused a number of States to send warships to the region in order to protect international shipping and continued international trade through the Gulf.

---------------------------------------------------------------------------------------------------------------------FN1 The list of 546 incidents also includes the United States attacks on the oil platforms.
---------------------------------------------------------------------------------------------------------------------

12. It is in this context and against this backdrop that the United States attacks against the oil platforms took place. The already tense relations between Iran and the United States had remained extremely bad during the first years of the war, Iran blaming the United States for its alleged undisguised support of the aggressor Iraq and the United States accusing Iran of blatantly violating the laws of neutrality and of naval warfare.

Not only the United States but also other States did, however, regularly express through diplomatic channels their deep concern about Iran's behaviour vis-à-vis neutral shipping. Moreover, on 1 June 1984 the Security Council, acting on a complaint by a number of Arab States against Iran, adopted a resolution calling upon all States to respect the right of free navigation in the Gulf area (resolution 552 (1984)). Although neither [p 250] Iran nor Iraq was mentioned by name in the operative part, Iran considered this resolution another illustration of the Council's bias, since the Tanker War had been started by Iraq.

13. It seems indisputable in the light of reports from independent sources like international shipping associations that during the Tanker War both Iraq and Iran disregarded the rules on neutral shipping on a massive scale. Whether all the cases itemized on Lloyd's List as Iranian attacks are indeed attributable to Iran is less relevant than the fact that Iran's non-compliance with the rules of naval warfare is too well documented to ignore or deny. On the other hand, according to Lloyd's List, only three United States flagged ships, two of them recently reflagged Kuwaiti tankers, suffered alleged attacks by Iran before the destruction of the Salman and Nasr platforms; this renders the contention by the United States that its ships were specifically targeted less credible. A verbal and diplomatic battle may have been going on on a nearly daily basis, but the bad political relations did not, until October 1987, translate into a military confrontation.

14. I have thought it useful to describe the factual context since it sufficiently illustrates that at the time the actions against the platforms took place nothing was further from the minds of the Parties than the 1955 Treaty on Amity, Economic Relations and Consular Rights. This is evi-denced by the fact that Iran in its letter to the Security Council called these actions "acts of aggression" whereas the United States called them "actions taken in the exercise of the inherent right of self-defence".

15. On 29 October 1987, the President of the United States promulgated Executive Order 12613, entitled "Prohibiting imports from Iran", in order: "to ensure that United States imports of Iranian goods and services will not contribute financial support to terrorism or to further aggressive actions against non-belligerent shipping" (Counter-Memorial of the United States, Exhibit 138). Nowhere in the Order is there any mention of the 1955 Treaty, let alone any reference to its Article XX, paragraph 1 (d), as a justification for the Treaty's partial suspension. Nor did Iran at the time protest against the embargo as a measure not in conformity with the 1955 Treaty.

16. Yet in 1992, when Iran filed its Application instituting proceedings against the United States, it did so on the basis of the compromissory clause contained in Article XXI of that Treaty, since that clause provided the only possible ground for the Court's jurisdiction.
In its preliminary objections, the United States contended that the 1955 Treaty does not apply to questions concerning the use of force [p 251] and that consequently the Court lacked jurisdiction to entertain Iran's claim.

In the Judgment of 12 December 1996, the Court held that Article XX, paragraph 1 (d), is not an exclusion clause barring the Court from testing the lawfulness of measures taken to protect a party's essential security interest, but a defence on the merits.

"A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means. Matters relating to the use of force are therefore not per se excluded from the reach of the Treaty of 1955. The arguments put forward on this point by the United States must therefore be rejected." (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 811-812, para. 21.)

The Court further concluded that the destruction of the oil platforms was capable of having an adverse effect upon the freedom of commerce guaranteed by Article X, paragraph 1, of the Treaty and that its lawfulness could be evaluated in relation to that paragraph.

The Case before the Court

17. The main issue before the Court is thus whether the United States, by destroying Iranian oil platforms on two occasions, violated its obligation under Article X, paragraph 1, of the 1955 Treaty. It is not whether the United States acted in violation of its obligations under the United Nations Charter and/or general customary law. This is in striking contrast to the case concerning Military and Paramilitary Activities in and against Nicaragua where the Court had jurisdiction to consider both questions since the basis of its jurisdiction was much broader and an identical compromissory clause in a bilateral treaty between Nicaragua and the United States was merely additional to the jurisdiction based upon acceptance thereof by the Parties by virtue of unilateral declarations made under Article 36, paragraph 2, of the Statute. In spite of the similarities between the Nicaragua case and the present case, this essential difference should be kept in mind continuously since in the present case the Court's jurisdiction is considerably more limited.

18. In view of the more limited scope of the Court's jurisdiction, it would have been logical for the Court first to have ascertained whether the destruction of the platforms was indeed a violation of Article X, paragraph 1, since in its claim Iran had submitted that the United States
[p 252] actions had negatively affected freedom of commerce between the territories of the Parties as guaranteed under that provision. Once that question had been answered in the affirmative, the Court would have been obliged to determine whether the action taken by the United States was a measure necessary to protect its essential security interests in the sense of Article XX, paragraph 1 (d), of the Treaty. This approach was followed by the Court in 1986 in the Nicaragua case when it said that

"the possibility of invoking the clauses of that Article [Art. XXI, para. 1 (d), of the 1956 Treaty of Friendship which is identical to Art. XX, para. 1 (d), of the 1955 Treaty] must be considered once it is apparent that certain forms of conduct by the United States would otherwise be in conflict with the relevant provisions of the Treaty" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 117, para. 225; emphasis added).

19. In the present Judgment, the Court has not followed this approach, which, according to the Court, was not "dictated by the economy [a term which I understand to be synonymous with 'the structure'] of the Treaty" (Judgment, para. 37). It can indeed be maintained that both Article X, paragraph 1, and Article XX, paragraph 1 (d), are substantive, freestanding provisions; this is not contested by either of the Parties. They agree that the order in which the Court deals with the two provisions is a matter for the discretion of the Court and that if the Court were to deal first with the use of force as practised by the United States and to conclude that the actions against the platforms were in conformity with Article XX, paragraph 1 (d), the question whether Article X, paragraph 1, was violated would no longer arise.

20. In the present case, the Court has chosen this second approach; it has explained this by pointing to the fact that "the original dispute between the Parties related to the legality of the actions of the United States in the light of international law on the use of force". It is true that neither of the Parties made any reference at the time to the 1955 Treaty. And it is equally true that, as the Court points out, during the recent proceedings the United States continued to maintain that it had justifiably acted in exercise of the right of self-defence. But the United States also observed that this was not a question for the Court to pass upon. During the oral proceedings, counsel for the United States explicitly stated that

"the jurisdiction of the Court is confined to the issue of whether the actions of the United States were necessary in order to protect its essential security interests; that jurisdiction [of the Court] does not [p 253] extend to the issue of the legality of those actions in light of the rules governing the use of force and self-defence" (CR 2003/12, p. 26).

21. The Court has duly taken note of this position of the United States (para. 39 of the Judgment). It observes, however, that when a measure taken under Article XX, paragraph 1 (d), is invoked to justify actions involving the use of force, allegedly in self-defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self-defence under general international law and that, consequently, its jurisdiction extends to the determination whether action (under Article XX, paragraph 1 (d)) was or was not an unlawful use of force, by reference to the provisions of the United Nations Charter and customary international law. And the Court thoughtfully adds "that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty" (paras. 40 and 42 of the Judgment).

22. I seriously doubt, however, whether the Court has faithfully stuck to this declared intention. Already in the next paragraph the Court observes that in the present case the question whether measures taken under Article XX, paragraph 1 (d), were necessary overlaps with the question of their validity as acts of self-defence. And then the Court immediately cites the 1986 Nicaragua Judgment, where it said that the criteria of necessity and proportionality must be met if a measure is to be qualified as self-defence. That statement, however, was made in the context of the Court's dealing with the dispute concerning the lawfulness of the use of force under customary international law as submitted to the Court under Article 36, paragraph 2, of the Statute. That does not mean that that statement is irrelevant for the interpretation of Article XX, paragraph 1 (d), but it seems to pave the way for a nearly exclusive consideration of the United States actions in the light of the right of self-defence under general international law. It can therefore come as no surprise when the Court says in paragraph 50 that it will "first concentrate on the facts tending to show the validity or otherwise of the claim to exercise the right of self-defence”(emphasis added).

23. But that is putting the shoe on the wrong foot. For this is not the claim before the Court, which has to decide whether the actions against the platform can be qualified as measures necessary to protect the United States security interests in the sense of Article XX, paragraph 1 (d), of the 1955 Treaty, not whether they were justified as measures taken in self-defence under international law. It can be readily admitted that if these measures involve the use of force, the rules of general international law become relevant for the question whether these measures can qualify as being "necessary". But that is something completely different from putting these measures directly to the test of the general rules of law on the use of [p 254] force. The relationship is in my opinion aptly reflected in the decision of the Iran-United States Claims Tribunal in the Amoco International Finance case when it said with regard to the 1955 Treaty that "the rules of customary law may be useful... to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and implementation of its provisions" (15 Iran-US CTR 189, p. 222, para. 112).

24. The Court, however, considers the United States actions nearly exclusively in the light of the right of self-defence and returns only at a rather late stage to the terms of Article XX, paragraph 1 (d) (para. 73 of the Judgment). In doing so, it takes as its point of departure the letters sent to the Security Council by the United States Permanent Representative after each of the two incidents, letters that were inevitably worded in Charter-language and most certainly would not have referred to Article XX, paragraph 1 (d), of "the 1955 Treaty even if the United States had linked the actions against the platforms with that Treaty. It is these letters, from which the United States understandably did not distance itself in the present proceedings, which are constantly referred to as yardsticks for the evaluation of the conduct of the United States.

25. The result is that the Court in paragraph 78 of the Judgment concludes that the actions carried out by United States forces against the oil platforms constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defence, and thus did not fall within the category of measures contemplated by Article XX, paragraph 1 (d), of the 1955 Treaty (emphasis added). But as Judge Jennings pointedly said in his opinion in the Nicaragua case:

"The question ... is not. . . whether such measures are justified in international law as action taken in self-defence . . .; the question is whether the measures in question are, or are not, in breach of the Treaty." (Military and Paramilitary Activities in and against Nica-ragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 541.)

26. The parallel finding of the Court in the dispositif where it is said that the actions against the platforms cannot be justified as measures necessary to protect the essential security interests of the United States "as interpreted in the light of international law on the use of force" (emphasis added), is in my opinion phrased in a way which is more in conformity with the proper character of the Court's jurisdiction.

27. The question may, however, be raised whether this finding should have a place in the dispositif in view of the fact that it is not relevant for the Court's ultimate decision on Iran's claim, viz. that the actions against [p 255] the platforms did not infringe the freedom of commerce in oil between the territories of the Parties.

28. In this respect, it may be recalled that the Court in paragraph 34 of the Judgment said that

"If in the present case the Court is satisfied . . . that the actions against the oil platforms were . . . 'measures . . . necessary to protect [the] essential security interests' of the United States ... it must hold that no breach of Article X, paragraph 1, of the Treaty has been established."

The Court came, however, to the opposite conclusion (a conclusion which I share): the actions against the platforms do not qualify as "measures" under Article XX, paragraph 1 (d). That conclusion, therefore, does not release the Court from the separate task of considering whether the actions adversely affected the freedom of commerce in the sense of Article X, paragraph 1.

29. From a procedural point of view the Court's consideration of Article XX, paragraph 1 (d), became irrelevant for the decision on the claim, its effect merely being that that claim had to be decided on arguments material to Article X, paragraph 1, itself. And from a more practical point of view, one could say that the Court could have spared itself a lot of work if it had taken the same approach as it had taken in 1986 in the Nicaragua case and had dealt first with Article X, paragraph 1. In the present case the Court would have found (as it actually did) that there was no violation of Article X, paragraph 1, and the whole issue of Article XX, paragraph 1 (d), could have been left aside, an outcome which is totally different from that reached in 1986.

30. It is not my intention to criticize the Court for the fact that it decided to deal in depth with the lawfulness of the actions against the platforms under Article XX, paragraph 1 (d). Nor do I seriously doubt the Court's wisdom in taking up this issue first and considering only at a later stage the main issue of a violation of Article X, paragraph 1, although with hindsight it can be said that that would have been the more logical and, therefore, the more desirable approach. But pure logic does not always provide the most desirable solution.

31. As the Court correctly states: the order in which the two Articles must be dealt with is not dictated by the structure (or "economy" as the Court calls it) of the Treaty: Article XX is not an exoneration clause. The Court was free to go either way. Whether it is still correct to speak of a defence on the merits (as the Court did in 1996 and still does in paragraph 33 of the Judgment) if the defence is taken up before the merits is debatable but is in my view not essential. The Court is free to choose which way to go and to give its reasons for that choice. In the present [p 256] case, the Court gave as its main argument the fact that the United States measures involved the use of force and that the lawfulness of these measures had been fiercely disputed between the Parties.

32. It is indeed true that the issue of the lawfulness of the United States actions covered a major part of the Parties' arguments and that therefore much pleads for the Court taking special note of these arguments. But the fact that the lawfulness of the use of force as practised by the United States was fiercely disputed between the Parties does not mean that that issue was the dispute before the Court. That dispute was whether the United States had violated Article X, paragraph 1, concerning freedom of commerce between the territories of the Parties. The Court did not have two heads of jurisdiction: one concerning Article X, paragraph 1, and one concerning Article XX, paragraph 1 (d). Article XX, paragraph 1 (d), is only relevant in its connection with Article X, paragraph 1. The whole matter of Article XX, paragraph 1 (d), could have been relevant for the definitive settlement of that dispute, but once it was found not to be, it was no longer a ground upon which the Court could base its Judgment. The Court's finding in this respect therefore should not be part of the dispositif, which is a decision on the Applicant's claim, and that claim could be sufficiently disposed of by considering Article X, paragraph 1, in its own right.

33. There may be an "economy of a treaty" but there certainly is also an "economy of a Judgment". The first law of that latter economy is not to mix up reasoning and dispositif. The operative part of a judgment is the disposition on the final submissions.

"A party's final submission in a case consists of a statement of what it claims in the case, or is requiring from the Court, and not of the reasoning by reference to which it maintains that the Court should act in accordance with the submission."FN2

------------------------------------------------------------------------------------------------------------FN2 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, Vol. II, p. 578.
------------------------------------------------------------------------------------------------------------

Iran's final submission was simple and clear (see paragraph 20 of the Judgment) and the Court adequately replied to that submission in the second part of paragraph 1 of the dispositif. The first part of that paragraph is redundant: it introduces an obiter dictum into the operative part of a judgment.

34. That does not mean that the Court's reasoning should not reflect the main arguments of the Parties. Sir Hersch Lauterpacht notes with approval that: [p 257]


"In general, the Court has examined, with exacting care, the issues raised by the Parties in their pleadings so far as this has been necessary for explaining its decisions. This it has done even if the Judgment or Opinion could be made to rest on a narrower ground than that actually adopted."FN3

------------------------------------------------------------------------------------------------------------FN3 Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1982, p. 61; emphasis added.
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In this respect the present Judgment would certainly not have disappointed Sir Hersch. But he most certainly would not have endorsed the inclusion of an argument in the dispositif which is not a ground for the decision.

35. But the inevitable effect of the prominent place given to Article XX, paragraph 1 (d), and its interpretation in the light of general international law, combined with the first part of paragraph 1 of the dispositif, is that the Judgment reads more like a judgment on the legality of the use of force than as one on the violation vel non of a commercial treaty. One can only wonder what the effect will be on States which are parties to comparable treaties with a compromissory clause.

The Court's Reasoning

36. I find the Court's argument leading to the conclusion that the actions against the platforms cannot be said to have infringed the freedom of commerce in oil between the territories of the Parties persuasive and legally well argued.

In particular, I share the view that the platforms were not merely sites for the extraction of oil, but also were involved in the transport of goods destined to be exported and that therefore in principle their destruction affected adversely the freedom of commerce as protected by Article X, paragraph 1, of the 1955 Treaty. It is, however, the limitation of that protection to commerce between the territories of the Parties in combination with the fact that no actual commerce in oil produced at the platforms was taking place between these territories because they did not at the time of the attack produce oil or because the embargo imposed by United States Executive Order 12613 had taken effect, which must lead to the conclusion that there was no actual infringement of that freedom of commerce.

37. Although Iran's argument that the key issue is not the damage in practice but the violation of the freedom in general to engage in commerce is theoretically not without merit, it has to be kept in mind that the 1955 Treaty is a bilateral treaty enumerating the Parties' specific obligations vis-à-vis each other. It would go too far to interpret the term freedom of commerce in such a broad way that it would encom-[p 258] pass also the trade in goods only to be produced or to be traded at a later stage.

38. Likewise, Iran's argument that the United States Executive Order imposing the embargo made an exception for "petroleum products refined from Iranian crude oil in a third country", thus allowing commerce in oil to continue, tends to ignore that a bilateral treaty can only be expected to protect recognizable and identifiable trade. "Recognizable" means that there must be a commercial transaction or a set of such transactions which directly connect the territories of the Parties; identifiable means that the object of these transactions can be demonstrated as moving from the territory of one Party to that of the other.
The Court rightly concludes (para. 97 of the Judgment) that what is called "indirect commerce" by Iran is not commerce between Iran and the United States, but commerce of each of them with intermediaries which prevent them from bearing responsibility for the transactional phase in which they are not involved.

As for the requirement of "identifiability", it is Iran's expert, Professor Odell, himself who describes the third country's downstream oil industry as being capable of most effectively "de-nationalizing" the crude oil moving into it.

"The conversion of each barrel of that crude into a slate of products . . . [makes] it impossible for any recipient of such products to demonstrate that those products were not derived in part from a crude which was embargoed." (Odell Report, p. 9, Reply of Iran, Vol. III.)

This "denationalizing" effect is clearly demonstrated by the surveys of United States General Imports and Imports for Consumption presented by the United States, which mention Iran as the country of origin of imported crude oil (until the embargo became truly effective), but never as the country of origin of (crude) oil derivatives, whether before the issuance of the embargo or thereafter (Counter-Memorial of the United States, Exhibit 141). This is also in conformity with international trade practice, which tends to base determinations of origin either on the country where the good was wholly obtained or the country where the good underwent its last substantial transformation; oil dérivâtes fall in the latter categoryFN4.

---------------------------------------------------------------------------------------------------------------------FN4 Michael J. Trebilcock and Robert Howse, The Regulation of International Trade, 1999, p. 128.
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39. As for the counter-claim of the United States, I fully share the Court's view that in order for it to determine the existence of a violation [p 259] of the obligation to respect freedom of commerce and navigation, the claimant must demonstrate that the objects affected by such violating acts were actually involved in such commerce or navigation between the territories of the parties. If the claimant fails to substantiate this, the ground for the claim falls away irrespective of the question whether the violating acts can be attributed to the other party or whether the claimant could act for the allegedly affected targets. The Court's reasoning could therefore be rather straightforward and I find no fault with it.

40. As for the United States generic claim based on the alleged responsibility of Iran for the creation of a particularly unsafe situation in the Gulf which led to higher labour and insurance costs, such a claim can only be upheld if the claimant demonstrates damages which are directly linked to a concrete infringement of the freedom of commerce and navigation between the parties' territories. Increased costs which are not directly caused by such an infringement are insufficient for such purpose.

41. The most voluminous part of the reasoning in the Judgment deals with the question whether the United States actions could qualify as acts of self-defence and thus as measures necessary to protect its essential security interests (Judgment, para. 78).

42. As I said before, the approach taken by the Court is putting the cart before the horse. The Court rightly starts by saying that it is its competence to interpret and apply Article XX, paragraph 1 (d) (Judgment, para. 33), but it does so by directly applying the criteria of self-defence under Charter law and customary law and continues to do so until it reaches its conclusion in paragraph 78.

43. The proper approach in my view would have been to scrutinize the meaning of the words "necessary to protect the essential security interests" in Article XX, paragraph 1 (d). In 1986 the Court said in this respect:

"The Court has ... to assess whether the risk run by these 'essential security interests' is reasonable, and secondly, whether the measures presented as being designed to protect these interests are not merely useful but 'necessary'." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 117, para. 224.)

44. In my opinion, this is a rather felicitous choice of words. With regard to the assessment of the risk run by the essential security interests, the term "reasonableness" is used; with regard to the "measures taken", the Court states that it is not sufficient that they may be deemed "useful" but that they must be necessary. This seems to indicate that with regard [p 260] to the measures taken a stricter test must be used than with regard to the assessment that essential security interests are at risk. There seem to be good reasons for such a distinction with regard to the margin of discre-tion to be left to governmental authorities. The evaluation of what essential security interests are and whether they are in jeopardy is first and foremost a political question and can hardly be replaced by a judicial assessment. Only when the political evaluation is patently unreasonable (which might bring us close to an "abuse of authority") is a judicial ban appropriate. And although the choice of means to be taken in order to protect those interests will also be politically motivated, that choice lends itself much more to judicial review and thus to a stricter test, since the means chosen directly affect the interests and rights of others. Moreover, the means by which interests may be protected are usually subjected to legal prescriptions that are stricter and more compelling as the interests and rights that may be affected are deemed more important by the law.

45. In the case before the Court the United States has concluded that a missile attack on and the mining of ships flying its flag combined with other acts endangering neutral shipping are a threat to its essential security interests. I find it difficult to apply the test of reasonableness and to conclude that the American assessment cannot stand that test. Any other government finding itself in the same situation might have come to the same conclusion and the reactions of a large number of other governments confirm that assessment.

46. Confronted with this threat to its essential security interests the United States decided (unlike other States) no longer to use diplomatic and other political pressure, but to opt for a reaction which involved the use of force. By doing so, it opted for means the use of which must be subjected to strict legal norms, since the prohibition of force is considered to have a peremptory character. The measure of discretion to which the United States is entitled is therefore considerably more limited than if it had chosen, for instance, the use of economic measures.

47. This brings us to the question which criteria must be used when the legality test is applied. In this respect, the United States claims that the 1955 Treaty is a lex specialis and that consequently the criterion of the Charter-based notion of self-defence cannot be applied. As counsel for the United States stated:

"The standard for determining the lawfulness under the 1955 Treaty of the United States action is not self-defence; it is the need to take these actions to protect essential security interests. Consequently, if the action with which the United States is reproached [p 261] were necessary to protect its essential security interests, they were lawful with respect to Article X of the 1955 Treaty." (CR 2003/12, p. 19; emphasis in the original.)

48. This position, although formally correct, is nevertheless question begging. The Court's jurisdiction is limited to the interpretation and application of the 1955 Treaty; it cannot therefore determine whether certain acts are contrary to the Charter provisions and the customary rules of the law on self-defence. But neither Article XX, paragraph 1(d), itself nor any other provision of the Treaty contains elements which enable the Court to apply the legality test with regard to the question whether measures, taken to protect the essential security interests, are necessary indeed. The Court, therefore, has no choice but to rely for this purpose on the body of general international law.

49. General international law is therefore indispensable as a standard of interpretation of the provisions of the 1955 Treaty. If the measures taken involve the use of force, it is therefore the rules on the use of force which have to be called in in order to enable the Court to appreciate the lawfulness of these measures. Counsel for the United States was right when he said that if the United States measures are deemed to be necessary to protect its essential security interests, there is no need to ask whether these measures were also taken in the exercise of self-defence. But in order to come to the first conclusion, the law on the right of self-defence cannot be disregarded.

50. The Court's Judgment in the Nicaragua case is in my opinion highly illustrative in this respect. With regard to the trade embargo, which had already been found to be contrary to Article XIX (the Article on freedom of commerce) of the 1956 FCN Treaty (Military and Para-military Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 140, para. 279), the Court asked the question whether its wrongfulness was precluded by Article XXI, paragraph 1 (d). The Court first applied the test of reasonableness and came to a negative conclusion:

"Since no evidence at all is available to show how Nicaraguan policies had in fact become a threat to 'essential security interests' in May 1985, when these policies had been consistent, and consistently criticized by the United States, for four years previously, the Court is unable to find that the embargo 'was necessary' to protect those interests." (Ibid., p. 141, para. 282.)

If the alleged threat to the "essential" security interests cannot be deemed reasonable, the measures taken are eo ipso not necessary. [p 262]

51. With regard to the mining of Nicaraguan ports and the attacks on ports and oil installations, the Court had (by virtue of its jurisdiction under Article 36, paragraph 2, of the Statute) already found that these acts amounted to an unlawful use of force under customary law. When dealing with these same acts in the context of Article XXI, paragraph 1 (d), of the FCN Treaty, the Court confined itself to saying that these "cannot possibly be justified as 'necessary' to protect the essential security interests of the United States" (I.C.J. Reports 1986, p. 141, para. 282).

Evidently, in applying the legality test to the measures taken by the United States in order to protect its essential security interests, the Court used the same standard as it had applied when dealing with these acts from the viewpoint of the lawfulness of the use of force under customary law. If they could not be justified under customary law, they cannot "possibly" be justified under Article XXI, paragraph 1 (d).

52. As far as the legal aspects of Article XX, paragraph 1 (d), of the 1955 Treaty are concerned, the correct approach in my view is the following:

(a) The Court has no jurisdiction to determine whether the destruction of the oil platforms can or cannot be justified as acts of legitimate self-defence.
(b) When determining whether a measure is "necessary to protect a party's essential security interests" the Court must first apply the test of reasonableness with regard to the question whether there existed a plausible threat to these interests justifying certain protective measures. As already said, I am satisfied that in the present case the United States could with good reason argue that its essential security interests were at risk. The fact that other States in a comparable situation made diplomatic protests and took protective measures by means of a military presence in the Gulf is evidence of a general perception that important and essential interests were at stake.
(c) The fact that the United States decided to take measures involving the use of force makes it necessary for the Court to assess their legality in the light of the rules of general international law on the use of force. The use of force is not excluded by Article XX, paragraph 1 (d). The legality test to be applied by the Court must therefore be based on the presumption that the use of force is prohibited unless it can be justified under general international law of which the principle of legitimate self-defence is an important element.

53. Although the United States often refers to Iran's unlawful behaviour in general during the Tanker War, it does not contest that the attacks on the oil platforms were a reaction to two specific incidents. [p 263]

On 16 October 1987 the United States-flagged tanker Sea Isle City was hit by a missile; three days later the Reshadat platform was attacked and destroyed. On 14 April 1988 the United States frigate Samuel B. Roberts struck a mine; five days later the Salman and Nasr platforms were attacked and destroyed. The first question to be answered, therefore, is whether these incidents were attributable to Iran.

54. I share the Court's view that the United States has not been able to submit convincing evidence that the missile attack on the Sea Isle City can be attributed to Iran. Although this attack undoubtedly increased the security risks for United States and other neutral shipping, the contention by the United States that this increased risk must be attributed to Iran and consequently entitled the United States to use force, cannot be accepted. In view of the fact that the use of force must be subjected to a strict legality test, probabilities or even near certainties do not suffice as justification; the United States could and should have taken recourse to other means to protect its security interests. The destruction of the Reshadat and Resalat platforms therefore does not qualify as measures necessary to protect the essential interests of the United States.

55. The question whether the missile attack on the Sea Isle City and other incidents mentioned by the United States (see paragraph 64 of the Judgment) constituted an armed attack on the United States itself, entitling it to exercise the right of self-defence, is in my view less relevant. Since none of these incidents can with certainty be attributed to Iran, a retaliatory measure involving the use of force against the State cannot by any legal standards be called a measure that is necessary.

56. The case is different in my opinion with regard to the mining of the USS Samuel B. Roberts. I am satisfied that the United States has provided sufficient evidence to justify the conclusion that the Samuel B. Roberts was hit by an Iranian mine and that this can be attributed to Iran, which, in violation of the rules of naval warfare, had laid mines in international waters without notifying neutral shipping. The fact that in the days after the accident mines were found in the immediate neighbourhood which were moored, carried the distinctive serial numbering of Iranian mines and had evidently been laid recently, proves in my view beyond any reasonable doubt that the Samuel B. Roberts was struck by an Iranian mine. It is another question whether the Samuel B. Roberts was specifically targeted. The fact that the mines found were not yet encrusted with marine growth and thus had been laid recently might be an indication that this was the case. However, since no more precise data are available, as for example the exact date of the minelaying, that question cannot be answered definitively. [p 264]

57. Nevertheless, the question must be answered whether the fact that the United States could with good reason assume that Iran was responsible for the mining of the Samuel B. Roberts entitled it to take military action against the Salman and Nasr platforms. In this respect, it may be recalled that the attacks on the platforms were part of a larger operation, code named "Praying Mantis", which was also directed against the Iranian Navy. Whether that part of the operation was wrongful under general international law is not relevant for the present case, the scope of which is confined to the destruction of the platforms.

58. The reasons given by the United States for attacking the platforms can be summarized in the words of General Crist in a statement, which was provided by the United States as an exhibit:
"I believed the best way of undermining Iran's ability to attack US forces was to degrade their ability to observe our forces — in effect put out their eyes. Iran's offshore oil platforms were extremely valuable eyes for directing and supporting attacks against us . . . They were used as a staging facility for attacks by Iranian forces in Gulf Shipping." (Counter-Memorial of the United States, Exhibit 44.)

With regard to this argument, it may be relevant to recall what the Court said in the Nicaragua case, and which was quoted in paragraph 49 above, viz. that the Court has to assess whether the measures presented as being designed to protect these interests are not merely useful but "necessary".

59. I share the Court's view that the evidence concerning the military functions of the platforms is not entirely satisfactory, in particular with regard to the Salman and Nasr platforms, which were the target of the United States actions after the mining of the Samuel B. Roberts. Whether they had such an innocuous character as Iran contends may be open to doubt. But I do not find convincing the evidence submitted by the United States to testify to their offensive character. In this regard, it is also worth mentioning that the United States never referred in its many diplomatic demarches to the platforms as an important element in the threat to neutral shipping, whereas it regularly referred to Silkworm missiles, mining, attacks by helicopters and gunboats.

60. This raises the question whether the destruction of the Salman and Nasr platforms can be considered with good reason the most appropriate reaction to the mining of the Samuel B. Roberts, in particular in view of the fact that there is no indication that these platforms played a role in the laying of the mines and in staging the attack against the Samuel B. Roberts. [p 265]

61. The International Law Commission's Rapporteur on State Responsibility, Roberto Ago, wrote in 1980 concerning self-defence as a circumstance precluding wrongfulness:

"In fact, the requirements of the 'necessity' and 'proportionality' of the action taken in self-defence can simply be described as two sides of the same coin. Self-defence will be valid as a circumstance precluding the wrongfulness of the conduct of the State only if that State was unable to achieve the desired result by different conduct involving either no use of armed force at all or merely its use on a lesser scale." (Yearbook of the International Law Commission, 1980, Vol. II, Part One, p. 69.)

62. Regardless of whether the mining of the Samuel B. Roberts constituted an armed attack on the United States, entitling it to act in self-defence, the relevant question is whether the United States was unable to achieve the desired result (the protection of its essential security interests) by different conduct, involving either no use of armed force at all or merely its use on a lesser scale, for example by actions against naval vessels known to be involved in minelaying (such actions were part of operation "Praying Mantis", but their lawfulness is beyond the Court's jurisdiction).

In view of the uncertainty about the platforms' role in the minelaying and the severe damage inflicted upon Iran's economic interests, I am not convinced that the destruction of the Salman and Nasr platforms is in conformity with the standard just mentioned or that it can be called a measure necessary to protect the essential security interests of the United States. I find it hard to avoid the impression that in reality a punitive intent prevailed.
63. In conclusion (and without having to scrutinize — as the Court did — whether all requirements of the law of self-defence are fulfilled), I am of the view that the attacks on the oil platforms cannot be seen as measures necessary to protect the essential security interests of the United States, even if these interests are construed in a broad sense. With regard to the destruction of the Reshadat platform, the attack on the Sea Isle City cannot be said with sufficient certainty to be attributable to Iran; in the case of the Samuel B. Roberts the mining in my view is attributable to Iran, but the destruction of the Salman and Nasr platforms cannot be seen as an appropriate, in the sense of a necessary and proportionate, response.

(Signed) Pieter H. Kooijmans.

[p 266]
DISSENTING OPINION OF JUDGE AL-KHASAWNEH

Putting two distinct findings in one paragraph unusual and unfortunate — Leaves no choice but to accept paragraph as a whole or reject it — Vote against operative paragraph because reasoning and conclusion on freedom of commerce unpersuasive and incorrect — Nevertheless accepts in principle finding relating to essential security measures — Majority approach too formalistic — 1955 Treaty protects freedom of commerce — Factually oil continued to flow to the United States after embargo — Indirect trade law concepts ill-suited as a yardstick for measuring treaty-protected commerce — No basis for distinction between direct and indirect commerce — relevance of Article VIII of the 1955 Treaty — United States counter-claim admissible subject to problems of attri-butability to Iran — Asymmetry of evidence — Appropriate to deal with non-use of force — Judgment should be more concerned with clarity than presentational aspects.

1. It is unusual from the point of view of established drafting technique and unfortunate from that of logical coherence that the dispositif of the present Judgment amalgamates in a single paragraph (paragraph 125 (1)) two separate findings that do not depend on each other for their validity or soundness and hence leaves us with no choice but to accept the paragraph as a whole or to reject it.

2. Those findings are:

(a) That the United States actions against Iranian oil platforms in 1987 and 1988 cannot be justified as measures necessary to protect the essential security interests of the United States under Article XX, paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran as interpreted in the light of international law on the non-use of force.

(b) That nevertheless, those actions do not constitute a violation of the obligations of the United States under Article X, paragraph 1, of the 1955 Treaty regarding freedom of commerce between the territories of the two parties.

This, being the formal structure of the operative paragraph, I have no choice but to vote against the paragraph as a whole, for whilst I concur in principle with the first finding regarding Article XX, paragraph 1 (d), [p 267] I find the reasoning and the finding regarding Article X, paragraph 1, of the Treaty unpersuasive and, with respect, incorrect.

3. In the first place, what is at issue here is not whether oil from the destroyed platforms was impeded from being traded between the territories of the two Parties at the time of the attacks, but rather that the possibility of such oil flowing and being traded was impeded. The 1955 Treaty protects the freedom of commerce, which must mean commerce actual and potential. The Court could not have been clearer when it said in the 1996 Judgment:

"50. The Court should not in any event overlook 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." (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 50.)

4. Secondly, it seems that, factually, Iranian oil continued to flow to the United States even after the adoption of Executive Order 12613 dated 29 October 1987, for an exception was made in that Order in Section 2(b) which reads: "[t]he prohibition contained in Section 1 shall not apply to: . . . (b) petroleum products refined from Iranian crude oil in a third country". It has been argued that such oil undergoes a metamorphosis upon being refined and mixed in third countries so that the final product could no longer be regarded as Iranian, but the Executive Order itself by speaking of "petroleum products refined from Iranian crude oil" clearly shows that this final product was viewed by the United States as easily traceable back to its Iranian origin. Moreover, international trade law concepts are ill-suited to be used as a yardstick against which a treaty-protected freedom of commerce can be measured. For such a treaty-protected freedom to be infringed it is sufficient to show that a flow of Iranian oil into the United States in the form of refined products and a correspondent outflow of capital that ultimately reached Iran to pay for such products took place. There is ample evidence that this was the case.

5. Thirdly, the reasoning is singularly unpersuasive in its attempts at showing a distinction between protected direct commerce and unprotected indirect commerce. There is nothing in the 1955 Treaty or in similar treaties to which the United States is party to suggest that only direct commerce was protected. Indeed a simple textual analysis of the provisions of the 1955 Treaty with the aim of ascertaining the definition of the [p 268] concept of freedom of commerce used therein would reveal that the Treaty contemplated the possibility of the products of one State reaching the territory of the other indirectly. Thus Article VIII provides:

"1. Each High Contracting Party shall accord to products of the other High Contracting Party, from whatever place and by whatever type of carrier arriving, and to products destined for exportation to the territories of such other High Contracting Party, by whatever route and by whatever type of carrier, treatment no less favourable than that ..." (emphasis added).

6. I believe the arguments just made will show that the majority in this Court have followed a formalistic and disconnected approach in their reasoning with regard to the violation of the United States of its obligations under Article X, paragraph 1, on the freedom of commerce. Such an approach is not supported by the text of the 1955 Treaty, and seems to be based on assumptions that are factually wrong and do not correspond to the realities of trade in oil. Moreover, such an approach seems to detract from aspects of the Court's jurisprudence and I have in mind both the Oscar Chinn case (Judgment, P. C.I. J., Series AIB, No. 63, p. 65) and the 1996 Judgment (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 50.)

7. A consequence of the narrow approach that the majority followed was that the United States counter-claim was also rejected. It would have been much better had the Court admitted both the Iranian claim and the United States counter-claim. Having said this I should hasten to add that the problems relating to the United States counter-claim stem from problems of attributability to Iran, problems that emanate in part from an asymmetry in the Iranian and United States position with regard to evidence, for in the case of the latter, there is no question of the attribution of attacks against the oil platforms to the United States, while in the case of Iran, its denial of responsibility for specific acts and the presence of another actor, Iraq, would compound problems of attribution. Be this as it may, there is no reason why specific elements of the United States claim cannot be upheld if the hurdle of attribution is overcome.

8. Lastly, I stated above (para. 2) that I concurred with the first finding of the Court, namely that the United States actions cannot be justified as measures necessary to protect the essential security interests of the United States under Article XX, paragraph 1 (d), of the Treaty as inter-preted in the light of international law on the non-use of force. It has been suggested that devoting a large part of the Judgment to a discussion of the concept of non-use of force is inappropriate and unnecessary for disposing of the case besides the risk this runs of going beyond the limits [p 269] of the Court's jurisdiction which are extremely narrow. Nothing is more debatable.

9. The determining factor is the United States resort to armed force as distinct from other measures such as the imposition of an embargo that fall short of armed force. Whilst the legality of measures short of armed force are open to scrutiny against the twin criteria of whether they were essential and reasonable to the risk perceived, when armed force is resorted to a discussion of that concept in terms of proportionality and necessity becomes interwoven with the concept of necessary measures. I find therefore that it was appropriate for the Court to have clarified those aspects in its reasoning. I do not feel that the ultra petita rule was infringed nor that the concept of lex specialis (assuming that the 1955 Treaty was one) would operate to exclude the operation of rules of international law that have a peremptory character.

10. What I find both regrettable and disconcerting is that the Court has pronounced on those central questions of international law in the best traditions of oratio obliqua, thus the United States resort to armed force resulting in the destruction of the oil platforms is referred to as "actions". Similarly while the Court makes it clear that what is meant by international law on the non-use of force is both Charter law and customary law (Judgment, para. 42), a careful reading of the Judgment is needed to find the link between the reasoning and the operative paragraph. A court of law should be more concerned with the clarity of its judgments than with the presentational aspects of those judgments.

(Signed) Awn Al-Khasawneh.

[p 270]
SEPARATE OPINION OF JUDGE BUERGENTHAL

Agreement with Court's rejection of Iran's claim against the United States under Article X, paragraph 1, of the 1955 Treaty — Agreement, mutatis mutandis, with rejection of United States counter-claim under same Article — Violation of non ultra petita rule by Court — Erroneous finding regarding relevance of Article XX, paragraph 1 (d), has no place in dispositif — Court's lack of jurisdiction to interpret Article XX, paragraph 1 (d), once it held that United States did not violate Article X, paragraph 1 — Article 31, paragraph 3 (c), of Vienna Convention on the Law of Treaties not a valid basis for interpretation of Article XX, paragraph 1 (d), of Treaty by reference to other rules of international law not subject to Court's jurisdiction — Flawed fact-finding process — Undefined standard of proof.

1. The Court's Judgment in this case adopts two decisions with which I agree and one with which I disagree. That is, I associate myself with the Court's holdings that the United States of America did not breach Article X, paragraph 1, of the 1955 Treaty between it and Iran, and that, therefore, Iran's claim for reparation must be rejected. I also agree with the Court's decision rejecting the counter-claim interposed by the United States against Iran. In my view that decision of the Court is justified for the very reasons, mutatis mutandis, that led the Court to hold, in paragraph 1 of the dispositif, that the United States did not breach the obligations it owed Iran under Article X, paragraph 1, of the 1955 Treaty.

2. But the Court also purports to find in paragraph 1 of the dispositif of the Judgment that the actions of the United States, in attacking certain Iranian oil platforms, cannot be justified under Article XX, paragraph 1 (d), of the Treaty "as interpreted in the light of international law on the use of force". That pronouncement has no place in the Judgment, much less in the dispositif, and I therefore dissent from it for the reasons set out in this separate opinion.

***

3. The Court's Judgment, as it relates to Article XX, paragraph 1(d), is seriously flawed for a number of reasons. First, it makes a finding with regard to Article XX, paragraph 1 (d), of the 1955 Treaty that violates the non ultra petita rule, a cardinal rule governing the Court's judicial [p 271] process, which does not allow the Court to deal with a subject in the dispositif of its judgment that the parties to the case have not, in their final submissions, asked it to adjudicate. Second, the Court makes a finding on a subject which it had no jurisdiction to make under the dispute resolution clause — Article XXI, paragraph 2 — of the 1955 Treaty, which was the sole basis of the Court's jurisdiction in this case once it found that the United States had not violated Article X, paragraph 1, of the Treaty. Third, even assuming that the Court had the requisite jurisdiction to make the finding regarding Article XX, paragraph 1 (d),'\t& interpretation of that Article in light of the international law on the use of force exceeded its jurisdiction. Finally, I believe that the manner in which the Court analyses the evidence bearing on its application of Article XX, paragraph 1 (d), is seriously flawed.

I. Violation of the Non Ultra Petita Rule

4. In its Judgment, the Court holds that the United States did not breach Article X, paragraph 1, of the 1955 Treaty. In their respective submissions, Iran asked the Court to find that the United States attacks on Iran's oil platforms violated Article X, paragraph 1, of the Treaty, whereas the United States asked the Court to reject that claim. In deciding the question dividing the Parties, Article XX, paragraph 1 (d), of the Treaty would have been relevant only if the Court had concluded that the United States had violated Article X, paragraph 1. That is, had the Court found such a violation, the question would then arise whether the measures taken by the United States were nevertheless not "precluded" by virtue of the provisions of Article XX, paragraph 1 (d). That Article reads as follows:

"1. The present Treaty shall not preclude the application of measures:
………………………………………………………………………………………………
(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

5. In other words, Article XX, paragraph 1 (d), is intended to come into play or is relevant only if a party to the Treaty is found to have violated one of its substantive provisions. In that case, Article XX, paragraph 1 (d), might provide an excuse or defence against the charge of a [p 272]
violation, provided, of course, that the challenged measures satisfied the requirements of that Article. This function of Article XX, paragraph 1 (d) — its sole function — was recognized by the Court in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). In that case, when interpreting a comparable provision of the United States-Nicaragua Treaty of 1956, the Court said:

"Since Article XXI of the 1956 Treaty contains a power for each of the parties to derogate from the other provisions of the Treaty, the possibility of invoking the clauses of that Article must be considered once it is apparent that certain forms of conduct by the United States would otherwise be in conflict with the relevant provisions of the Treaty." (Merits, Judgment, I.C.J. Reports 1986, p. 117, para. 225.)

Moreover, in its Judgment on the Preliminary Objection in the instant case (I.C.J. Reports 1996 (II), p. 811, para. 20), the Court characterized the provision as a "possible defence on the merits to be used should the occasion arise". Obviously, such an occasion would arise only if a party to the Treaty is found to have violated some other provision of the Treaty and sought to invoke Article XX, paragraph 1 (d), as a. defence.

6. All this does not mean that in analysing the case, the Court is debarred in principle from dealing first with Article XX, paragraph 1(d), if one of the Parties relies on that Article as a defence. But once the Court concludes that Article XX, paragraph 1 (d), does not provide a valid defence and makes the further finding that Article X, paragraph 1, has not been violated, the non ultra petita rule prevents the Court from making a specific finding in its dispositif that the challenged action, while not a violation of Article X, paragraph 1, is nevertheless not justified under Article XX, paragraph 1 (d), when the Parties in their submission did not request such a finding with regard to that Article, which they did not do in this case. The order in which the Court takes up consideration of the Articles — whether it looks at Article X, paragraph 1, or Article XX, paragraph 1 (d), first — is irrelevant to the above result as far as the non ultra petita rule is concerned.

7. This conclusion finds support in the following explanation provided by the Court in the Arrest Warrant case, decided in 2002, which referred to:

"the well-established principle that 'it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in [p 273] those submissions' (Asylum, Judgment, I.C.J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable." (I.C.J. Reports 2002, pp. 18-19, para. 43; emphasis added.)

As this language indicates, by not abstaining "from deciding points not included in [the] submissions", the Court in the instant case violated the non ultra petita rule and, hence, was not entitled to make a finding relating to Article XX, paragraph 1 (d), of the Treaty.

8. The non ultra petita rule has a direct bearing on the scope of the Court's jurisdiction. Since this Court's jurisdiction in a particular case is strictly limited to the consent given by the parties to a case, the function of the non ultra petita rule is to ensure that the Court does not exceed the jurisdictional confines spelled out by the parties in their final submissions. That is what is meant by the Court's statement in the Asylum case, quoted above, that "it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions". Fitzmaurice puts the matter in the following terms:

"The non ultra petita rule is not only an inevitable corollary — indeed, virtually a part of the general principle of consent of the parties as the basis of international jurisdiction — it is also a necessary rule, for without it the consent principle itself could constantly be circumvented."FN1

------------------------------------------------------------------------------------------------------------ Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. II, p. 529 (1986). See also, Shabtai Rosenne, The Law and Practice of the International Court of Justice, Vol. I, p. 173 (1997).
------------------------------------------------------------------------------------------------------------

The point Fitzmaurice makes about the risk resulting from the failure of the Court to adhere to the non ultra petita rule is particularly relevant to the Court's approach in this case.

9. That is to say, notwithstanding the fact that the Parties in their final submissions asked the Court to decide only whether or not the actions of [p 274] the United States violated Article X, paragraph 1, of the Treaty, a question it resolves in favour of the United States, the Court proceeds to convert a provision of the Treaty — Article XX, paragraph 1(d) — which was clearly relevant only as a defence had there been a violation of Article X, paragraph 1, into an opportunity to use Article XX, paragraph 1 (d), in order to render a decision on the international law on the use of force and thus to find the actions of the United States in breach of that law. This judicial modus operandi amounts to clear violation of the non ultra petita rule. In my opinion, the Court's pronouncement on the issue not raised in the submissions of the Parties is not a statement entitled to be treated as an authoritative statement of the law applicable to the actions of the United States.

10. It must be remembered, in this connection, that in the Court's practice the contents of the dispositif is that part of the judgment which alone is binding on the parties by virtue of Article 59 of the Court's Statute. Everything else in the judgment is merely the reasoning that may or may not support the finding made in the dispositif. Hence, when the Court includes matters in the dispositif that it was not asked in the submissions of the parties to adjudicate, it exceeds its jurisdiction. This is what we have here as far as the Court's ruling on Article XX, paragraph 1 (d) , is concerned.


II. Lack of Jurisdiction

11. Closely related to the issue that has just been discussed is the fact that this case was referred to the Court under Article XXI, paragraph 2, of the 1955 Treaty. The Court has no other basis of jurisdiction in this case. That point is not in dispute between the Parties. Article XXI, paragraph 2, reads as follows:

"Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means."

12. As we have seen, this dispute was referred to the Court by Iran on the ground that the action of the United States in attacking certain Iranian oil platforms violated Article X, paragraph 1, of the Treaty. The United States, in defending itself against this charge, contended that it had not violated the Article and that, even if it had, the measures could [p 275] not be deemed to amount to a Treaty violation since they were not "precluded" under Article XX, paragraph 1 (d)FN2.

---------------------------------------------------------------------------------------------------------------------FN2 That Article reads as follows:

" 1. The present Treaty shall not preclude the application of measures:
……………………………………………………………………………………………
(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

Only the last phrase of subparagraph 1 (d) is relevant to this case, the first part not having been invoked.
---------------------------------------------------------------------------------------------------------------------

13. Article XX, paragraph 1 (d), is designed to come into play or becomes relevant only in the event that the Court determines that a party to the Treaty has violated another provision thereof, in which case it might serve as a defence to or justification for the action that was found to conflict with the Treaty. Apart from the fact that that reading of Article XX, paragraph 1 (d), is obvious on its face, this Court has on at least two prior occasions so interpreted it. Thus, as we have already noted, in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court described a comparable provision of the United States-Nicaragua Treaty of 1956, as containing "a power for each of the parties to derogate from the other provisions of the Treaty" (Merits, Judgment, I.C.J. Reports 1986, p. 117, para. 225). And in its Judgment on the Preliminary Objection in the instant case (I.C.J. Reports 1996 (II), p. 811, para. 20), the Court characterizes the provision as a "possible defence on the merits to be used should the occasion arise". That, of course, is the only possible interpretation of the clause that can legitimately be made. It leads to the obvious conclusion that the clause has no relevance other than to come into play when another Article of the Treaty is found by the Court to have been violated. In short, Article XX, paragraph 1 (d), has no independent significance.

14. Hence, once the Court had found, as it has in this case, that Article X, paragraph 1, of the 1955 Treaty had not been violated by the United States, there no longer exists a dispute within the meaning of Article XXI, paragraph 2, of the Treaty between the United States and Iran. Consequently, the Court lacked jurisdiction to rule that the action

"cannot be justified as measures necessary to protect the essential security interest of the United States under Article XX, paragraph 1 (d), of the 1955 Treaty ... as interpreted in the light of international law on the use of force" (Judgment, para. 125 (1)). [p 276]

The Court would only have had the requisite jurisdiction to make this finding if, apart from the 1955 Treaty, it did have some other jurisdictional basis. But this it clearly did not have.

15. In its Judgment, the Court does not deny the relevance to its jurisdiction of its pronouncements in the Nicaragua case and in the 1996 Judgment on the Preliminary Objection in the instant case. As a matter of fact, it sees no reason to depart from them (see paras. 33 and 34). In support of its conclusion that it has jurisdiction to make a finding regarding the applicability and scope of Article XX, paragraph 1 (d), of the Treaty, even after it has determined that there has been no violation of Article X, paragraph 1, of the Treaty, the Court advances a number of arguments. First, it bases itself on the contention of the United States that, if the Court were to find that the United States had a valid defence under Article XX, paragraph 1 (d), "it must hold that no breach of Article X, paragraph 1, of the Treaty has been established" (para. 34). This argument prompts the Court to assert, in support of its jurisdiction, that in order to uphold the claim of Iran, it must be satisfied that the actions of the United States, which Iran contended violated Article X, paragraph 1, did breach that Article and that these actions were not justified under Article XX, paragraph 1 (d). Second, in considering the order in which these questions are taken up, that is, whether or not to follow the order adopted by the Court in the Nicaragua case, which dealt with Article X, paragraph 1, first, or to start with Article XX, paragraph 1 (d), the Court concludes that the approach adopted in the Nicaragua case was not dictated by the "economy of the Treaty", and that it was therefore free to reverse that order. Third, the Court points to the fact that the United States argued in support of its claim, that its actions satisfied the provisions of Article XX, paragraph 1 (d), and that that Article was a substantive provision which defines and limits the obligations of the Parties, comparable to and on the same level as Article X, paragraph 1.

16. None of these arguments convince. First, there is the Court's reliance on the contention of the United States that, if the Court were to find that the measures taken by the United States satisfied the requirements of Article XX, paragraph 1 (d), it would have to dismiss the claim with regard to Article X, paragraph 1, whereas to rule in favour of Iran, it would have to find a violation of Article X, paragraph 1, and no valid defence under Article XX, paragraph 1 (d). That is all true, of course, but it is irrelevant to the issue of jurisdiction in this case, precisely because of the fact that Iran invoked the Court's jurisdiction by charging a violation of Article X, paragraph 1. That was the sole issue ultimately to be determined unless and until the Court found that there had been a violation of that Article. [p 277]

17. Second, by deciding to reverse the order and by taking up consideration first of Article XX, paragraph 1 (d), the Court did not overcome its lack of jurisdiction to make separate findings under that Article once it had concluded, whether before or after dealing with one or the other of these Articles, that Article X had not been violated. Here it should not be forgotten that in its Judgment on the Preliminary Objection in the instant case, the Court 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" (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)). We are here therefore not dealing with a situation in which the Court, having acquired jurisdiction at the time an action was instituted, cannot be divested of that jurisdiction by later external events. (See, for example, the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), I C.J. Reports 1998, pp. 23-24, para. 38.) In the Lockerbie case, the external event was a later United Nations Security Council resolution. Similar external events came into play in the two other cases which are frequently cited as authority to uphold the proposition that jurisdiction once acquired is not divested by subsequent events. (See Nottebohm (Liechtenstein v. Guatemala), Preliminary Objec-tion, Judgment, I.C.J. Reports 1953, p. 123; and Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142.) The matter was put as follows by the Court in the Nottebohm case, supra, where it said: "An extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established." But what we have in the present case is not an extrinsic fact or event but an event or fact intrinsic to the Judgment itself: the Court, by its own ruling under Article X, paragraph 1, of the 1955 Treaty has divested or deprived itself of jurisdiction to make independent findings with regard to Article XX, paragraph 1 (d).

18. Finally, the Court's reliance on the United States argument that Article XX, paragraph 1 (d), was a substantive provision and that its action satisfied the provisions of the Article is misplaced. The United States did not by that contention confer jurisdiction on the Court to make a separate finding as to whether the measures of the United States satisfied the requirements of Article XX, paragraph 1 (d), once the Court found that these measures did not violate Article X, paragraph 1, of the Treaty. In other words, the unstated implication in the Court's argument that the United States by that proposition submitted itself to the Court's jurisdiction is, in my view, simply untenable. This is certainly not a case of an implicit forum prorogatum, but a litigation argument in defence, advanced by the United States solely in case the Court were to find a violation of Article X, paragraph 1. (See Anglo-Iranian Oil Co. (United [p 278] Kingdom v. Iran), Preliminary Objection, I.C.J. Reports 1952, pp. 93-114.)

19. To put it bluntly, here the Court takes a giant intellectual leap lacking a valid judicial and jurisdictional basis that propels it improperly from an analysis of a Treaty provision — Article XX, paragraph 1 (d) — to a formal holding in the operative part of the Judgment that the Article provides no justification for the action of the United States, which action the Court declares in the same operative part not to constitute a violation of the very Article of the Treaty — Article X, paragraph 1 — that was the sole basis of Iran's claim in this case. In this creative fashion the Court stigmatizes the actions of the United States as a breach of international law on the use of force without having the requisite jurisdiction to make such a ruling.

III. Erroneous Reliance on International Law on the Use of Force

20. Even if one were to accept the Court's view that it had jurisdiction to make a specific ruling on Article XX, paragraph 1 (d), it would still have to be emphasized that its interpretation of that provision in the light of international law on the use of force exceeded its jurisdiction. In para-graph 41 of the Judgment, the Court concludes that

"[it] cannot accept that Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force".

21. The Court's assertion that Article XX, paragraph 1 (d), must be interpreted by reference to international law on the use of force, leads it to conclude that, if it were to find that the action of the United States violated international law on the use of force, it would have to rule that such use of force cannot be justified under Article XX, paragraph 1 (d), of the 1955 Treaty. In reaching this conclusion, the Court relies principally on Article 31, paragraph 3 ( c), of the Vienna Convention on the Law of Treaties and on Article I of the 1955 Treaty. Article 31, paragraph 3 (c), of the Convention provides that the interpretation of treaties must take into account "any relevant rules of international law applicable in the relations between the parties".

22. The problem with the Court's reliance on this provision of the Vienna Convention is that, while the rule is sound and undisputed in [p 279] principle as far as treaty interpretation is concerned, it cannot have the effect of allowing the Court to take account, as it does here, of those "relevant rules of international law applicable between the parties", which the parties to the dispute have not submitted to the Court's jurisdiction under the dispute resolution clause of the 1955 Treaty. That is, the principles of customary international law and whatever other treaties the parties to a dispute before the Court may have concluded do not by virtue of Article 31, paragraph 3(c), become subject to the Court's jurisdiction. This is so whether or not they might be relevant in the abstract to the interpretation of a treaty with regard to which the Court has jurisdiction. Whether one likes it or not, that is the consequence of the fact that the Court's jurisdiction, in resolving disputes between the parties before it, is limited to those rales of customary international law and to those treaties with regard to which the parties have accepted the Court's jurisdiction. If it were otherwise, a State that has submitted itself to the Court's jurisdiction for the interpretation of one treaty would suddenly find that it has opened itself up to judicial scrutiny with regard to other more or less relevant treaties between the parties to the dispute that are not covered by the dispute resolution clause of the treaty which conferred jurisdiction on the Court in the first place. This would be the natural consequence of the Court's reliance in this case on Article 31, paragraph 3(c), in order to interpret Article XX, paragraph 1 (d). Such a result would conflict with the consensual basis of the Court's jurisdiction and would jeopardize the willingness of States to accept the Court's jurisdiction for the adjudication of disputes relating to the interpretation or application of specific rules of international law.

23. It should be emphasized, in this connection, that even if the otherwise "relevant rules of international law" happened to be proclaimed in the Charter of the United Nations, for example, the Court would still lack the power to rely on such rules, unless the parties before it had accepted its jurisdiction to adjudicate disputes relating to the interpretation or application of these Charter provisions. Thus, in order for the Court to conclude that the use of force, sought by one of the parties to a bilateral treaty to be excused in reliance on it, could not have been con-templated by the parties to that treaty because of its incompatibility with a provision of the United Nations Charter, the Court would first have to make a preliminary determination that the challenged use of force was in breach of the Charter provision. But that it would be entitled to do only if the parties had agreed to confer jurisdiction on the Court to interpret and apply the Charter in a dispute between them. It would be irrelevant, in that connection, whether the Charter provision in question might also be deemed to be a jus cogens rule. [p 280]

24. In the instant case, the Court lacks the requisite jurisdiction to make such determination, whether or not in reliance on the United Nations Charter or customary international law. It follows that the Court errs when it asserts that it may, on the basis of the general principle of treaty interpretation codified in Article 31, paragraph 3 (c), of the Vienna Convention, interpret Article XX, paragraph 1 (d), of the 1955 Treaty in light of international law on the use of force or any other international law rules with regard to which the United States has not accepted the Court's jurisdiction.

25. The Court, as noted above, also relies on Article I of the 1955 Treaty, and declares that
"[i]t is hardly consistent with Article I to interpret Article XX, paragraph 1 (d), to the effect that the 'measures' there contemplated could include even an unlawful use of force by one party against the other" (para. 41).

Article I provides only that "There shall be firm and enduring peace and sincere friendship between the United States of America and Iran." In its 1996 Judgment on the Preliminary Objection in the instant case, the Court had found that the Article's sole function "is such as to throw light on the interpretation of the other Treaty provisions" (I.C.J. Reports 1996 (II), p. 815, para. 31). It is difficult to see what light Article I can throw on the interpretation of Article XX, paragraph 1 (d). In principle, any use of force, whether lawful or not, would on its face appear to be inconsistent with the proclaimed professions of enduring peace and friendship in Article I. The same would be true of many other measures not involving the use of force. They would nevertheless not be precluded under Article XX, paragraph 1 (d), if they were necessary to protect a State's "essential security interests". That, of course, is the critical question which needs to be answered. But it may not be answered by the Court's ruling that the action is "unlawful" in light of international law on the use of force, when its jurisdiction in this case does not extend to that law.

26. To demonstrate how far afield the Court strays in this case from the jurisdiction conferred on it by Article XXI, paragraph 2, of the 1955 Treaty, one need only to read what the Court has to say in paragraph 39 of the Judgment. Here the Court notes first that the United States argued that

"the Court need not address the question of self-defence . . . [T]he scope of the exemption provided by Article XX, paragraph 1 (d), is not limited to those actions that would also meet the standards for self-defence under customary international law and the United Nations Charter."

The Court answers this argument in paragraph 39 by emphasizing that the United States [p 281]

"does not contend that the Treaty exempts it, as between the parties, from the obligations of international law on the use of force, but simply that where a party justifies certain action on the basis of Article XX, paragraph 1 (d), that action has to be tested solely against the criteria of that Article, and the jurisdiction conferred on the Court by Article XXI, paragraph 2, of the Treaty goes no further than that".

27. Of course, the United States does not advance the contention the Court attributes to it. For the United States the question before the Court is not whether the Treaty exempts the Parties from the obligations of the United Nations Charter or international law on the use of force, but whether the Court has jurisdiction in this case to address the scope and nature of these obligations, either in the abstract or in relation to the 1955 Treaty. And the answer is that it does not, for the United States did not in Article XXI, paragraph 2, of the Treaty confer jurisdiction on the Court to adjudicate the question whether its actions conformed or not to its obligations under the United Nations Charter or international law. Consequently, it is improper for the Court, given the context of the argument of the United States, to assume that the United States agreed with the Court's view regarding the interpretation of Article XX, paragraph 1 (d), which it clearly did not.
28. The above-mentioned substantive rules of international law cannot be brought into this litigation through the back door by invoking Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties in the absence of specific jurisdiction conferred by the Parties on the Court to rule on them. It follows that the Court's conclusion, expressed in paragraph 40, that "[i]n the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (dy\ is untenable, to say the least. It amounts to an unwarranted distortion of the meaning of the jurisdiction conferred on the Court under Article XXI, paragraph 2, of the Treaty, for it fails to seriously address the jurisdictional restraints on the Court's freedom of treaty interpretation, given the consensual nature of the Court's jurisdiction.

29. In paragraph 42 of its Judgment, the Court professes to be

"satisfied that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force, by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law". [p 282]

Aware of the jurisdictional problems implicit in this conclusion, the Court hastens to add that "its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty". But these words cannot gloss over the reality of what the Court is doing in this case: on the basis of jurisdiction conferred on it in Article XXI, paragraph 2, to interpret and apply the 1955 Treaty, the Court proceeds to apply international law on the use of force simply because that law may also be in dispute between the parties before it and bears some factual relationship to the dispute of which the Court is seised. That it may not do.

30. That the Court is doing precisely what it may not do becomes even more evident when, in further seeking to justify its decision to interpret Article XX, paragraph 1 (d),hy reference to international law on the use of force, it notes that "the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force" (para. 37). To this end, the Court emphasizes that

"At the time of those actions, neither Party made any mention of the 1955 Treaty. The contention of the United States at the time was that its attacks on the oil platforms were justified as acts of self-defence, in response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action to the Security Council under Article 51 of the United Nations Charter. Before the Court, it has continued to maintain that it was justified in acting as it did in exercise of the right of self-defence; it contends that, even if the Court were to find that its actions do not fall within the scope of Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and appropriate actions in self-defence." (Para. 37.)

It should require no argument that a State, which gives notice to the Security Council under Article 51, has no reason there to rely on or to invoke also the provisions of a bilateral commercial treaty, and will quite naturally attempt to justify its conduct by reference to the provisions of that Article. Moreover, such a State is certainly free in the Security Council or in some other forum to advance legal arguments or defences different from those it makes in a specific case in this Court under a dispute resolution clause of a bilateral treaty. This does not mean, however, that all other defensive arguments it has asserted in other forums may therefore now be scrutinized by the Court in this case and serve to justify its assertion of jurisdiction with regard to them.

31. As a matter of fact, the Court's extensive quotations from the arguments advanced by the United States in the United Nations Security [p 283] Council with regard to the armed conflict in the Persian Gulf (see, for example, paragraphs 48 and 67) prove, if proof were necessary, that the Court in this case is acting as if it had jurisdiction to judge the action of the United States in attacking the platforms by reference to specific provisions of the Charter of the United Nations or international law. It is much too easy and too transparent an attempt for the Court to gloss over this fact by claiming that

"In the present case, the question whether the measures taken were 'necessary' overlaps with the question of their validity as acts of self-defence. As the Court observed in its decision of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence (see I.C.J. Reports 1986, p. 103, para. 194, and paragraph 74 below)." (Para. 43.)

32. It is worth noting that the above quote from the Nicaragua case comes from that part of the Nicaragua Judgment in which the Court was exercising its jurisdiction under customary international law rather than the United States-Nicaragua Treaty of 1956. The Court's failure to apply the language of Article XX, paragraph 1 (d), in its analysis of the evidence relating to the challenged United States measures and its focus, instead, on international law on the use of force has improperly transformed the case into a dispute relating to the use of force under international law rather than one calling for the interpretation and application of a bilateral treaty with regard to which it alone had jurisdiction.

IV. Defective Fact-Finding Process

33. Even assuming that the Court were correct in interpreting Article XX, paragraph 1 (d), in light of international law on the use of force, it is telling that the Court does not really analyse the evidence presented by the United States by reference first to the specific language and purpose of the Article. That, after all, would be the appropriate way to proceed before enquiring whether the measures were compatible with international law on the use of force, if only because such an enquiry might throw some light on the factual considerations the parties to the 1955 Treaty might have thought relevant to the interpretation and application of Article XX, paragraph 1 (d). Instead, the Court concludes that

"its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be jus-[p 284]tified under that paragraph was or was not an unlawful use of force, by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law" (para. 42).

34. This said, the Court proceeds immediately to examine the facts relevant to the application of that Article by reference to "the principle of the prohibition in international law of the use of force, and the qualification to it constituted by the right of self-defence" (para. 43). Noting that Article XX, paragraph 1 (d), permits a country to take certain measures, which it deems "necessary" for the protection of its essential security interests, the Court quotes from the holding in the Nicaragua case, that it was not enough for these measures to "tend to protect the essential security interests of the party taking them", but that they had to "be 'necessary' for that purpose". Moreover, whether "a given measure is 'necessary' is not purely a question for the subjective judgment of the party but may be assessed by the Court". Finally, still in the same paragraph, the Court declares that

"In the present case, the question whether the measures taken were 'necessary' overlaps with the question of their validity as acts of self-defence. As the Court observed in its decision of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence (see I.C.J. Reports 1986, p. 103, para. 194, and paragraph 74 below)." (Para. 43.)

35. The Court's language, quoted above, creates the impression that the Court in the Nicaragua case had analysed the comparable Article in the United States-Nicaragua Treaty of 1956 as the Court now analyses Article XX, paragraph 1 (d). That is not true. In the Nicaragua case, it will be recalled, the Court had two bases of jurisdiction: the 1956 Treaty, which contained a dispute resolution clause comparable to Article XXI, paragraph 2, of the 1955 Treaty, and the optional jurisdiction clause set out in Article 36, paragraph 2, of the Statute of the Court. In passing on the legality of the measures taken by the United States against Nicaragua, the Court there was very careful to separate its examination of the legality of these measures under international law, with regard to which it has jurisdiction under Article 36, paragraph 2, of the Statute, from the question whether these measures were justified under the 1956 Treaty. Its analysis of the latter issue focused on the specific language of the applicable Treaty provision, the one comparable to Article XX, paragraph 1 (d), of the 1955 Treaty. (Compare I.CJ. Reports 1986, p. 97, para. 183, with ibid., p. 140, paras. 280-282.) [p 285]

36. It is therefore worth noting that the language from the Nicaragua case concerning self-defence, which the Court in the instant case ties to its analysis of Article XX, paragraph 1 (d),\s taken not from the Nicaragua Court's interpretation of the here relevant provision of the 1956 United States-Nicaragua Treaty, but from its examination of the legality of the measures of the United States under customary international law. Without explaining that specific context of the quotation from the Nicaragua case, the Court concludes that "[i]n the present case, the question whether the measures taken were 'necessary' overlaps with the question of their validity as acts of self-defence" (para. 43). Logically, given the context of the authority on which the Court relies, this conclusion would be true only if the Court in this case had jurisdiction under Article 36, paragraph 2, of its Statute. That it does not have.

37. The Court's approach distorts the here relevant fact-finding process or focus. The language of Article XX, paragraph 1 (d) — "measures . . . necessary to protect essential security interests" — suggests that the parties to the Treaty, without leaving it exclusively to their subjective determination as to whether or not the measures were necessary to protect their respective essential security interests, must nevertheless not be understood to have excluded the right of each party to make that assessment by reference to a standard of reasonableness. That much is implicit in the requirement the Article postulates, if only because the concept of "essential security interests" must of necessity bear some relation to a State's own reasonable assessment of its essential security interests, even if ultimately it is for the Court to pass on that assessment. This is apparent also from the Nicaragua Court's holding. Here the Court noted that, whether "a [given] measure is necessary . . . is not . . . purely a question for the subjective judgment of the party [but may be assessed by the Court]" (I.C.J. Reports 1986, p. 141, para. 282; emphasis added). The Nicaragua Court's suggestion that it may not be "purely" a matter of the subjective judgment of a party, implies that while a Government's determination is ultimately subject to review by the Court, it may not substitute its judgment completely for that of the Government which, in assessing whether the disputed measures were necessary, must be given the opportunity to demonstrate that its assessment of the perceived threat to its essential security interests was reasonable under the circumstances.

38. Thus, even if one were to adopt the Court's view that "in the present case, the question whether the measures taken were 'necessary' overlaps with the question of their validity as acts of self-defence", it would be improper to analyse the evidence adduced by the United States [p 286]
in support of its measures exclusively in light of their validity as acts of self-defence, without recognizing that in Article XX, paragraph 1 (d), the parties opted, not for a rigid or absolute assessment of the evidence, but for an examination of the evidence that asked whether, on the facts before it, a party had convincing reasons for believing that the measures were necessary to protect its essential security interests. This analysis would permit the Court to view the evidence before it in this case in a much more nuanced way and to assess the actions of the United States with the flexibility Article XX, paragraph 1 (d), appears to demand. By not adopting this approach in the instant case, the Court, for all practical purposes, reads Article XX, paragraph 1 (d), out of the Treaty and then proceeds to assess the evidence as if Article XX, paragraph 1 (d), did not exist.

39. That this is in fact what the Court does, is readily apparent from the evidentiary approach it adopts. Thus, in paragraph 57 of the Judgment, the Court concludes that:

"For present purposes, the Court has simply to determine whether the United States has demonstrated that it was the victim of an 'armed attack' by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such attack rests on the United States. The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence available is insufficient to establish that the missile was fired by Iran, then the necessary burden of proof has not been discharged by the United States."

40. This test takes no account of the facts as they might reasonably have been assessed by the United States before it decided to act, given the context of the Iraq-Iran armed conflict and Iran's consistent denial that it was not responsible for any military actions against neutral shipping. Article XX, paragraph 1 (d), as interpreted in the Nicaragua case, would have required such a contextual analysis of the evidence.

41. One might ask, moreover, where the test of "insufficient" evidence comes from (see para. 39, supra) and by reference to what standards the Court applies it? What is meant by "insufficient" evidence? Does the evidence have to be "convincing", "preponderant", "overwhelming" or "beyond a reasonable doubt" to be sufficient? The Court never spells out what the here relevant standard of proof is. Moreover, it may well be that each of the pieces of proof the United States adduces, if analysed separately, as the Court does (see, for example, Judgment, paras. 58 et seq.),
[p 287] may not be sufficient to prove that the missile was fired by Iran. Taken together, however, they may establish that it was not unreasonable for the United States to assume that it was fired by Iran, particularly since Iran, in the face of overwhelming evidence that it was responsible for at least some attacks on neutral shipping, denied all such responsibility. A proper application of Article XX, paragraph 1 (d), of the Treaty would have required the Court to take these considerations into account.

42. In paragraph 60 of the Judgment, the Court states

"In connection with its contention that the Sea Isle City was the victim of an attack by Iran, the United States has referred to an announcement by President Ali Khameini of Iran some three months earlier, indicating that Iran would attack the United States if it did not 'leave the region'. This however is evidently not sufficient to justify the conclusion that any subsequent attack on the United States in the Persian Gulf was indeed the work of Iran."

It may not be sufficient to justify the conclusion regarding specific subsequent attacks, but it certainly has a bearing on determining Iran's intentions or policies about attacking United States interests in the Gulf. Such intentions or policies, one would assume, would be highly relevant elements in assessing the facts disputed by the Parties as well as the reasonableness of the assumption made by the United States about threats to its essential security interests. This the Court fails to do.

43. In the same paragraph 60, the Court also comments on the evidence proffered by the United States that

"Iran was blamed for the attack [on the Sea Isle City] by 'Lloyd's Maritime Information Service, the General Council of British Shipping, Jane's Intelligence Review and other authoritative public sources'. These 'public sources' are by definition secondary evidence; and the Court has no indication of what was the original source, or sources, or evidence on which the public sources relied. In this respect the Court would recall the caveat it included in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, that 'Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source.' (I.C.J. Reports 1986, p. 41, para. 63.)"

All that may be true, but the Court pays no attention to the evidence indicating that these "public sources" were deemed by mariners in the [p 288] Gulf to be highly knowledgable and reputable sources of information, and that they were treated by them as reliable. By simply dismissing this evidence as insufficient, the Court glosses over important elements of proof bearing not only on the assumptions that could reasonably be made about Iran's role in the attacks on vessels in the Gulf, but also the veracity of these reports. Besides, merely because these sources were "secondary", does not mean that they are insufficient to shift the burden of going forward with the evidence to Iran and thus requiring it to prove their unreliability, an issue the Court simply fails to address.

44. Another example of a questionable fact-finding process, given the context of this case, is found in paragraph 71 of the Judgment. Here the United States supports its contention that the mine which the USS Samuel B. Roberts struck was laid by Iran, with evidence of "the discovery of moored mines in the same area, bearing serial numbers matching the other Iranian mines, particularly those found aboard the [Iranian] vessel Iran Aj'r", which had been observed laying mines and subsequently been boarded by the United States. The Court assesses the probative value of this evidence as follows: "[fjhis evidence is highly suggestive, but not conclusive". Apart from the fact that the standard of proof has suddenly changed, without an explanation, from "sufficient" to "conclusive", one wonders why evidence that is "highly suggestive" appears for the Court not to be sufficient even in the context of this particular case.

45. More important, because of its focus on the right of self-defence under international law rather than on Article XX, paragraph 1 (d), the Court erroneously invokes and relies on the conceptual differences under international law between individual and collective self-defence. Thus, for example, the Court notes that

"[t]o justify its choice of the platforms as targets, the United States asserted that they had 'engaged in a variety of actions directed against United States flag and other non-belligerent vessels and aircraft' " (para. 50).

The Court rejects this defence in the following terms:

"Despite having thus referred to attacks on vessels and aircraft of other nationalities, the United States has not claimed to have been exercising collective self-defence on behalf of the neutral States engaged in shipping in the Persian Gulf; this would have required the existence of a request made to the United States 'by the State [p 289]which regards itself as the victim of an armed attack' (I. C. J. Reports 1986, p. 105, para. 199). Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it . . ." (Para. 51.)

46. By failing to focus on Article XX, paragraph 1 (d), and by analysing the evidence exclusively in terms of the right of self-defence under international law, the Court draws conclusions from the dichotomy between individual and collective self-defence that have no place in this case. This type of analysis is erroneous when applied to the interpretation of Article XX, paragraph 1 (d), of the 1955 Treaty, since it permits "measures . . . necessary to protect [a State's] essential security interests" without specifying that these measures can only be taken against a State that intended to damage the victim's essential security interests. Hence, even an indiscriminate attack not specifically aimed at the party to the Treaty, would provide a valid defence under Article XX, paragraph 1(d), if it threatened those interests. By failing to differentiate between the requirements of that Article and those of international law on the use of force, the Court erroneously fails to examine important evidence presented by the United States in justification of the measures it took against Iran.

***

47. For all the foregoing reasons, I conclude that the Court erred in its ruling with regard to Article XX, paragraph 1 (d).

(Signed) Thomas Buergenthal.

[p 290]
DISSENTING OPINION OF JUDGE ELARABY

Court should have drawn the consequences of unlawful use of force — United States military action against Iran being an armed reprisal — Court's reasons for rejecting Iran's claim of violation of Article X, paragraph 1, being unsound — Irrelevance of what particular platforms were producing oil — Indirect commerce continued, under the embargo — Article X, paragraph 1, cannot be interpreted as excluding indirect commerce — Court should have ruled more exhaus-tively on the issue of use of force.

After due reflection, and not without hesitation, I voted against the first paragraph of the dispositif and supported the second. My hesitation was due to the fact that as a matter of principle I subscribe to the thrust of the first finding of the Judgment. The reason for my negative vote is that I am unable to accept the conceptual formulation adopted by the Court. In my view, the formulation does not purport to encompass all the parameters associated with the boundaries defined by the Charter and the relevant rules of international law regarding the prohibition of the use of force. Based on my reading of the relevant facts and my understanding of the case law and jurisprudence of the Court, I append this dissenting opinion to put my views on record. Since I voted for the Court's rejection of the counter-claim, I will refrain from addressing this issue.

I shall channel the reasoning of my dissent through three points:

(i) the prohibition of the use of force;
(ii) the issue of whether the obligations emanating from Article X, paragraph 1, were breached;
(iii) aspects of jurisdiction.

I. The Prohibition of the Use of Force

1.1. The case, in essence, is about international responsibility. It evolves around whether it is permissible for a State to use force against another State outside the boundaries defined by the Charter of the United Nations. Thus when it is proven that a State has committed a wrongful act, the Court is duty bound to pronounce authoritatively on the legal consequences of the wrongful act provided of course that it has jurisdiction to do so. The Court, it should be recalled, held in the first finding that the [p 291] United States action is not justified and in paragraph 42 held that the yardstick to gauge the legality of an act involving the use of force is "the provisions of the Charter of the United Nations and customary international law" (Judgment, para. 42). This in my view is an inescapable recognition that the Court has jurisdiction to adopt a comprehensive pronouncement on the legality of the use of force. In the present case, the use of force did not require proof. It was admitted. Yet no legal consequences flowed.

The principle of the prohibition of the use of force in international relations as enshrined in Article 2, paragraph 4, of the Charter is, no doubt, the most important principle in contemporary international law to govern inter-State conduct; it is indeed the cornerstone of the Charter. It reflects a rule of jus cogens from which no derogation is permitted. This fundamental principle draws a distinction between a post-Charter era of law-abiding, civilized community of nations and the pre-Charter era when the strong and powerful States were not restrained from attacking the weak at will and with impunity.

The main question to be answered in the Judgment would therefore be: is it legally acceptable that a State escape its international responsibility for the consequences of a deliberate armed attack by advancing:

(a) a defence based on a clause in a commercial treaty ; or, alternatively, by
(b) invoking the right of self-defence under Article 51 in the absence of the conditions established by the United Nations Charter and customary international law?

In the 2003 Judgment, the Court held that "It is clear that the original dispute between the Parties related to the legality of the actions of the United States" (Judgment, para. 37).

It follows that if the Court were to hold that the United States measures were unlawful then the Court is duty-bound to declare that the United States has acted contrary to its obligations under the Charter of the United Nations and under customary international law.

The Court rightly rejects the United States claim that its use of force can be justified as measures to protect the essential security interests of the United States under the provisions of Article XX, paragraph 1 (d), of the Treaty of Amity, Economic Relations and Consular Rights. On this finding, I would like to reiterate that I concur. A clause in a commercial treaty cannot possibly be invoked to justify the use of force.

In the Nicaragua case in 1986 the Court, when considering the provisions of Article XXI of the Treaty of FCN between Nicaragua and the [p 292] United States, did not satisfy itself by merely expressing that the use of force was not justified. The Court went further and addressed the prohibition of various aspects and consequences of the use of force in international relations in a comprehensive manner. The Nicaragua judgment recognizes that the United States, by using force "has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 147, para. 292 (6)). In the present case, the Court, however, adopted a formulation which is, in my opinion, rather truncated and consequently incomplete. The formulation of the finding in the Judgment, regrettably fell short of the required standard. The Court

"Finds that the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, para-graph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, as interpreted in the light of international law on the use of force." (Judgment, para. 125 (1).)

My primary concern is that the parameters defined in the United Nations Charter and reaffirmed by the Court's jurisprudence established in the Nicaragua case may be detrimentally affected as a result of the formulation adopted. This occurs at a time when the rule of law is confronted with great challenges in various parts of the globe and the judicial pronouncements of the principal judicial organ of the United Nations would reinforce and add weight to the prohibition.

The Judgment in the present case, moreover, stops short of addressing the consequential legal corollaries of the finding which were clearly enunciated and established by the Nicaragua Judgment. The terminology used by the Court is very restrained. More legal clarity would have been expected from the Court on such a grave matter as the use of force by one party to a privileged FCN treaty against another party to the same treaty.

In the 1986 Nicaragua case the Court held that: "in the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, Merits, Judgment, p. 103, para. 195). Nowhere in this Judgment is it asserted that the United States was a victim of an "armed attack". On the contrary, the Court noted in clear terms that the incidents advanced by the United States [p 293]

"do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a 'most grave' form of the use of force" (Judgment, para. 64).

On the basis of this finding the Court reached the conclusion that the United States use of force cannot be considered as an exercise of legitimate self-defence.

Yet the Court shied away from drawing the only available conclusion which logically flows from its finding that the United States use of force

"cannot be justified as measures necessary to protect the essential security interests of the United States under Article XX, paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and the Islamic Republic of Iran, as interpreted in the light of international law on the use of force" (Judgment, para. 125 (1)).

1.2. In light of the above, it would have been advisable for the Court to be consistent with its 1986 Judgment by inserting in the reasoning on Article XX, paragraph 1 (d), a decisive and straightforward statement that defines the legal character of the United States use of armed force. The following three main elements should, in my view, have been included:

(i) Pronounce that the use of force by the United States cannot be justified under Article XX of the 1955 Treaty, which the Court in fact did, though it did not follow up as in the Nicaragua case by referring to a breach of obligations by the United States under the Treaty, on the basis of a line of arguments which is not substantiated by fact or supported by a sound analysis of law.
(ii) Pronounce in clear terms that the use of force by the United States was a breach of its obligations under customary international law not to use force in any form against another State.
(iii) Find that such use of force by the United States violates Iran's sovereignty.

There is, moreover, another aspect that was absent in the Judgment. The Court concluded in paragraph 72 that it "is unable to hold that the attacks on the Salman and Nasr platforms have been shown to have been justifiably made in response to an 'armed attack' on the United States by Iran" (Judgment, para. 72). The Court also noted that

"the attacks on the Salman and Nasr platforms were not an isolated operation, aimed simply at the oil installations, as had been the case with the attacks of 19 October 1987; they formed part of a much more extensive military action, designated 'Operation Praying[p 294] Mantis', conducted by the United States against what it regarded as 'legitimate military targets'; armed force was used, and damage done to a number of targets, including the destruction of two Iranian frigates and other Iranian naval vessels and aircraft" (Judgment, para. 68).

If such use of force, as the Court held, was not exercised in self-defence then it would amount to armed reprisal. In point of fact, General George Crist flatly labelled the operation as "to degrade their ability to observe our forces, in effect, to put out their eyes", and stated in 1997 that his "goal was to further protect our forces by putting out more of the Iranian eyes" (Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Memorial and Counter-Claim of the United States of America, Annexes, Vol. II, Exhibit 44, p. 6, para. 11). Iran's Exhibit 69 contains a Washington Post report dated 20 October 1987 with the following sentence:

"[t]he attack, prompted when US forces spotted Iranians fleeing the facility, was described by a Defense Department spokesman as an unexpected 'target of opportunity' and had not been planned" (Oil Platforms (Islamic Republic of Iran v. United States of America), Memorial submitted by the Islamic Republic of Iran, Documentary Exhibits 41-90, Vol. Ill, 8 June 1993, Exhibit 69).

Iran, however, was at war with Iraq and not with the United States. As such, the United States military action against Iran must be considered as military reprisals. It will be recalled that the Court held in the 1986 Nicaragua Judgment that "States have a duty to refrain from acts of reprisal involving the use of force" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 101, para. 191).

The reference to the illegality of reprisals in international law should, in my view, have been addressed in the reasoning in an obiter dictum. A pronouncement by the highest world Court would have, no doubt, added authority to the illegality of such practice due to the existence of what Professor Derek Bowett termed, as far back as 1972, as the "credibility gap" which emerged "by reason of the divergence between norm and the actual practice of states" (D. Bowett, "Reprisals Involving Recourse to Armed Force", 66 AJIL 1 (1972)). The Court had already addressed the illegality of forcible self-help as far back as the Corfu Channel case in 1949 when it held that "to ensure respect for international law, of which it is an organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty" (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 35). Profes-[p 295]sor Sir Humphrey Waldock's analysis on this point is penetrating. He wrote that

"the Court thus drew a sharp distinction between forcible affirmation of legal rights against a threatened unlawful attempt to prevent their exercise and forcible self-help to obtain redress for rights already violated ; the first it accepted as legitimate, the second it condemned as illegal. But although the legitimacy of affirming the exercise of a legal right was upheld, the scope of this ruling must not be exaggerated. It is very far from meaning that a State may resort to force whenever another State threatens to violate its rights; for in its second pronouncement the Court said with the utmost emphasis that respect for territorial sovereignty is an essential rule." (Sir Humphrey Waldock, "States and the Law Governing Resort to Force", Recueil des cours de l'Académie de droit international de La Haye, Vol. 106 (1962), p. 240.)

The Oil Platforms case presented the Court with an occasion to reaffirm, clarify, and, if possible develop, the law on the use of force in all its manifestations, so that the Court could continue to make "a tangible contribution to the development and clarification of the rules and principles of international law" (Judge Sir H. Lauterpacht, The Development of International Law by the International Court of Justice, reprinted edition, 1982, p. 5). The Court regrettably missed this opportunity. The Judgment refrained from exploring refinements and progressive development of the existing doctrine. Even an obiter dictum was not contemplated. The international community was entitled to expect that the International Court of Justice, on an issue as important as the prohibition of the use of force, would seize the opportunity to clarify and enhance the prohibition, and add probative value to the existing jurisprudence.

II. The Second Finding on Article X, Paragraph 1

2.1. The 1996 Judgment confined the ground for jurisdiction for the Court to Article X, paragraph 1. The narrowness of this base influenced the approach to the case and tied the hands of the Court, and it restricted the general ambit of the present Judgment which led to the Court holding that it

"cannot however uphold the submission of Iran that those actions constitute a breach of the obligations of the United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of commerce between the territories of the parties" (Judgment, para. 125 (1)).[p 296]

The Court's reasoning for reaching this conclusion is, in my view, not supported by the available facts. This finding does not seem to me to be well founded, in fact or law, nor do I find it consistent with aspects of the 1996 conclusion, which are now considered as res judicata. The 1996 Judgment, it will be recalled, held that:

"The Treaty of 1955 imposes on each of the Parties various obligations on a variety of matters. Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by which it is brought about. A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means. Matters relating to the use of force are therefore not per se excluded from the reach of the Treaty of 1955. The arguments put forward on this point by the United States must therefore be rejected." (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 811-812, para. 21.)

"The Court should not in any event overlook 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.

The Court points out in this respect that the oil pumped from the platforms attacked in October 1987 passed from there by subsea line to the oil terminal on Lavan Island and that the Salman complex, object of the attack of April 1988, was also connected to the oil terminal on Lavan by subsea line." (Ibid., pp. 819-820, para. 50.)

It also held that:

"On the material now before the Court, it is indeed not able to determine if and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade in Iranian oil; it notes nonetheless that their destruction was capable of having such an effect and, consequently, of having an adverse effect upon the freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of 1955. It follows that its lawfulness can be evaluated in relation to that paragraph. The argument made on this point by the United States must be rejected." (Ibid., p. 820, para. 51.) [p 297]

How did the Court reach this conclusion, which, in my view, contains an element of inconsistency with its previous Judgment? I read the analysis of the reasoning advanced to support the 2003 finding on this point as predicated on three unsound premises.

2.2. The first premise is that the October 1987 attack on the Reshadat and Resalat complexes did not impede the flow of oil because the platforms were out of commission as a result of Iraqi attack. This conclusion completely disregards the fact that the 1955 Treaty provides for an obli-gation not to impede freedom of commerce and commercial activities between the territories of the two parties in general. Thus whether a particular platform was or was not producing oil at a certain moment is irrelevant. Iran's territory was producing oil which reached the territory of the United States. A destruction of any single platform prejudices and impedes and restricts Iran's ability to export oil which, as the Court recognized in 1996, forms a vital part of its economy and constitutes an important component of its foreign trade.

The Court further noted that

"[i]t could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States" (Judgment, para. 96).
The Court in 1996 adopted a comprehensive, all-encompassing definition of the expression "freedom of commerce". The Court, by holding that any act which would impede that freedom is thereby prohibited, has made it clear that the Parties are under a legal obligation to protect the freedom of commerce and that impeding the freedom of commerce is a breach of the Treaty which engages the responsibility of that party.

In the Oscar Chinn case, the expression, "freedom of commerce", was seen as contemplating not only the purchase and sale of goods but also "industry". In the 1996 Judgment the Court held that

"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 — and 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 (II), p. 819, para. 49).

The 1996 Judgment, which possesses the power of res judicata, cannot be reconciled with the 2003 findings on Article X, paragraph 1, in the Judgment. [p 298]

At the time of the first attack, export of oil to the United States was flowing as usual. Moreover, according to Iran, the Reshadat and Resalat complexes were scheduled to resume production on 24 October 1987. The Court somehow observes in paragraph 93 of the current Judgment that it "has no information whether, at the time of the attacks, the works were up to schedule" (Judgment, para. 93). Whether oil turbines were repaired or not before 29 October 1987, the date of the enactment of Executive Order 12613 and imposition of the embargo, is irrelevant.

What is relevant is that the October 1987 attack occurred at a time when oil, albeit from other platforms, was being exported to the United States. In paragraph 91, the Court notes that

"Iran has asserted, and the United States has not denied, that there was a market for Iranian crude oil directly imported into the United States up to the issuance of Executive Order 12613 of 29 October 1987. Thus Iranian oil exports did up to that time constitute the subject of 'commerce between the territories of the High Contracting Parties' within the meaning of Article X, paragraph 1, of the 1955 Treaty." (Judgment, para. 91.)

This statement clearly recognizes that Article X, paragraph 1, was breached during the ten days between 19 October 1987, date of the first attack on the Reshadat and Resalat complexes, and 29 October 1987. This is an established incontrovertible fact. Whether oil was at that time produced or processed by the two platforms which were attacked or not is irrelevant. The fact remains that commerce in oil was going on during that period. I fail, with all due respect, to see where in the Treaty a distinction is drawn on the basis of what platforms produced the oil which is protected by its provisions. This point has been accepted by the Court in paragraph 82 where it observes that "it is oil exports from Iran to the United States that are relevant to the case, not such exports in general" (Judgment, para. 82).

It should be reiterated in this context that the freedom of commerce which is protected under the Treaty is not confined to commerce between the three platforms and the United States, it is between Iran as a whole and the United States. As counsel for Iran remarked:

"in destroying the platforms, the United States prejudiced Iran's freedom to organize its commerce as it wished from its own territory: whether from the platforms (or not), whether to reduce production elsewhere and increase it on the platforms" (CR 2003/15, p. 7, para. 21).

2.3. The second premise is that, once the embargo was imposed upon the adoption of Executive Order 12613 on 29 October 1987, the legal [p 299] situation was altered as a result of the termination of oil importation from Iran. In point of fact, oil importation from Iran was never interrupted. It was only confined to the parameters allowed by the provisions of the Executive Order. Thus commerce between the territories of the two Parties did not come to a complete stop. The Court acknowledged this fact when it noted that

"The Court sees no reason to question the view that, over the period during which the United States embargo was in effect, petroleum products were reaching the United States, in considerable quantities, that were derived in part from Iranian crude oil. Execu-tive Order 12613 contained an exception (Section 2(b)) whereby the embargo was not to apply to 'petroleum products refined from Iranian crude oil in a third country'. It could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States." (Judgment, para. 96.)

The fact of the matter is that prior to the embargo, commerce in oil between the territories of the Parties proceeded as usual. After the imposition of the embargo, only direct exportation of oil to the United States was apparently halted. It was worthy of note in the latter case that Iran's economy benefited from an increase in demand for crude oil in Western European markets and that this corresponded to increased spending by United States importers of oil from Western Europe. Thus a flow of Iranian oil to the United States, albeit through third countries, and a corresponding flow of capital which ultimately reached Iran took place and was fully authorized by Article 2 (c) of the Executive Order.

In the Nicaragua case, the Court resolved that "the United States of America, ... by declaring a general embargo on trade with Nicaragua . . . has acted in breach of its obligations under . . . the Treaty" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 148, para. 292 (11); emphasis added). Iran however, as the Court has rightly noted, "has chosen not to put formally in issue" (Judgment, para. 94) the imposition of the embargo. The legality of the embargo was not pleaded by the Parties. It must therefore, for the purposes of the Judgment, be considered moot. The Court consequently declared that it is concerned only with the "practical effects of the embargo" (Judgment, para. 94). The first practical effect should be to recognize that Executive Order No. 12613, dated 29 October 1987, did not terminate all the importation of Iranian oil to the United States: in Section 2 (b) which reads: "[t]he prohibition contained in Section 1 shall not apply to: . . . (b) petroleum products refined from Iranian crude oil in a third country" (Oil Plat-[p 300]forms (Islamic Republic of Iran v. United States of America), Counter-Memorial and Counter-Claim of the United States, Vol. V, Exhibit 138).

Thus it is clear that only direct import of Iranian oil was prohibited following the imposition of the embargo on 29 October 1987. Petroleum products refined in a third country from Iranian crude oil continued to be imported legally in the United States. In this context it is relevant to take note of the phrase "Iranian crude oil" which demonstrates quite clearly that the Executive Order endorses the view that a refined product in a third country could still be traced, identified, and continue to retain its certificate of origin as "Iranian". In paragraph 96 of the current Judg-ment, the Court also endorses this view by saying that it

"sees no reason to question the view that, over the period during which the United States embargo was in effect, petroleum products were reaching the United States, in considerable quantities, that were derived in part from Iranian crude oil" (Judgment, para. 96).

It will be recalled, in this context, that the United States expressed the view that oil imported from third countries cannot be identified as Iranian oil. The United States insisted that due to several chemical operations the original identity is altered. The United States contends that

"[t]he crude oil underwent an even greater transformation in Europe, first being mixed with crude oil from other sources . . . and then being refined into oil products, such as fuel oil . . . At that point, the refined oil products, such as fuel oil, were capable of another sale, either for consumption in Europe or for export to other countries, including possibly the United States . . ." (CR 2003/11, pp. 46-47, para. 15.50.)

The embargo, as drafted in Executive Order 12613, provides the answer. Whatever chemical transformation occurs in third countries, the imported petroleum products are considered Iranian by the explicit wording of the Executive Order. The logical conclusion to be drawn is that the importation of Iranian crude oil through third countries was not illegal. Hence it was feasible. Executive Order 12613 allows the indirect importation of Iranian crude oil. It follows that commerce continued and did not stop after the imposition of the embargo.

The Court however asserts that

"Whether, according to international trade law criteria, such as the 'substantial transformation' principle, or the 'value added approach', the final product could still retain for some purposes an Iranian character, is not the question before the Court"; [p 301]

and that

"What the Court has to determine is not whether something that could be designated 'Iranian' oil entered the United States, in some form, during the currency of the embargo; it is whether there was 'commerce' in oil between the territories of Iran and the United States during that time, within the meaning given to that term in the 1955 Treaty." (Judgment, para. 96.)

2.4. The third premise is that the 1955 Treaty covers only direct commerce between the territories of the United States and Iran. Indirect commerce is considered by the Judgment as excluded from the protection offered by the Treaty provisions. This rationale, in my view, is not well founded in law in the context contemplated by the Treaty. Nowhere in the Treaty is there a reference that its provisions apply to direct commerce.

The Treaty, moreover, has settled any interpretative speculation about direct and indirect commerce by providing for a most favoured nation clause to cover products of the one party whether they reach the territory of the other party directly or indirectly. Article VIII provides that:

"1. Each High Contracting Party shall accord to products of the other High Contracting Party, from whatever place and by whatever type of carrier arriving, and to products destined for exportation to the territories of such other High Contracting Party, by whatever route and by whatever type of carrier, treatment no less favourable than that accorded like products of or destined for exportation to any third country, in all matters relating to: (a) duties, other charges, regulations and formalities, on or in connection with importation and exportation and (b) internal taxation, sale, distribution, storage and use. The same rule shall apply with respect to the international transfer of payments for imports and exports." (Oil Platforms (Islamic Republic of Iran v. United States of America), Documentary Exhibits submitted by the United States of America, Vol. I, Exhibit 1, Treaty of Amity, Economic Relations, and Consular Rights of 1955 between the United States and Iran.)

It is clear that Article VIII extends the most favoured nation clause to products "from whatever place and by whatever type of carrier arriving" "in all matters relating to : (a) . . . regulations and formalities, on or in connection with importation and exportation". This "exemption" in my view matches the exception referred to above in Executive Order 12613. They both cater for the treatment of indirect commerce. [p 302]

It is submitted that the interpretation of Article X, paragraph 1, in light and in the context of Article VIII, strongly supports a broad reading of the word "commerce" which encompasses "indirect commerce". The Court held in the Libya v. Chad case that

"a treaty must be interpreted in good faith in accordance with the ordinary meaning given to its terms in their context and in The light of its object and purpose. Interpretation must be based above all upon the text of the Treaty." (Territorial Dispute (Libyan Arab Jamahi-riya v. Chad), Judgment, I.C.J. Reports 1994, pp. 21-22, para. 41.)

The 1955 Treaty extends protection to products "from whatever place and by whatever carrier". The text is quite clear. From whatever place by definition covers crude oil reaching the United States indirectly through third countries. The 1955 Treaty is a special and privileged type of FCN. The correct interpretation of the general coverage of Article VIII must therefore be construed as extending protection to indirect commerce. Article 31 of the Vienna Convention on the Law of Treaties stipulates that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Any other interpretation would lead to what the Vienna Convention on the Law of Treaties termed as "a result which is manifestly absurd or unreasonable" (Article 32 (b) of the Vienna Convention on the Law of Treaties).

Article X, paragraph 1, protected Iran's "freedom of commerce". Consequently Iran's choice to decide what oil will be used for local consumption and what oil will be destined for export is protected by the treaty provisions. In 1996 the Court was indeed careful and avoided trespassing into the merits of the case. It therefore confined its finding to stating that "on the material now before the Court, it is indeed not able to determine if and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade in Iranian oil".

However, it did hasten to add that

"it notes nonetheless that their destruction was capable of having such an effect and, consequently, of having an adverse effect upon the freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of 1955" (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 820, para. 51).

The Court should have been, at the merits phase, consistent with its 1996 Judgment by recognizing that the freedom of commerce had been breached. [p 303]

III. Aspects of Jurisdiction

The 1996 Judgment anchored the jurisdiction of the Court on very narrow ground, namely "to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty" (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 821, para. 55 (2)). Claims under I and IV of the 1955 Treaty were rejected. The Court, however, made quite clear in the 1996 Judgment that

"the objective of peace and friendship proclaimed in Article I of the Treaty of 1955 is such as to throw light on the interpretation of the other Treaty provisions, and in particular of Articles IV and X. Article I is thus not without legal significance for such an interpretation, but cannot, taken in isolation, be a basis for the jurisdiction of the Court." (Ibid, p. 815, para. 31.)

Two points regarding the jurisdiction of the Court in this case need to be addressed. The first relating to the selection of the approach. In other words, whether to start with Article XX or Article X. The second is whether it was proper to address the legal consequences of the use of force as the Court deemed fit to do in the Nicaragua case.

3.1. With respect to the first point, it is appropriate to express my full support for the road map followed by the Court in choosing to start by the consideration of Article XX, paragraph 1 (d). The case as already pointed out revolves around the legality of the use of force by the United States against the Iranian oil platforms. The Court's decision to follow that path was an instance of its "freedom to select the ground upon which it will base its judgment" (Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62). The Court further noted that "In the present case, it appears to the Court that there are particular considerations militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1" (Judgment, para. 37).

3.2. As for the second point, it is a fact that the jurisdiction of the Court in this case differs from the Court's jurisdiction in the Nicaragua case mainly because the United States withdrew its acceptance of the compulsory jurisdiction of the Court by a declaration in 1984. Yet not-withstanding the narrow scope of its jurisdiction in this case, the reasoning in the Judgment follows the Nicaragua methodology. Several paragraphs more or less emulate Nicaragua, such as:

"This approach is consistent with the view that, when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of [p 304] armed force, allegedly in self-defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self-defence under international law." (Judgment, para. 40.)

The Court also rightly observed in paragraph 41 that

"It is hardly consistent with Article I to interpret Article XX, paragraph 1 (d), to the effect that the 'measures' there contemplated could include even an unlawful use of force by one party against the other. Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account 'any relevant rules of international law applicable in the relations between the parties' (Art. 31, para. 3 (c)). The Court cannot accept that Article XX, para-graph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty." (Judgment, para. 41.)

3.3. More significantly, the Court while holding that it "is always conscious that it has jurisdiction only so far as conferred by the consent of the parties" (Judgment, para. 41), rightly concluded that

"its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be justi-fied under that paragraph was or was not an unlawful use of force, by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law" (Judgment, para. 42; emphasis added).

This conclusion constituted an express recognition that the "United Nations criteria" apply. This was, however, not adequately spelled out and reflected in the operative part as the Court opted for an incomplete finding. A reader of the Judgment would notice a conceptual legal gap between the reasoning and the dispositif. A comprehensive judicial pronouncement of an exhaustive nature on a grave matter like the use of force should have been included to reaffirm the law. The Court would have been well advised to follow the adage of Judge Sir Hersch Lauter [p 305]pacht when he wrote that "there are compelling considerations of international justice and of development of international law which favour a full measure of exhaustiveness of judicial pronouncements" (Sir Hersch Lauterpacht, The Development of International Law by the International Court, reprinted edition, 1982, p. 37).

For the aforementioned reasons I was unable to vote with the majority. Hence my negative vote.

(Signed) Nabil Elaraby.

[p 306]
SEPARATE OPINION OF JUDGE OWADA

Court to proceed first with the examination of Article X, paragraph 1, prior to Article XX, paragraph 1 (d) — Freedom of the Court to choose grounds for its decision not to apply because of the special relationship between Article X, paragraph 1, and Article XX, paragraph 1 (d) — Character of the Treaty relevant for the interpretation of Article X, paragraph 1 — Essential characteristic of "commerce" to be found in its "transactional element" between the Parties — Activities of the platforms not "commerce" in this sense — No need to go into the examination of Article XX, paragraph 1 (d), in view of the finding of the Court on Article X, paragraph 1 — Examination of Article XX, paragraph 1 (d), not synonymous with the examination of self-defence in international law in general — Examination of self-defence as such not in order for the interpretation and application of Article XX, paragraph 1 (d) — Asymmetry in the production of evidence as a complicating factor in the case — Desirability of Court to take a more proactive stance on evidence and fact finding for the proper administration of justice.

1. I have voted for the Judgment of the Court in the present case, inasmuch as its conclusions in the final analysis amount to (a) the rejection of the claim of the Applicant and (b) the rejection of the counter-claim of the Respondent, the conclusions that I support. While I accept these final conclusions of the Judgment, however, I am not in a position to agree with all the points contained in the dispositif of the Judgment as stated in its concluding part nor with all the reasons leading to these conclusions as expounded in the main body of the Judgment. For this reason, I find it incumbent on me to state my position on some of the more salient points raised in the Judgment, to the extent that my position on those points which I regard as important may be made sufficiently clear. They are set out as succinctly as possible as follows.

I. The Basis of the Decision of the Court

2. In my view, the Judgment rightly reaches the final conclusion that neither the claims of the Applicant nor the counter-claim of the Respondent can be upheld, but in an unnecessarily convoluted and questionable way. In arriving at this outcome, the Judgment goes over the examination of the claims of the Applicant from the viewpoint, first, (a) of whether the actions of the United States of America can be justified as "measures necessary to protect the essential security interests" of the United States under Article XX, paragraph 1 (d), of the Treaty of [p 307] Amity, Economic Relations, and Consular Rights between the United States of America and Iran of 1955 and then, second, (b) of whether the submissions of the Applicant that those actions constitute a violation of the obligations of the Respondent under Article X, paragraph 1, of that Treaty can be upheld, as well as the examination of the counter-claim of the Respondent, in that order.

3. Considering the legal nature of the issues presented before the Court and the way they were presented, I am of the view that the natural and correct order in which the Court should proceed with the claims of the Applicant would have been to deal first of all with the issue of whether the actions of the United States, as alleged by the Applicant, in fact constituted a violation of the obligations of the Respondent under Article X, paragraph 1, of the Treaty at issue — the central issue to be decided at this phase of the proceedings.
4. On this point, the Judgment starts by making a general proposition as follows (Judgment, para. 35):

"To uphold the claim of Iran, the Court must be satisfied both that the actions of the United States, complained of by Iran, infringed the freedom of commerce between the territories of the Parties guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d)." (Emphasis added.)

On that basis, the Judgment considers that "[t]he question however arises in what order the Court should examine these questions of interpretation and application of the Treaty" (Judgment, para. 35). It is no doubt true, as the Judgment asserts, that in order to uphold the claim of Iran, the Court must be satisfied on both of these two points. However, it does not follow from this general proposition that the Court, in order to pass a judgment on the claim of the Applicant, must therefore examine both of these two questions in any case.

5. In the present case, the Court found by its Judgment on the Preliminary Objection of 12 December 1996 that it had jurisdiction "to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of [the 1955] Treaty" (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)). It is this task that is presented before the Court at this phase of the proceedings. Needless to say, it is not to be contested in this context that to the extent required for the interpretation or application of Article X, paragraph 1, of the Treaty, which offers the sole basis for the jurisdiction of the Court, the Court can enter into the examination of Article XX as far as that is relevant to the task of the Court as determined by its Judgment of 1996 on jurisdiction. However, I submit that it is precisely the existence of this legal link between the two provisions of Article X, paragraph 1, and Article XX, paragraph 1 (d), which brings the examination of Article XX, paragraph 1 (d), within the jurisdictional orbit of the Court. It follows from this that the examina-[p 308]tion of Article X, paragraph 1, should have the precedence, by reason of its logical order, to the examination of Article XX, paragraph 1 (d).

6. It is recalled that in 1986, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court was faced with a similar problem concerning the relationship between Article XIX of the treaty between Nicaragua and the United States, which contained provisions equivalent to Article X of the present case, and Article XXI of the same treaty, which contained provisions equivalent to Article XX of the present case. In that case, the Court was very clear in characterizing the legal nature of Article XXI of the treaty, declaring that "[Article XXI] defines the instances in which the Treaty itself provides for exceptions to the generality of its other provisions" (I.C.J. Reports 1986, p. 116, para. 222; emphasis added); and that

"[s]ince [it] contains a power for each of the parties to derogate from the other provisions of the Treaty, the possibility of invoking the clauses of that Article must be considered once it is apparent that certain forms of conduct by [the Respondent] would otherwise be in conflict with the relevant provisions of the Treaty" (ibid., p. 117, para. 225; emphasis added).

7. In fact, this Court in its Judgment on the Preliminary Objection in the present case also made this basic relationship between Article X and Article XX of the 1955 Treaty abundantly clear, when it stated the view that

"Article XX, paragraph 1 (d), does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise" (/. C. J. Reports 1996 (II), p. 811, para. 20; emphasis added).

8. It seems clear that for all these reasons it would have been compelling, as well as logical, in the context of the legal relationship between the two Articles, for the Court to start with an examination of Article X, paragraph 1, of the Treaty, before proceeding, if necessary, to an examination of Article XX, paragraph 1 (d), of the Treaty.

9. As a general proposition, it cannot be disputed that the Court has the "freedom to select the ground upon which it will base its judgment" (Judgment, para. 37). The Judgment cites in this respect what the Court stated in its Judgment in the case concerning the Application of the Con-vention of 1902 Governing the Guardianship of Infants (I.C.J. Reports 1958, p. 62). This is undoubtedly true with regard to the cases where the Court has a complete freedom to choose among a number of alternative grounds on which to base its Judgment. The present case, however, is to be distinguished from these precedents in the sense that in the present case the task on which the Court is given jurisdiction to decide is the question of the interpretation and application of Article X of the 1955 [p 309]

Treaty from the viewpoint of whether there has been a breach of Article X of the Treaty, and in that connection to proceed to an examination of the purport of Article XX of the Treaty, which is legally linked to Article X as a possible defence on the merits, in case the finding of the Court on Article X makes such examination necessary.

10. In this sense the present case is also to be distinguished from the Nicaragua case. In the Nicaragua case, the Court had jurisdiction to entertain the claim of the Applicant "in so far as that Application relates to a dispute concerning the interpretation or application of the [entire] Treaty [of 1956] ... on the basis of Article XXIV of that Treaty" (/. C.J. Reports 1984, p. 442, para. 113 (1) (b)), as well as jurisdiction to entertain the Application more generally on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court. Thus the problem of interpretation and application of Article XXI fell squarely and fully within the competence of the Court, wholly independent of Article XIX of that Treaty. The present case is different in this respect. While in the Nicaragua case the Court could be free, as a matter of judicial discretion, to choose its own order of priority for examination among a number of grounds for the claim presented by the Applicant, I submit that this is not so with the present case.

11. It is argued in the Judgment that in the present case, nevertheless, "there are particular considerations militating in favour of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1" (Judgment, para. 37). The Judgment points to the fact in this connection that "the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force" and that "[a]t the time of those actions, neither Party made any mention of the 1955 Treaty" (ibid.; emphasis added). The Judgment notes in this connection that:

"the United States itself recognizes in its Rejoinder [that] '[t]he self-defense issues presented in this case raise matters of the highest importance to all members of the international community', and both Parties are agreed as to the importance of the implications of the case in the field of the use of force, even though they draw opposite conclusions from this observation" (Judgment, para. 38).

On that basis, the Judgment comes to the conclusion that

"to the extent that [the] jurisdiction [of the Court] under Article XXI, paragraph 2, of the 1955 Treaty authorizes it to examine and rule on such issues [i.e., the self-defence issues], it should do so" (ibid.).

12. It is my submission that, as far as the present case is concerned, the dispute before the Court is as defined by the Parties in their submissions to this Court. The so-called "original dispute between the Parties" has no direct legal relevance to this dispute before the Court. In this connection, [p 310] the fact that "[a]t the time of those actions [of the United States of 1987 and 1988], neither Party made any mention of the 1955 Treaty" (Judgment, para. 37) is only to be expected, for the simple reason that at that time, especially in relation to the Security Council of the United Nations, the legality of the actions taken by the United States as such was the issue, but that in itself was not the dispute between the United States and Iran which later came to be brought before the Court. A distinct legal dispute arising out of this issue came about and crystallized in the form of the present case between the Applicant and the Respondent, only when Iran alleged that the United States actions in question constituted a "fundamental breach of various provisions of the [1955] Treaty" (Application of the Islamic Republic of Iran filed in the Registry of the Court on 2 November 1992) and the United States denied that allegation.

13. It is clear from this history that the case before the Court is one on a dispute between the Applicant and the Respondent concerning the interpretation and application of the 1955 Treaty in relation to certain United States actions alleged to be a violation of some provisions of this Treaty. It was on this basis that the Court decided in its Judgment on the Preliminary Objection of 1996 to have jurisdiction over the claims of the Applicant concerning this dispute under Article XXI, paragraph 2, of the 1955 Treaty. The Court thus has the competence to examine Article XX, especially its paragraph 1 (d), in the context of the interpretation and application of Article X, paragraph 1, of the Treaty, but not to examine and rule on the issue of self-defence under general international law.

14. In saying this, I do not mean to suggest that the Court is not entitled, for this jurisdictional reason stated above, to get into an examination of the scope and the relevance of the rules of general international law relating to the use of force. As I am going to elaborate later, my submission is simply that the Court is certainly entitled to do so, but only to the extent that such examination, ancillary to the examination of Article XX, paragraph 1 (d), is found to be necessary for clarifying the interpretation and application of Article XX, paragraph 1 (d), relating to "measures necessary to protect . . . essential security interests [of one of the Parties]", once the Court decides that an examination of Article XX, paragraph 1 (d), is required as the result of its finding on Article X, paragraph 1. In such an eventuality, it will not be the issue of "self-defence" under general international law as such but the issue of the use of force by the United States in the alleged actions complained of by the Applicant in the context of the provisions of Article XX, paragraph 1 (d), of the Treaty that the Court will have the competence to examine.

15. What has been analysed above leads me to the conclusion that what the Court should undertake at this stage was first of all to examine whether the alleged actions of the United States against the oil platforms in question constituted a violation of the provisions of Article X, paragraph 1, of the 1955 Treaty. Only if the Court found that it indeed was [p 311] the case, the Court should proceed to an examination of the provisions of Article XX, paragraph 1 (d), of the Treaty in the context of its relevance to Article X, paragraph 1, of the same Treaty, to see whether those provisions of Article XX, paragraph 1 (d), as interpreted in light of the relevant rules of international law, offered a possible defence for justifying the actions of the United States under the Treaty.

16. In the conclusions of its Judgment in the present case, the Court has found that it cannot uphold the submission of the Applicant that the actions of the United States as alleged by Iran constitute a violation of the obligations of the United States under Article X, paragraph 1, of that Treaty relating to the freedom of commerce. Since I concur with this finding, I do not see any reason further to go into an examination of the second question relating to the interpretation and application of Article XX, paragraph 1 (d), of the Treaty.

II. The Scope of Article X, Paragraph 1

17. I find myself in general agreement with the Judgment of the Court on this question of the interpretation and application of Article X, paragraph 1, of the 1955 Treaty, both in its conclusion as well as in its basic reasoning. For this reason, I do not intend to dwell upon a detailed examination of the issues involved in the interpretation and application of Article X, paragraph 1. I concur with the Judgment in its basic reasoning that has led the Court to its conclusion on this question.

18. However, there is one point on which I wish to put my position on the record in the context of this Article. It is the question of the basic character of a treaty of this kind, i.e., what is generically known as the Treaty of Friendship, Commerce and Navigation (the so-called FCN treaty), and the question of the scope of Article X of the Treaty as interpreted in light of this basic character of the Treaty.

19. The 1955 Treaty between the United States and Iran falls broadly within this category of treaties, which is traditionally described as the "general commercial treaty" (R. R. Wilson, United States Commercial Treaties and International Law (1960), p. 1). It is a "broad-purpose device" (ibid.) touching upon many subjects, but always in the field of economic relations between nations, such as the right of establishment of the nationals of the Contracting Parties in the territory of each other, the right of the Contracting Parties to engage in various economic activities in the territory of each other and freedom of commerce and navigation between the Contracting Parties, as guaranteed in the treaty on the basis of certain legal principles such as the principle of the most-favourednation treatment, the principle of national treatment and the principle of fair and equitable treatment. As such, it is the type of treaties which in their origin date back to several centuries ago (in the case of the United States, the conclusion of the first treaty of this type — the Treaty of Amity and Commerce with France of 1778 — is in fact older than the [p 312] establishment of the United States Constitution), and which have provided a concrete legal framework for economic activities of the nationals of each Contracting Party in relation to the other by guaranteeing certain standards of treatment to be observed by each Contracting Party.

20. In this sense, the essential character and the basic scope of the treaties of this type as the legal instrument for regulating concrete economic activities that take place between the two Contracting Parties are well defined and the concrete legal rules applicable to these activities fairly specific. It is against this background that the United States introduced a new treaty-making practice of incorporating a compromissory clause of the type we find in Article XXI of the 1955 Treaty between the United States and Iran into these FCN treaties it was concluding in the post-World War II period. From the travaux préparatoires of these treaties it is clear that the United States adopted this new practice of accepting the jurisdiction of the International Court of Justice on the interpretation and application of the provisions of these treaties, because "provisions of commercial treaties were, in general, familiar", and "there were numerous court decisions interpreting them" (R. R. Wilson, op. cit., p. 24).

21. This specific character of the FCN treaties, which include the 1955 Treaty that we are dealing with, should be kept in mind in assessing the general purport of the Treaty before us and in interpreting its concrete provisions in the context of the present case. In this sense, the position taken by the Court in its Judgment of 1996 on the Preliminary Objection in the present case is correct in my view, when it states that "the object and purpose of the Treaty of 1955 was not to regulate peaceful and friendly relations between the two States in a general sense" (I.C.J. Reports 1996 (II), p. 814, para. 28), in spite of the very broad language used in the provisions of its Article I.

22. Against this backdrop relating to the essential character and the basic scope of the Treaty, the legal relevance vel non of the 1955 Treaty and in particular its Article X, paragraph 1, to the claims advanced by the Applicant is to be examined as one of interpretation of the concept of "freedom of commerce and navigation" in its usual usage in business transactions as envisaged in these commercial treaties. Its significance in relation to the actions taken by the United States against certain Iranian oil platforms is in turn to be appreciated in light of this essential character and the basic scope of the Treaty in question.

23. The Court in its 1996 Judgment ruled that

"[t]he word 'commerce' is not restricted in ordinary usage to the mere act of purchase and sale; it has connotations that extend beyond mere purchase and sale to include 'the whole of the transactions, arrangements, etc., therein involved"' (I.C.J. Reports 1996 (II), p. 818, para. 45).

Then the Court went on to elaborate the point further as follows: [p 313]
"The Court should not in any event overlook 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." (I.C.J. Reports 1996 (II), p. 819, para. 50; emphasis in the original.)

24. In relation to this passage, an argument is advanced by the Respondent to the effect that since the alleged actions of the United States constituted neither "acts entailing the destruction of goods destined to be exported" nor "[acts] capable of affecting their transport and their storage with a view to export", its actions therefore did not amount to a violation of "freedom of commerce" as provided for in Article X, paragraph 1, of the 1955 Treaty. Clearly this is an argument which cannot be accepted. Needless to say, these examples are given by the Court not as the definition of acts in violation of "freedom of commerce"; they are given, not as an exhaustive list of all the cases falling under the category of a violation of "freedom of commerce", but only as an illustrative list that demonstrates some of the typical cases that can constitute an impediment of "freedom of commerce".

25. At the same time, these examples are nonetheless significant inasmuch as they are indicative of a certain common characteristic element that is involved in the concept of "freedom of commerce" as used in these FCN treaties. Commerce is defined as "mercantile transaction" (The Shorter Oxford Dictionary, 10th ed.). What is essential in the concept of "commerce" as its constituent element, especially in its context of "freedom of commerce and navigation" as used in the Treaty, is, I submit, the existence of this "transactional element" that links the two Parties under the Treaty. This to me is the critical element of "commerce", as the term is used in this Treaty, that distinguishes it from a mere economic activity which, even if it might envisage a possibility of export in a general sense, does not contemplate any concrete transaction in view. In fact, I submit that the term "freedom of commerce and navigation between the High Contracting Parties" as used in many of the FCN treaties concluded by the United States in the post-World War II period is meant to refer to this notion of unimpeded flow of mercantile transactions in goods and services between the territories of the Contracting Parties, as distinguished from a broader problem of the rights of the Contracting Parties to engage in various economic activities of a commercial character within the territories of each other — a problem dealt with in concrete detail by various provisions of the Treaty (for example, Article II through Article IX of the 1955 Treaty).

26. It is true that the oil platforms which were the subject of United States attacks were owned and operated for general commercial purposes [p 314] by the National Iranian Oil Company as an integral part of a series of complex operations that included such economic activities as the extraction of oil from the continental shelf, its transportation to a storage place, and its processing from crude oil into a final product for export/ consumption. In that sense, the oil platforms no doubt performed an important function in the chain of operations that consisted of a network of economic activities ranging from the oil production to its export/consumption.

27. This does not mean, however, that every single link in this chain of operations can be qualified as part of "commerce", and especially as an activity that falls within the concept of "freedom of commerce between the territories of the Contracting Parties" in the sense in which the term is used in Article X, paragraph 1, of the Treaty. In my view, there is a fine but clear distinction in this regard between "industrial activities" and "commercial activities" for the purpose of the Treaty, although the two activities may be linked with each other within the broad category of "economic activities".

28. In light of this reasoning and quite apart from the factual ground relied on by the Judgment that

"there was at the time of [the attacks of 19 October 1987] no commerce between the territories of Iran and the United States in respect of oil produced by [the] platforms [in question] . . . inasmuch as the platforms were under repair and inoperative" (Judgment, para. 98)

and that "at the time of the attacks of 18 April 1988 ... all commerce in crude oil between the territories of Iran and the United States had been suspended by [the] Executive Order [12613 of the United States]" (ibid.), I come to the conclusion that primordially on this legal ground the actions of the United States against the oil platforms in question did not amount to an infringement of "freedom of commerce" as stipulated in Article X, paragraph 1. The word "commerce" as employed in Article X, paragraph 1, while going beyond the immediate act of purchase and sale, should be understood to extend only to those activities which can be regarded as "the ancillary activities integrally related to commerce" (/. C. J. Reports 1996 (II), p. 819, para. 49) in the sense that they constitute essential ingredients of mercantile transactions carried out between Iran and the United States.

III. THE RELEVANCE OF ARTICLE XX, PARAGRAPH 1(d)

29. I have already stated earlier in this opinion that once the Court decides, for the reasons stated above, that it should first examine the submission of the Applicant relating to the interpretation and application of Article X, paragraph 1, of the 1955 Treaty, and comes to the conclusion,
[p 315] as the present Judgment has come, that the submission of the Applicant to the effect that the alleged United States actions violated the provisions in question cannot be upheld, there is no further need to go into the examination of the second question, i.e., the question as to whether the actions of the United States in question can be justified under the provisions of Article XX, paragraph 1 (d), of the Treaty. For this reason, I shall refrain from going into a comprehensive discussion of all the issues involved in the problem of Article XX, paragraph 1 (d), at this juncture.

30. However, there is one aspect of the problem that I wish to address in this context, as I find that the way in which the Judgment approaches the problem would seem to me to be questionable, even if the Court were to decide to go into the problem of interpretation and application of Article XX, paragraph 1 (d), of the Treaty.

31. The Judgment states, correctly in my view, that "[i]n the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (df (Judgment, para. 40). Having stated this position, however, the Judgment appears nevertheless to shift to the domain of "self-defence", assimilating this problem of interpretation of Article XX, paragraph 1 (d), with the general problem of self-defence under general international law. Thus, quoting from the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), to the effect that

"action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI as 'necessary to protect' the 'essential security interests' of a party" (I.C.J. Reports 1986, p. 117, para. 224),

the Judgment states as follows:

"when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self-defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self-defence under international law" (Judgment, para. 40).

32. It is submitted that this conclusion is a non sequitur. It is true in my view that, as a general proposition, the measures taken under Article XX, paragraph 1(d), when they involve the use of force, have to be compatible with the requirements of international law concerning the use of force. However, this does not mean that the problem involved in the "measures necessary to protect essential security interests" of a High Contracting Party under Article XX, paragraph 1 (d), is synonymous with the problem involved in the right of self-defence under international law. Moreover, it has to be kept in mind that in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court was examining this problem on the basis of its jurisdiction given under [p 316] Article XXIV of the 1956 Treaty between the parties with its application to the entire treaty, as well as under Article 36, paragraphs 2 and 5, of the Statute of the Court. Thus the Court could in that case get into the examination of the problem of self-defence under general international law without restriction. By contrast, the Court in the present case has jurisdiction only for the interpretation and application of Article XX, paragraph 1 (d). Under such circumstances, the interpretation and application of that Article in this specific context cannot be said to "necessarily entail an assessment of the conditions of legitimate self-defence under international law" (Judgment, para. 40), which presumably will mean an assessment of these measures in light of the requirements prescribed by the Charter of the United Nations as measures of "self-defence" under its Article 51.

33. In spite of this, it appears to me that from this point onwards the focus of discussion of the Judgment concerning the assessment of the actions of the United States under Article XX, paragraph 1 (d), is primarily placed on the examination of whether the actions of the United States in question satisfied the conditions for the exercise of the right of self-defence as prescribed by general international law, including the question of whether the alleged activities of Iran, which triggered the actions of the United States, amounted to an "armed attack". Thus, for instance, referring to the actions of the United States against the Resha-dat complex on 19 October 1987, the Judgment states as follows:
"Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as 'armed attacks' within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force . . . The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack and the exercise of self-defence." (Judgment, para. 51; emphasis added.)

34. It is submitted, however, that this assertion of the Judgment must be said to be misplaced in relation to the task before the Court, since it tends to shift the problem involved from the one of Article XX, paragraph 1 (d),to the one of self-defence as such under international law. In effect, when stated in this general way, the whole question under our consideration is transformed into one of self-defence in general international law — an issue which clearly falls outside the competence of the Court in view of its limited jurisdiction in the present case. What the Court should be addressing in the present context of Article XX, paragraph 1 (d), is not to ask the Respondent "to establish that [the United States] was legally justified in attacking the Iranian platforms in exercise of the right [p 317] of individual self-defence" (Judgment, para. 51; emphasis added), but to engage, after determining whether the Respondent has established that the alleged attacks were indeed attributable to Iran, in an examination of whether the actions of the United States in question satisfied the conditions required under Article XX, paragraph 1 (d), and, ancillary to that examination, and to that extent only, to go into the problem of whether the concrete modalities of those actions in the specific circumstances of the case were not incompatible with what is required under relevant rules of international law. In the process of examining these points, it should be unnecessary for the Respondent to show that the alleged Iranian activities were "of such a nature as to be qualified as 'armed attacks' within the meaning of that expression in Article 51 of the United Nations Charter" (Judgment, para. 51), since it is quite conceivable that certain measures can be legally undertaken under Article XX, paragraph 1 (d), of the Treaty, in relation to such activities as may not amount to an "armed attack", as being "necessary to protect [the] essential security interests" of the United States, in such a way that these measures are not incompatible with the requirements of the relevant rules of international law. (This test of incompatibility would inevitably bring into the discussion the whole problem of the scope of the use of force under customary international law and within the United Nations Charter system — a problem which I refrain from getting into as being unnecessary at this juncture.)

35. Essentially the same comments on my part should apply to the approach taken by the Judgment in relation to the actions of the United States against the Salman and Nasr platforms on 18 April 1988. After stating that

"in the present case a question of whether certain action is 'necessary' arises both as an element of international law relating to self-defence and on the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty" (Judgment, para. 73),

the Judgment goes on to assert the following:
"The Court does not . . . have to decide whether the United States interpretation of Article XX, paragraph 1 (d), on this point is correct, since the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any 'measure of discretion'. The Court will therefore turn to the criteria of necessity and proportionality in the context of international law on self-defence." (Judgment, para. 73.)

I submit that this assertion of the Judgment is also open to question, since to me the cardinal question that the Court must address in this part of its enquiry is the question of whether the interpretation of the Respondent of Article XX, paragraph 1 (d), in its entirety is justified or not. The task of [p 318] the Court should not be to examine and assess the actions of the United States in question against the yardstick of "self-defence" under general international law applying the criteria of necessity and proportionality as the essential components of the right of self-defence under international law — a task which the Court in the present case has no jurisdiction to address as such. Instead, the task should be to examine and assess these actions of the United States against the yardstick of Article XX, paragraph 1 (d), of the Treaty applying the criteria of reasonableness and necessity as the essential ingredients inherent in that Article — a task which the Court is fully justified in carrying out within its jurisdiction.

36. To sum it up, the question that the Court should be addressing here is not the question as to whether the actions of the United States satisfied the requirements of "self-defence" under general international law; it is the question, first and foremost, of examining whether these actions were "necessary to protect [the] essential security interests [of the United States]" within the meaning of Article XX, paragraph 1 (d), of the 1955 Treaty. It is only as an ancillary part of this examination, and to that extent only, that the question of whether the concrete modalities that these actions of the United States took were in fact confined within the bounds prescribed by the relevant rules of international law relating to the use of force.

37. As has been repeatedly stressed above, it is crucial to keep in mind that in the present case the competence of the Court is limited to the examination of the claims of the Applicant under Article X, paragraph 1, and does not extend to the examination of a broader and general problem of self-defence under general international law as such. For this reason the present case is to be distinguished in some important respects from the case concerning Military and Paramilitary Activities in and against Nicaragua, where the Court had jurisdiction to deal squarely with the issue of self-defence under international law in general. In this sense, whereas the Judgment asserts that "the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence''' (Judgment, para. 43; emphasis added), the issue here is not whether the measure in question is to be qualified as self-defence. The measures in question are to be tested against the criteria of Article XX, paragraph 1 (d), and not against the criteria of "self-defence" under general international law, except to the extent that an examination of the latter criteria becomes relevant as being ancillary to the examination of the former criteria.

38. The general problem of self-defence under international law is an extremely complex and even controversial subject both in terms of theory and practice. It is my considered view that while it is of utmost importance for the Court to pronounce its authoritative position on this general problem in a proper context, it should do so in a context where it should be possible for the Court to deal with the problem squarely in a full-fledged manner, with all its ramifications both in terms of the law and the facts involved. [p 319]

39. Such is not the case with the present situation for a number of reasons. First of all, the scope of jurisdiction of the Court for considering the present case is narrowly limited, as has been indicated above. In addition, the Respondent in its submissions in the Counter-Memorial, in the Rejoinder and in its final submissions in the oral pleadings did not rely upon this concept of self-defence as its principal line of defence and did not argue it in its full scope. Last but not least important is the fact that the circumstances surrounding the whole series of incidents which alle-gedly triggered the actions of the United States are shrouded in such deep mist (and mystery) that it is not at all easy to ascertain the full facts relating to the case, and to assess the actions of the United States against those ascertained facts surrounding these actions in the context of the doctrine of self-defence in general international law. Whether the actions of the United States could be justified as an act of self-defence would depend in the final analysis to a great extent upon the facts of the situation surrounding this case, although in the context of the present pro-ceedings, it would seem from the evidence presented to the Court that the Respondent, charged with the burden of proof on this point, could not be said in my view to have discharged the onus of proof to the satisfaction of the Court.

40. For all these reasons, I conclude that this cannot be the place for the Court to engage in an examination of the general problem of "self-defence" in international law. If the Court should decide to get into the second stage of the examination of the case relating to Article XX of the Treaty, it would seem proper for the Court to approach the problem primarily on the basis of the examination of the interpretation and application of Article XX, paragraph 1 (d), of the Treaty, and, if necessary as an ancillary exercise to this examination, to go into certain relevant aspects of a broader problem of international law on the use of force, but only to the extent relevant to the interpretation and application of Article XX.

IV. The Presence of Asymmetry in the Production of Evidence

41. It must be said that in my view the present case is a highly unusual and in some sense even bizarre case, in so far as its factual aspects are concerned. There are certain specific characteristics which make this case unique and make the task of the Court extremely complex.
First, with regard to the cause of action by the Applicant on the one hand, the military actions taken by the United States are public knowledge — a point of fact which the United States as Respondent does not contest. Thus the Applicant is not required to discharge the burden of proof, as far as the alleged facts that constitute its cause of action are concerned, as it would normally have to do in many contentious proceedings.

42. With regard to the defence by the Respondent on the other hand, at any rate in so far as its defence based on Article XX, paragraph 1 (d), [p 320] is concerned, the Respondent is placed in a position to justify its actions taken in relation to certain alleged activities of the Applicant, by establishing that its actions in question were taken against those activities which were carried out by Iran. In this situation, the burden of proof on the factual aspects of these alleged activities of Iran has come to rest with the Respondent. It is the Respondent that has to establish that those activities, against which it claims to have taken certain measures in the form of military actions, are attributable to Iran — a point of fact which the Applicant categorically denies. The net effect of this situation is that somewhat paradoxically the failure of the Respondent in establishing cer-tain material facts of the case could result, not simply in the failure of that Party in its claim against the opponent — represented in the present case typically in its counter-claim — but also in the attribution of international responsibility of that Party for its own actions taken against the alleged but unsubstantiated activities of the Applicant.

43. Second, more significantly, this problem of establishing certain material facts of the case has been made extremely difficult, due to the existence of a hidden third party to the case which nevertheless has not appeared as an actual party to the present proceedings — even by way of a third party intervention — but which in fact has presumably been a relevant party to the incidents that has led to the present proceedings. The existence of Iraq, a State which throughout the material period of the events that form the subject-matter of the present case was engaged in war against Iran, and was actively engaged in the "Tanker War" that formed the background of the incidents leading to the present proceedings, makes the problem of ascertaining the material facts extremely complex. Indeed, as the Judgment itself acknowledges, the actual situation that prevailed in the region at that time was such that it would not be unreasonable to surmise that virtually all the activities, involving attacks by missile launching and by minelaying against neutral shipping including the United States vessels passing through the Persian Gulf — the activities which the Respondent claims to have triggered its military actions at issue — were attributable either to Iran or to Iraq, or possibly to both (Judgment, para. 44).

44. Under these circumstances, if one were to succeed in reaching a truly objective conclusion on the problem of whether the actions of the United States in the present case were justified against the alleged activities of Iran in the Persian Gulf under Article XX, paragraph 1 (d), of the 1955 Treaty — a question that the Court in my view is spared of addressing in the present case, as long as the Court comes to the conclusion stated in the Judgment concerning Article X, paragraph 1, of the Treaty (Judgment, para. 99) — it would be necessary for the Court to be apprised of the whole truth about the relevant facts of the case in full relating to the situation during the material period, including the alleged incidents that led to the actions of the United States in 1987 and 1988. Indeed, as has been stated above in paragraph 39, it would only be on the [p 321] basis of such ascertained full facts that the Court could assess in a conclusive manner whether the alleged actions of the United States met the conditions prescribed by the provisions of Article XX, paragraph 1 (d), including, as relevant, the rules of general international law on the use of force. This, I submit, the Court has not done. In order to do that, in my view, the Court would have had to go deeper into ascertaining the facts surrounding the case.

45. It goes without saying as a basic starting point in this context that a fundamental principle on evidence actori incumbit onus probandi should apply in the present case as well. Thus, the onus of proof to establish these relevant facts inevitably lies with the Party which claims the existence of these facts (i.e., the Respondent) as the basis for the defence of its actions complained of by the Applicant. On this basis, it must be said that the Respondent has failed to discharge this burden of proof to the satisfaction of the Court. To this extent, I concur with the conclusion on this specific point reached by the Judgment.

46. Nevertheless, there is no denying the fact that there undoubtedly exists an asymmetry in the situation surrounding this case as described above, in terms of producing evidence for discharging the burden of proof, between the position of the Applicant in its claim against the Respondent and the position of the Respondent in its defence against the Applicant. I am prepared to accept that this asymmetry is inherent in the circumstances of the present case and that there is little the Court can do under the circumstances. It is primarily the task incumbent upon the party which claims certain facts as the basis of its contention to establish them by producing sufficient evidence in accordance with the principle actori incumbit onus probandi.

47. Accepting as given this inherent asymmetry that comes into the process of discharging the burden of proof, it nevertheless seems to me important that the Court, as a court of justice whose primary function is the proper administration of justice, should see to it that this problem relating to evidence be dealt with in such a way that utmost justice is brought to bear on the final finding of the Court and that the application of the rules of evidence should be administered in a fair and equitable manner to the parties, so that the Court may get at the whole truth as the basis for its final conclusion. It would seem to me that the only way to achieve this would have been for the Court to take a more proactive stance on the issue of evidence and that of fact-finding in the present case.

48. This brings me to the problem of the standard of proof to be required for discharging the burden of proof in a case where the party who carries the burden of proof, though responsible for discharging that burden, finds itself in an extremely difficult situation as seen from an objective point of view.

49. It was Judge Sir Hersch Lauterpacht who stated, on this question of the burden of proof, although under quite different circumstances, as follows: [p 322]

"There is, in general, a degree of unhelpfulness in the argument concerning the burden of proof. However, some prima facie distribution of the burden of proof there must be . . . [T]he degree of burden of proof ... to be adduced ought not to be so stringent as to render the proof unduly exacting." (Certain Norwegian Loans, I. C.J. Reports 1957, p. 39.)

50. The Court in the Corfu Channel case was itself confronted with a situation where such consideration could apply. On the question of the standard of proof involved in this case, the Court had the following to say:

"It is clear that knowledge of the minelaying cannot be imputed to the Albanian Government by reason merely of the fact that a minefield discovered in Albanian territorial waters caused the explosions of which the British warships were the victims ....

On the other hand, the fact of [the] exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion." (I.C.J. Reports 1949, p. 18.)

51. It goes without saying that there are fundamental differences between the circumstances that gave rise to the incidents which formed the cause of action by the Applicant before the Court in the Corfu Channel case and the circumstances that led to the incidents which formed the basis for the defence by the Respondent before the Court in the present case. One of the critical differences lies in the fact that the incidents in the Corfu Channel case took place within the territorial waters of the Respondent, while the incidents in question in the present case allegedly took place in the international waters of the Gulf where the Applicant had no "exclusive territorial control" (ibid.).

52. Nevertheless, it would seem to me that this dictum of the Corfu Channel case contains some valid points which could be susceptible of general application to an international court, where the procedures and rules on evidence seem to be much less developed, and the task of the Court for fact finding much more demanding, than in the case of the national courts. It is on this consideration that, without in any way prejudging the ultimate outcome of such examination by the Court in the present case, I should have liked to see the Court engage in a much more [p 323]
in-depth examination of this difficult problem of ascertaining the facts of the case, if necessary proprio motu, through various powers and procedural means available to the Court under its Statute and the Rules of Court, including those relating to the questions of the burden of proof and the standard of proof, in the concrete context of the present case.

(Signed) Hisashi Owada.

[p 324]
SEPARATE OPINION OF JUDGE SIMMA

Matters relating to United States use of force are at the heart of the case, therefore the approach of dealing with Article XX before turning to Article X of the 1955 Treaty is acceptable — The Court's position regarding the United States attacks on the oil platforms, although correct as such, is marked throughout by inappropriate self-restraint — While hostile military action not reaching the threshold of an "armed attack" within the meaning of Article 51 of the United Nations Charter may be countered by proportionate and immediate defensive measures equally of a military character, the United States actions did not qualify as such proportionate counter-measures — The Court's treatment of Article X on "freedom of commerce" between the territories of the Parties follows a step-by-step approach which is correct up to a certain point but then takes turns in two wrong directions: first, the platforms attacked in October 1987 did not lose protection under Article X through being temporarily inoperative because the freedom under the Treaty embraces also the possibility of commerce in the future; secondly, the indirect commerce in Iranian oil going on during the time of the United States embargo is also protected by the Treaty — The Court's finding on the United States counter-claim is profoundly inadequate particularly with regard to the so-called "generic" counter-claim which should have been upheld — The problems of attribution and causality posed by the existence of several tortfeasors in the case could have been solved by recourse to a general principle of joint-and-several responsibility recognized by major domestic legal systems — Neither would the "indispensable-third-party" doctrine have stood in the way of declaring Iran responsible for breaches of Article X.

I have voted in favour of the first part of the dispositif of the present Judgment with great hesitation. In fact, I see myself in a position to concur — in principle — with the Court's treatment of only one of the two issues dealt with there, namely that of the alleged security interests of the United States measured against the international law on self-defence. As to the remaining parts of the dispositif, neither can I agree with the Court's decision that the United States attacks on the Iranian oil platforms ultimately did not infringe upon Iran's treaty right to respect for its freedom of commerce with the United States; nor do I consider that the way in which the Court disposed of the so-called "generic" counter-claim of the United States is correct. In my view, this counter-claim ought to have been upheld. Regarding the part of the dispositif devoted to this counter-claim, I thus had no choice but to dissent.

The reason why I have not done so also with regard to the first part of [p 325] the dispositif, even though, as I have just pointed out, I concur with the Court's decisions on only the first of the two issues decided thereinFN1, lies in a consideration of Rechtspolitik: I welcome that the Court has taken the opportunity, offered by United States reliance on Article XX of the 1955 Treaty, to state its view on the legal limits on the use of force at a moment when these limits find themselves under the greatest stress. Although I am of the view that the Court has fulfilled what I consider to be its duty in this regard with inappropriate restraint, I do not want to dissociate myself from what after all does result in a confirmation, albeit too hesitant, of the jus cogens of the United Nations Charter.

---------------------------------------------------------------------------------------------------------------------FN1 As well as the reason why I prefer to label the present opinion a "separate" and not a "dissenting" opinion despite disagreeing with the majority of the Court's main findings in the case.
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I. Iran's Claims
I. A. Introduction

1. As paragraph 37 of the Judgment pertinently reminds us, the original dispute between the Parties to the present case related to the legality under the international law on the use of force, that is to say, under the Charter of the United Nations and customary international law, of the attacks of the United States against the oil platforms. Paragraph 37 also points out that, at the time of those attacks, neither Party made any reference to the 1955 Treaty of Amity. When subsequently that Treaty was brought into play by Iran as a basis for the Court's jurisdiction, Iran attempted to ground jurisdiction not only in Article X, paragraph 1, but also Articles I and IV, paragraph 1, of the Treaty. In its 1996 Judgment on the United States Preliminary Objection the Court accepted only Article X, paragraph 1, as the basis of its jurisdictionFN2— which might seem surprising in the face of Article I of the Treaty which reads that "[tjhere shall be firm and enduring peace and sincere friendship between the United States . . . and Iran". In the Court's opinion, however, Article I was not to be interpreted as incorporating into the Treaty all of the provisions of international law concerning peaceful and friendly relations. Rather, this Article would have to be regarded as fixing an objective in the light of which the other treaty provisions are to be interpreted and appliedFN3. Thus, the Court concluded, Article I was "not without legal significance" for the interpretation of other Treaty provisions relevant in the case, in particular that of Article X, paragraph 1FN4. [p 326] In effect, the relevance ultimately assigned to Article I by the present Judgment can only be considered minimalFN5.

---------------------------------------------------------------------------------------------------------------------FN2 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), at pp. 817 ff., 821.
FN3 Ibid., p. 814, para. 28.
FN4 Ibid., p. 815, para. 31.
FN5 Article I is only referred to in the Judgment once (in paragraph 41) to support a conclusion which I consider cogent for rather more obvious reasons, namely that Article XX, paragraph 1 (d), of the Treaty (on which infra) must not be read as allowing any use of force between the parties that is not permissible, or justified, under the relevant rules of international law. Paragraph 41 considers the opposite view "hardly consistent with Article I".
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2. Be this as it may, the 1996 Judgment did decide that "[m]atters relating to the use of force are . . . not per se excluded from the reach of the Treaty of 1955"FN6. As a result, the rather businesslike Article X, paragraph 1, on freedom of commerceFN7 now serves as the proverbial eye of the needle through which the Court's treatment of the question of the use of armed force by the United States has to be squeezed. In effect, this needle's eye has now been made even smaller, impenetrable in the present case, in the Court's decision on the merits of Iran's claim of violation of Article X, paragraph 1.

---------------------------------------------------------------------------------------------------------------------FN6 I.C.J. Reports 1996 (II), p. 812, para. 21.
FN7 Respectively freedom of navigation; see infra on the United States counter-claim.
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3. From the viewpoint of legal policy and political relevance, however, there can be no doubt that in the present case the emphasis is squarely on the question of the legality vel non of the use of armed force by the United States against the oil platforms. I therefore accept the Judgment's approach of dealing with Article XX, paragraph 1 (d), of the Treaty before turning to Article X, paragraph 1, not only for the more technical reasons advanced in the Judgment — all of which I consider convincing —, but also out of this broader consideration. For the same reason, I see no problem in the fact that the part of the Judgment devoted to the issue of United States use of armed force is considerably larger than that dealing with the question of the violation of the Treaty as such.

4. Returning to the order in which these matters are taken up in the Judgment, the United States itself has argued that there was no compelling reason for the Court to examine the question of a breach of Article X before turning to the question under Article XX. According to the Respondent, therefore the order in which the issues are to be treated is a matter for the discretion of the CourtFN8. The manner in which the Court has exercised such discretion thus appears to me to be indisputable.

---------------------------------------------------------------------------------------------------------------------FN8 CR 2003/11, p. 16; CR 2003/12, p. 14.
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B. Article XX, Paragraph 1 (d)

5. In accordance with what I stated at the outset, the reason why I decided to vote in favour of the first part of the Judgment's dispositif is [p 327] that I consider it of utmost importance, and a matter of principle, for the Court to pronounce itself on questions of the threat or use of force in international relations whenever it is given the opportunity to do so. In this regard, the desirable standard of vigour and clarity was set already in the Corfu Channel case where the Court condemned a right to self-help by armed force claimed by the United Kingdom

"as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law"FN9.

------------------------------------------------------------------------------------------------------------FN9 Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 35.
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Unfortunately, in the sombre light of developments over the 50 years that have passed since the Corfu Channel case, but more particularly in the recent past, this statement of the Court shows traits of a prophecy.

6. My agreement with the present position of the Court in principle does not however keep me from criticizing the Judgment for what I consider the half-heartedness of the manner in which it deals with the question of the use of force.

I recognize of course that there are valid legal reasons for the Court to keep what has to be said on the legality of United States military actions against the oil platforms within the confines of the text of Article XX, paragraph 1 (d), of the Treaty. In fact, my criticism of the Court's treat-ment of the issues arising under that provision does not stem from any disagreement with what the text of the Judgment is saying. Rather, what concerns me is what the Court has decided not to say. I find it regrettable that the Court has not mustered the courage of restating, and thus re-confirming, more fully fundamental principles of the law of the United Nations as well as customary international law (principles that in my view are of the nature of jus cogens) on the use of force, or rather the prohibition on armed force, in a context and at a time when such a recon-firmation is called for with the greatest urgency. I accept of course that, since its jurisdiction is limited to the bases furnished by the 1955 Treaty, it would not have been possible for the Court to go as far as stating in the dispositif of its Judgment that, since the United States attacks on the oil platforms involved a use of armed force that cannot be justified as self-defence, these attacks must not only, for reasons of their own, be found not to have been necessary to protect the essential security interests of the United States within the meaning of Article XX of the Treaty; they must also be found in breach of Article 2 (4) of the United Nations Charter. What the Court could have done, without neglecting any jurisdictional bounds as I see them, is to restate the backbone of the Charter law on use of force by way of strong, unequivocal obiter dicta. Everybody will be [p 328] aware of the current crisis of the United Nations system of maintenance of peace and security, of which Articles 2 (4) and 51 are cornerstones. We currently find ourselves at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations CharterFN10. In this debate, "supplied" with a case allowing it to do so, the Court ought to take every opportunity to secure that the voice of the law of the Charter rise above the current cacophony. After all, the International Court of Justice is not an isolated arbitral tribunal or some regional institution but the principal judicial organ of the United Nations. What we cannot but see outside the courtroom is that, more and more, legal justification of use of force within the system of the United Nations Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force. If such voices are an indication of the direction in which legal-political discourse on use of force not authorized by the Charter might move, do we need more to realize that for the Court to speak up as clearly and comprehensively as possible on that issue is never more urgent than today? In effect, what the Court has decided to say — or, rather, not to say — in the present Judgment is an exercise in inappropriate self-restraint.

---------------------------------------------------------------------------------------------------------------------FN10 Cf. Secretary-General Kofi Annan's Address to the General Assembly of 23 September 2003, General Assembly, 7th Plenary Meeting, 23 September 2003, A/58/PV.7, at p. 3.
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7. Paragraph 78 of the Judgment concludes that the United States attacks against the oil platforms cannot be justified, under Article XX, paragraph 1 (d), of the Treaty of 1955, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying as acts of self-defence under "international law on the question" (see infra), and thus did not fall within the category of measures that could be contemplated, "upon its correct interpretation", by the said provision of the Treaty. I admit of course that this passage can be read — indeed, it must be read — as stating by way of implication that the United States actions, constituting unilateral use of "armed' force not qualifying, under international law ... as acts of self-defence", were therefore in breach of Article 2 (4) of the United Nations Charter. Tertium non datur. It is a great pity however that the reasoning of the Court does not draw this necessary conclusion, and thus strengthen the Charter prohibition on the threat or use of armed force, in straightforward, terms. To repeat, I cannot see how in doing so the Court would have gone beyond the bounds [p 329] of its jurisdiction. The text of the Judgment should have included an unambiguous statement to the effect that the United States military operations against the oil platforms, since they were not conducted in jus-tified self-defence against an armed attack by Iran, must be considered breaches of the prohibition on the use of military force enshrined in the United Nations Charter and in customary international law.

8. Instead of doing so, the text adopted by the majority of the Court explains what is to be understood by the "international law on the question" (para. 78) in a way that comes dangerously close to creating the impression that the Court attempts to conceal the law of the Charter rather than to emphasize it: it speaks throughout its extensive debate on the United States attacks in light of Article XX of "international law on the question" (i.e., the question of the use of force), "international law applicable in the case" or " the relevant rules of international law". What these relevant, applicable etc. rules actually are is spelled out only once, and then in the subordinate part of a sentence: in paragraph 42, the Judgment states that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of the Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force "by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law" (emphasis added). Again: nowhere else in the part of the Judgment dealing with the United States attacksFN11 is the United Nations Charter expressly mentioned. It is difficult to view such hiding of the law of the Charter behind the veil of terms like those that I have quoted above as a mere matter of style; it could unfortunately also be understood as a most unwelcome downgrading of the relevance and importance of the rules of the United Nations Charter on the use of force — as I just said, precisely at a time when the effectiveness of these rules is being challenged to the breaking-point.

---------------------------------------------------------------------------------------------------------------------FN11With the exception of a reference in paragraph 51 to Article 51 of the Charter as determining the meaning of "armed attacks".
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Having said this, I turn to a number of more specific issues raised by the text of the Judgment devoted to Article XX, paragraph 1 (d), of the 1955 Treaty.

9. I agree with the Judgment's understanding of the relationship between Article XX, paragraph 1 (d), and the limits of general international law on unilateral use of force, according to which — in the words of a former President of this Court — this Article "cannot have contem-[p 330]-plated a measure which cannot, under general international law, be justified even as being part of an operation in legitimate self-defence"FN12. The Court, in paragraph 41 of the Judgment, thus accepts, and rightly so, the principle according to which the provisions of any treaty have to be interpreted and applied in the light of the treaty law applicable between the parties as well as of the rules of general international law "surrounding" the treatyFN13. If these general rules of international law are of a peremptory nature, as they undeniably are in our case, then the principle of interpretation just mentioned turns into a legally insurmountable limit to permissible treaty interpretation.

---------------------------------------------------------------------------------------------------------------------FN12 Dissenting opinion of Judge Sir Robert Jennings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 541. Sir Robert referred to the exact counterpart of Article XX, paragraph 1 (d), in the FNC Treaty between the United States and Nicaragua. The remaining doubts in Sir Robert's mind (cf. ibid.) were, in my view, unnecessary.
FN13 Article 31, paragraph 3 (c), of the 1969 Vienna Convention on the Law of Treaties
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10. The scope of measures taken to protect the essential security interests of a party according to Article XX, paragraph 1 (d), is wider than that of measures taken in self-defence. There are many measures that a party may take on that basis, like import bans, which have nothing to do with the notion of self-defence. On the other hand, any measure taken in self-defence would equally constitute a measure necessary to protect essential security interests within the meaning of the 1955 Treaty. However, only measures which fulfil all of the conditions required for the exercise of the right of self-defence can qualify as action that is permissible under Article XX, paragraph 1 (d). In the present case, to interpret Article XX, paragraph 1 (d), more "liberally" would be both absurd and destructive: absurd, because our provision could then be read to mean that parties to treaties of, among other things, "amity" could be allowed to contract out of the most fundamental of all obligations under present international law, namely the prohibition on the threat or use of force — an obligation which States owe any other State even if they cannot mus-ter any degree of "amity" for each other. Furthermore, such a reading of Article XX, paragraph 1 (d), would be destructive because it would allow a mutual "emancipation" from some of the most cogent of all rules of international law.

11. I also strongly subscribe to the view of the Court expressed in the Judgment's paragraph 73 according to which the requirement of international law that action taken avowedly in self-defence must have been necessary for that purpose, is strict and objective, leaving no room for any "measure of discretion". In my view, this is also due to Article I of the 1955 Treaty ("There shall be firm and enduring peace and sincere friend-[p 331]ship between the United States . . . and Iran") which, according to the Court's Judgment of 1996 on the Preliminary Objection of the United States, must be regarded as fixing an objective, in the light of which the other Treaty provisions are to be interpreted and appliedFN14. The least which this objective must lead to is a particularly high demand on the standard of "necessity" embodied in Article XX, paragraph 1 (d); every one of the words used in the text of that provision must be carefully weighed and given its full import. Hence, in order to relieve a party from its obligation under Article X, paragraph 1, of the Treaty, a measure must, first, be necessary, not just desirable or useful to protect that State's essential security interests. Second, the measure must be necessary to actually protect these interests, not just to advance or support them. Third, the measure must be necessary to protect the security interests of the State taking it. Fourth, the security interests destined to be protected must be essential. And last, of course, the measure must be concerned with the security of the Respondent itself. Since Article XX, paragraph 1 (d), of the 1955 Treaty is the exception to the rule of freedom of commerce and navigation enshrined in the same Treaty, and, as stated, in light of Article I, all these terms have to be subjected to extremely careful scrutiny.

---------------------------------------------------------------------------------------------------------------------FN14 I.C.J. Reports 1996 (II), p. 814, para. 28.
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12. I am less satisfied with the argumentation used in the Judgment by which the Court arrives at the — correct — conclusion that, since the Iranian mine, gunboat or helicopter attacks on United States shipping did not amount to an "armed attack" within the meaning of Article 51 of the Charter, the United States actions cannot be justified as recourse to self-defence under that provision. The text of paragraph 51 of the Judgment might create the impression that, if offensive military actions remain below the — considerably high — threshold of Article 51 of the Charter, the victim of such actions does not have the right to resort to — strictly proportionate — defensive measures equally of a military nature. What the present Judgment follows at this point are some of the less fortunate statements in the Court's Nicaragua Judgment of 1986FN15. In my view, the permissibility of strictly defensive military action taken against attacks of the type involving, for example, the Sea Isle City or the Samuel B. Roberts cannot be denied. What we see in such instances is an unlawful use of force "short of an armed attack ("agression armée") within the meaning of Article 51, as indeed "the most grave form of the use of force"FN16. Against such smaller-scale use of force, defensive action — by force also [p 332]
"short of Article 51 — is to be regarded as lawfulFN17. In other words, I would suggest a distinction between (full-scale) self-defence within the meaning of Article 51 against an "armed attack" within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile action, for instance against individual ships, below the level of Article 51, justifying proportionate defensive measures on the part of the victim, equally short of the quality and quantity of action in self-defence expressly reserved in the United Nations Charter. Here I see a certain analogy with the Nicaragua case, where the Court denied that the hostile activities undertaken by Nicaragua against El Salvador amounted to an "armed attack" within the meaning of Article 51, that would have given the United States a right to engage in collective self-defence, and instead qualified these activities as illegal military intervention. What the Court did consider permissible against such unlawful acts were "proportionate counter-measures", but only those resorted to by the immediate victim. The Court said:

---------------------------------------------------------------------------------------------------------------------FN15 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, e.g., p. 101, para. 191; p. 103, para. 194; p. 127, para. 249.
FN16 Ibid., p. 101, para. 194.
FN17 I have not developed this view ad hoc, under the impact of the present case, but aslong as 20 years ago; see A. Verdross and B. Simma, Universelles Völkerrecht. Theorieund Praxis, 3rd ed., 1984, p. 240, para. 472.
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"While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot . . . produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused . . . could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, . . ."FN18

------------------------------------------------------------------------------------------------------------FN18 I.C.J. Reports 1986, p. 127, para. 249.
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Hence, the Court drew a distinction between measures taken in legitimate self-defence on the basis of Article 51 of the Charter and lower-level, smaller-scale proportionate counter-measures which do not need to be based on that provision. In view of the context of the Court's above dictum, by such proportionate counter-measures the Court cannot have understood mere pacific reprisals, more recently, and also in the terminology used by the International Law Commission, called "counter-measures"FN19. Rather, in the circumstances of the Nicaragua case, the Court can only have meant what I have just referred to as defensive military action "short of full-scale self-defence. Unfortunately, the present Judgment decided not to address this issue at all.

---------------------------------------------------------------------------------------------------------------------FN19 Cf. Articles 49-54 of the ILC's text on the Responsibility of States for Internationally Wrongful Acts, adopted in 2001 ; cf. International Law Commission, Report on the Work of its Fifty-Third Session, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10). The Commission strictly excluded from its concept of "counter-measures" any such measures amounting to a threat or use of force; cf. Article 50, para. 1 (a).
---------------------------------------------------------------------------------------------------------------------

[p 333]

13. To sum up my view on the use of force/self-defence aspects of the present case, there are two levels to be distinguished: there is, first, the level of "armed attacks" in the substantial, massive sense of amounting to "une agression armée", to quote the French authentic text of Article 51. Against such armed attacks, self-defence in its not infinite, but still considerable, variety would be justified. But we may encounter also a lower level of hostile military action, not reaching the threshold of an "armed attack" within the meaning of Article 51 of the United Nations Charter. Against such hostile acts, a State may of course defend itself, but only within a more limited range and quality of responses (the main difference being that the possibility of collective self-defence does not arise, cf. Nicaragua) and bound to necessity, proportionality and immediacy in time in a particularly strict way.

14. In the present case, I agree with the Court that neither the broad pattern of unlawful use of force by Iran against United States vessels and their naval escorts nor the two specific attacks against the Sea Isle City and the Samuel B. Roberts amounted to an "armed attack" within the meaning of Article 51 of the United Nations Charter. These hostile activities could, as I have pointed out, have been countered immediately by "proportionate counter-measures" also of a military nature, consisting of defensive measures designed to eliminate the specific source of the threat or harm to affected ships in, and at the time of, the specific incidents. The Iranian oil platforms and their possible non-commercial activities during the Gulf War were too remote from these incidents (in every sense of this word) to provide a legitimate target for counter-measures within the meaning given to this term in the Nicaragua Judgment. Also, there is in the international law on the use of force no "qualitative jump" from iterative activities remaining below the threshold of Article 51 of the Charter to the type of "armed attack" envisaged there. However, as I read the facts of the present case, there was on the part of Iran no iterative or continued pattern of armed attacks against United States ships to begin with. Attacks on ships flying foreign flags could not be relied on by the United States in order to trigger Article 51 action. Furthermore, not a single Security Council resolution adopted at the material time deter-mined that it was Iran (alone) which had engaged in "armed attacks" against neutral shipping in the Gulf.

15. But even if we assume, for the sake of discussion, that the United States had been the victim of an armed attack by Iran within the meaning of Article 51 of the United Nations Charter, the United States attacks on the oil platforms would not qualify as legitimate acts of self-defence under that provision. The United States actions fulfilled neither the condition of necessity nor that of proportionality. In the light of the material before the Court relating to the political and military considerations on [p 334] the part of United States authorities that led to the attacks on the oil platforms, the selection of these platforms as targets was made on the basis of decisions by military commanders which may well be considered state of the art from the viewpoint of military efficiency, etc., but to which the notion of "self-defence" was quite foreign. It is possible, indeed probable, that some monitoring of United States as well as any other neutral shipping had actually taken place from aboard the oil platforms. Obviously this was a nuisance to United States military decision-makers. The United States authorities might also have been right in assuming a connection between information flowing, as it were, from the oil platforms and the harassing of neutral shipping in the Gulf. Thus, as I see it, either following the incidents involving the Sea Isle City and the Samuel B. Roberts, the United States military considered that enough was enough, and thus decided to neutralize the oil platforms, or, rather, the United States used these two incidents to teach Iran a broader lesson. The material put before the Court by the United States contains several more or less convincing reasons as to why it was the oil platforms and not some other military targets that were chosen for the purpose of a "reply" to the specific incidents involving the Sea Isle City and the Samuel B. Roberts, respectively the broader pattern of unlawful force engaged in by Iran. But nowhere in these materials do we encounter any trace of the considerations that an international lawyer would regard as necessary in order to justify action taken in self-defence.
16. I arrive at the conclusion that the United States military actions against the oil platforms were not of the defensive nature required both by Article 51 of the United Nations Charter and the general international law governing "proportionate counter-measures", to refer again to the Nicaragua Court's tantalizing phrase. As I interpret the law on the limits of unilateral use of armed force as it has evolved since 1945, there is no way to regard such actions as lawful or justified.


C. Article X, Paragraph 1

17. With regard to the question whether the United States attacks on the oil platforms constitute a breach of Article X, paragraph 1, of the 1955 Treaty, the Judgment follows a step-by-step approach with which I am able to concur throughout several of its argumentative stages. For instance, I agree with the statement of the Court in paragraph 82 according to which it is oil exports from Iran to the United States that are relevant to the case, not such exports in general. In the same paragraph the Court rightly disposes of the United States argument calling for a distinction between oil produced on Iranian land territory or in the territorial sea of Iran, on the one hand, and oil produced on the Iranian continental shelf, on the other.[p 335]

18. I also agree with the gist of paragraph 89 of the Judgment, in which the Court considers that where a State destroys another State's means of production and transport of goods destined for export, or means ancillary or pertaining to such production or transport, there is an interference with freedom of international commerce being carried on by those means at that time. However, the Court relativizes this finding by saying that this consideration is valid "in principle". The Court thus introduces a distinction between "freedom of international commerce" in the Treaty sense (which it interprets later on) and the same freedom "in principle", that is, in some more general sense. This is the point from which the present Judgment appears to begin its retreat from the Court's position of 1996 or, to return to the metaphor used above, to close again the needle's eye offered to Iran at that earlier stage. I will turn to this change of course in more detail in paragraphs 21 ff. of my opinion.

19. In paragraph 91 of the Judgment, the Court reminds us that it remains uncontested between the Parties that "oil exports from Iran to the United States were — to some degree — ongoing at least until after the destruction of the first set of oil platforms" on 19 October 1987. In the same paragraph, the Court also points out that it is accepted by both Parties that the oil or petroleum products reaching the United States during this period were to some extent derived from crude oil produced by the platforms that were later subjected to attack. Thus the Court confirms that Iranian oil exports did right up to the beginning of the United States oil embargo constitute "commerce between the territories of the High Contracting Parties" within the meaning of Article X, paragraph 1, of the 1955 Treaty.

20. I also draw attention to paragraph 96 of the Judgment, according to which the Court sees no reason to question the view that, over the period during which the United States embargo was in effect, petroleum products that were derived in part from Iranian crude oil were reaching the United States in considerable quantities. The Court continues:
"It could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States."

21. Thus far, I can agree with the Court's build-up of the arguments concerning Article X, paragraph 1, of the Treaty. I have gone through the relevant stages of these arguments in order to demonstrate more clearly that from this point onwards the Court's reasoning begins to be flawed.
Where these flaws are summarized, as it were, and where therefore I part company with the reasoning of the Judgment, is at paragraph 98 which encapsulates the two main findings of the Court relating to [p 336] Article X, paragraph 1, of the Treaty. Paragraph 98 states that the two United States attacks cannot be said to have infringed upon Iran's rights under Article X, paragraph 1, of the Treaty because

— at the time of the United States attack of 19 October 1987 on the Reshadat platforms there was no commerce between the territories of Iran and the United States in respect of oil produced by those platforms and the Resalat platformsFN20, inasmuch as those platforms were under repair and inoperative;

---------------------------------------------------------------------------------------------------------------------FN20 Paragraph 47 of the Judgment clarifies that, while the United States attack was made solely on two platforms belonging to the Reshadat complex, it affected also the operation of the Resalat complex.
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— at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all direct commerce in oil between the territories of Iran and the United States had been suspended in pursuance of the United States embargo; consequently there was at that time no commerce "between the territories" of the parties within the meaning of the Treaty.

22. My disagreement with those two conclusions is as follows: as the Permanent Court has observed in the Oscar Chinn caseFN21, freedom of trade consists in the right to engage in any commercial activity, such activity comprising not only the purchase and sale of goods, but also industry, and in particular the transport business. This observation was the basis for the Court's 1996 Judgment on the United States Preliminary Objection to arrive at what it calls the "natural interpretation" according to which the word "commerce" in Article X, paragraph 1, includes com-mercial activities in general — not merely the immediate act of purchase and sale, but also the ancillary activities integrally related to commerceFN22. In conformity with this finding, the present Judgment includes the oil platforms among the installations performing such ancillary activities.

---------------------------------------------------------------------------------------------------------------------FN21 Judgment, 1934, P.C.I.J., Series AIB, No. 63, p. 65.
FN22 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 49.
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23. What I cannot agree with is that those oil platforms that at the time of the 1987 attacks were under repair could have lost the protection rendered by Article X, paragraph 1, of the 1955 Treaty by the fact of their thus being temporarily inoperative. First, according to Iran, the Reshadat platforms were at the time of the United States attacks close to being recommissionedFN23: according to Iran, it was contemplated that production would resume several days before the United States embargo set in. But even if the Reshadat platforms had taken up production again at a later date, that is, during the period of the embargo, they would have [p 337] participated in indirect commerce in oil (on which see infra), just like the Salman and Nasr platforms.

---------------------------------------------------------------------------------------------------------------------FN23 Cf. paragraph 92 of the Judgment.
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24. Concerning the time needed for the repair of the platforms, I see no reason to deny credibility to the Iranian claims as paragraph 93 of the Judgment chooses to do: Iraqi attacks on the Reshadat platforms had taken place way back in 1986 and I would not categorically exclude the possibility that the United States, resolved to "teach Iran a lesson", timed its attacks precisely so as to destroy the installations as imminently before they could resume their function as possible.
25. More importantly, however, I consider, first, that "freedom of commerce" within the meaning of Article X, paragraph 1, of the Treaty implies the coverage by that Treaty provision not only of actual, ongoing commerce but of commerce on a continuing basis. Secondly, with Iran, I read that freedom as embodying an undertaking by the Parties to refrain from any action, not authorized by general international law or expressly contemplated by the Treaty between them, which may be the source of impediments on the other Party related to international commerceFN24. Thus, according to this view, which I consider to be correct on this point, the key issue is not damage to commerce in practice but the violation of the freedom to engage in commerce, whether or not there actually was any commerce going on at the time of the violation.

---------------------------------------------------------------------------------------------------------------------FN24 Pellet, CR 2003/6, p. 28.
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26. To conclude from this interpretation of the Treaty-based "freedom of commerce" that one party to a treaty stipulating such freedom would be obligated to enhance the other party's capabilities to bring about goods destined for such commerce would be absurd. But what certainly follows from it is that the parties are prohibited to prevent each other's use of existing capabilities, particularly by destroying respective installations altogether. I see no other way to interpret the Court's statement of 1996, according to which "any act which would impede that 'freedom' is thereby prohibited"FN25. Further, as a consequence of that — abstract, as it were — understanding of freedom of commerce followed here, such freedom is not founded on momentary reality, it implies a possibility for the futureFN26. Thus the destruction of the Reshadat installations did impair the freedom of Iran to engage in commerce in oil also with the United States, irrespective of the fact that at the time of the attacks the platforms were out of order. Even if it had taken Iran longer to render the installations attacked in 1987 operational again, reducing them to ruins is to [p 338] me as obvious a violation of Iran's freedom of commerce as it could possibly be. Hence, for a violation of Article X, paragraph 1, to occur, no oil must have been flowing at the time of the United States attacks; it is sufficient that the attacks impeded the possibility of such flow. To give an example: let us assume that a person is suffering from a sore throat, depriving her of her voice, the chances being however that the person would be fully able to speak again in a few hours' time. If somebody gagged that person in order to prevent her from then speaking her mind, would such action be seen as an infringement upon that person's respective rights or not? The answer would certainly be yes. Thus I would venture to disagree with the view expressed in paragraph 92 of the Judgment according to which "[i]njury to potential for future commerce is . . . not necessarily to be identified with injury to freedom of commerce, within the meaning of Article X, paragraph 1, of the 1955 Treaty".

---------------------------------------------------------------------------------------------------------------------FN25 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 50.
FN26 Pellet, CR 2003/6, p. 33, paras. 68 and 70; p. 34, para. 73.
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27. From the view taken here, the exact time of the projected resumption of operation of the oil platforms is not really relevant.

28. Further, I find myself in disagreement with the view expressed in paragraph 98 of the Judgment that, since at the time of the attacks on the Salman and Nasr platforms in April 1988, commerce in oil between the territories of Iran and the United States had been suspended through the United States President's Executive Order 12613, these platforms had lost protection under Article X, paragraph 1, of the 1955 Treaty as well. Thus, in the view of the Court, even though it recognizes that during the period of the United States embargo petroleum products were reaching the United States in considerable quantities that were derived in part from Iranian crude oilFN27, commerce in such products did not constitute "commerce between the territories of Iran and the United States", understood exclusively as direct commerce. Also, the Judgment apparently views the "directness" of commerce in oil and petroleum products as eliminated not by the fact that, having been mixed with oil from other destinations, refined or otherwise processed, for instance in Rotterdam, Iranian crude oil could have lost its Iranian nationality, as it were, but rather by the existence in the context of indirect commerce of a succession of commercial transactions involving in addition to an Iranian seller and a United States buyer some intermediate participant(s) in a third countryFN28.

---------------------------------------------------------------------------------------------------------------------FN27 Cf. paragraph 96 of the present Judgment and infra paragraph 30.
FN28 Cf. Judgment, paras. 96 ff. In the Court's view "[t]his is not 'commerce' between Iran and the United States, but commerce between Iran and an intermediate purchaser; and 'commerce' between an intermediate seller and the United States" (ibid., para. 97).
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29. I find this interpretation of Article X, paragraph 1, plainly wrong. It is too formalistic and due to render the inter-State "commerce" pro-[p 339]tected under the Treaty a prey to private manipulations. In order to assess the ambit of this protection correctly, I would submit that a sharp distinction ought to be drawn between the level of international commercial law, that is, the law and the contractual relationships governing transactions in oil between private parties on the one hand and the level of public international, i.e., treaty law on the other: the 1955 Treaty intends to protect "commerce between the territories of the Parties" as a value, or as a good, belonging, as it were, to the States parties to it; it in no way focuses on the private transactions that make such commerce flow from Iran to the United States. Thus, what the Treaty protection of commerce aims at is the macro-economic aspect of oil trade. And in this regard, the situation was as follows: according to the information before the Court, Iran's economy benefited from an increase in sales of crude oil to Western European markets during the period of the embargo, and this corresponded to increased spending by United States importers on petroleum products in those markets. Just as there was, in some sense, a flow of Iranian oil into the United States in the form of "mixed" crude oil or refined products, so there was also a corresponding flow of capital out of the United States and, ultimately, into Iran to pay for the products. In my view, this is all there is needed to represent "commerce between the territories" of the two Parties for the purposes of a commercial treaty of the kind exemplified by the 1955 Treaty. Trade in oil has to be viewed in light of the realities of that tradeFN29. I would presume that even before the enactment of the embargo, indirect trade in oil (products), as such trade is understood by the Judgment, was taking place. Subsequent to the United States President's Executive Order 12613, what happened was that all Iran-United States oil trade became indirect in that way.

---------------------------------------------------------------------------------------------------------------------FN29 Crawford, CR 2003/5, pp. 3 ff.
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30. The figures in that regard are quite telling. According to the report by Professor Odell submitted by Iran, trade in oil between Iran and Europe and Europe and the United States increased very significantly around the time in which the embargo was enacted. Thus Iranian crude exported to European OECD countries rapidly expanded from only 25.2 million tons in 1986 to 37.7 million in 1987, and to 43.0 million tons in 1988: a 70 per cent increase in two years.

In the course of the same two years, exports of oil products from Western Europe to the United States rose by 60 per cent, from 11.2 to 17.9 million tons, while exports of such products as a whole from Europe increased much more modestly by 35 per cent from 24.3 to 32.7 million tons. In 1986, 46.1 per cent of Western Europe's exports of relevant products went to the United States; in 1988, the United [p 340] States was the destination for 54.7 per cent of the totalFN30. Professor Odell concludes:

---------------------------------------------------------------------------------------------------------------------FN30 Reply and Defence to Counter-Claim submitted by Iran (RI), Vol. Ill, Odell Report, p. 10.
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"One can reasonably presume that these much larger than previously reported levels of geographically non-specified destinations for oil products ex-Europe for 1988 could have been related to actions which sought to disguise an Iranian origin for large volumes of oil going to the United States through Europe."FN31
------------------------------------------------------------------------------------------------------------FN31 Ibid., p. 12.
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Again according to Professor Odell, the "denationalization" process that Iranian oil underwent in Europe was substantial so that it would be very difficult to trace the oil to its origin. Odell states that "it was thus an ideal system into which US embargoed Iranian crude could be introduced"32.
31. Another critical observation in place would be that the Judgment is rather oblique in its treatment of the exception made in Executive Order 12613. After all, the Order provided that the embargo was not to apply, inter alia, to "petroleum products refined from Iranian crude oil in a third country". Must the very existence of this exception from the embargo not be seen as an implicit acknowledgment by the United States that indirect commerce was also to be regarded as "commerce" between itself and Iran? If it had been taken to be otherwise, the exception would not have been necessary at all.
32. The economic interests at the basis of indirect trade in oil (products) between Iran and the United States appear to me quite clear-cut: Iran had an interest in sending its oil to Western Europe because there the oil was mixed with crude from other geographical origins or refined to some degree, so that it was impossible to determine whether oil products subsequently imported into the United States from Western Europe had come from Iran or not. But it is apparent that the United States also had an interest in maintaining this arrangement. It permitted the United States to claim that it had placed an embargo on Iran while at the same time allowing American companies to indirectly import oil products from that country. It allowed Iran to hide the "nationality" of its oil by sending it to a third country where it was mixed with oil from other sources and then could be sold on to the United States without complaints. Thus it seems that one of the main motives behind shipping the oil to Europe before it went on to its final destination, the United States, was to circumvent the embargo rather than substantively change the product by adding significant value to it. The United States clearly had knowledge of these facts but its importers still bought greatly increased quantities of oil from Europe, as described in the Odell Report.
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33. Again, what I cannot but see here is "commerce between the territories" of the two Parties, well within the meaning of Article X, paragraph 1, of the 1955 Treaty. Nowhere does that Treaty require that such commerce be carried on between Iranian and United States natural or legal persons, without any foreign intermediaries, or that the oil should be shipped between the territories of the Parties without any interruption.
Paragraph 97 of the Judgment seeks to strengthen the opposite point of view by saying that:
"If, for example, the process of 'indirect commerce' in Iranian oil through Western European refineries . . . were interfered with at some stage subsequent to Iran's having parted with a consignment, Iran's commitment and entitlement to freedom of commerce vis-avis the United States could not be regarded as having been violated."
But let us assume that it would have been the United States itself that would have thus interfered, would in such case Iran not have regarded its entitlement to freedom of commerce as having been violated by the other Contracting Party? The answer will be a clear no. Thus, the very example chosen by the Court shows that the (as it were, "macro-" rather than "micro-") economic link characterizing the "commerce between the territories ..." protected by the Treaty would not be severed by any intermediate private transactions involving third-country nationals.
34. With regard to the two groups of oil platforms attacked by the United States I therefore reach the following result:
(a) as far as the Reshadat33 platforms attacked in October 1987 are concerned, there is the possibility that they could even have returned to contributing to direct commerce between the territories of the two countries before the United States embargo set in. After resumption of performance, they would with certainty have participated in indirect commerce;
(b) the same is valid for the Salman platform attacked in April 1988; as far as the Nasr platform attacked at the same date is concerned, it was operating at the time of the attack, that is, it was participating in Treaty-protected commerce.
Thus, the destruction of the oil platforms violated Iran's freedom of commerce
— given (correctly) what could be called the "abstract" meaning of such freedom in the case of the Reshadat, Resalat and Salman platforms;
— also understood in the "concrete" sense (as done by the Judgment) in case of the Nasr platform.
184
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Since, in my view, indirect commerce is protected by Article X, paragraph 1, of the Treaty, both United States attacks constituted breaches of the Treaty. The Court should therefore have upheld Iran's respective claim.
II. THE UNITED STATES COUNTER-CLAIM A. Introduction
35. While the Judgment discusses at length the issues of jurisdiction and admissibility of the United States counter-claim, in comparison it devotes very little attention to the substantive questions raised therein. In particular, the reasons for the dismissal of the generic counter-claim given in paragraph 123 of the Judgment appear to me to be plainly inadequate: all the Judgment has to say in this regard is that the high risk for navigation in the Gulf during the Iraq-Iran war is not sufficient for the Court to decide that Article X, paragraph 1, of the 1955 Treaty was breached by Iran, and, further, that the United States was unable to demonstrate an actual impediment to trade or navigation between the territories of the Parties resulting from Iran's hostile activities. After all, paragraph 123 of the Judgment tells us commerce and navigation between Iran and the United States did continue during the war34. According to the Court, in the circumstances of this case, a generic claim of breach of Article X, paragraph 1, cannot be sustained independently of the specific incidents involving a number of ships, the entirety of which the Court found as not having led to an interference with the freedom of commerce and navigation protected by the Treaty.
36. Thus far the Court's reasoning, contained in one single paragraph
185
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of the Judgment, and the little there is is borrowed in part from the arguments used by the Court before to dismiss the specific variant of the United States counter-claims. Possibly such short shrift thus given to the generic counter-claim can be explained as the Court's reaction to the somewhat unpersuasive way in which it was pleaded. Indeed, what I would regard as a full-fledged reasoning in support of the generic counter-claim was never really articulated by the United States. I would submit however that there is more merit to this counter-claim than meets the eye.
37. In the following, after a brief explanation of the meaning of "generic counter-claim" underlying the present case, I will scrutinize the main arguments in favour of the United States counter-claim of this nature, as they can be developed on the modest basis of what the United States did actually muster by way of reasoning. In doing so, I do not assume to violate the ultra petita partium rule because the generic counter-claim was actually made, if only insufficiently argued.
38. Iran, in its written pleadings on the counter-claim, made a distinction between the general context and worsening conditions for shipping in the Persian Gulf during the period in question, and the specific incidents referred to by the United States as constituting breaches of Iran's obligations under the Treaty35. Looking at the written pleadings of the United States, however, one finds no mentioning of an express distinction between a "generic" and a "specific" counter-claim36. Rather, in the United States Counter-Memorial and Counter-Claim, the counter-claim was formulated as a single claim. At the stage of the oral pleadings, the United States actually seemed to reject the distinction37. I use the word "seemed" because the position of the United States was unclear: after what could be regarded as a rejection of the distinction proposed by Iran, counsel for the United States went on to say that, in the Nicaragua case,
186
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OIL PLATFORMS (SEP. OP. SIMMA)
"[t]he Court did not feel compelled to treat each of the incidents placed before it as individual claims . . . We urge the Court to do the same in this case."38 In thus requesting the Court not to examine the incidents individually, the United States in fact embraced a more generic approach to the counter-claim implicitly.
39. Regardless of what the position of the United States on this problem of nomenclature ultimately was, the Court found the distinction suggested by Iran useful and took it up in its Judgment. I will therefore also follow it in my analysis. The way in which the Judgment proceeds is to reject the two types of counter-claims independently of each other, even though applying to the generic counter-claim more or less the same criteria that it applies earlier on to its specific variety. I submit that this approach cannot do justice to the generic counter-claim. To be able to stand on its own, the generic counter-claim must be given its distinct substance — a substance independent of that of the various specific incidents referred to by the United States. The Court's way of dealing with the matter in paragraph 123 reduces the generic counter-claim to an empty shell, which is then summarily disposed of.
40. To delineate the contours of the generic counter-claim in an adequate way, it is useful to refer to the 1986 Nicaragua Judgment. In the Nicaragua case, the Court was faced with similar violations of a similar treaty, which also protected the freedom of commerce and navigation "between the territories" of the two parties. When the Court assessed the impediment to the freedom of commerce and navigation caused by the United States attacks on Nicaraguan ships, it did not consider it necessary to establish whether the particular vessels harmed by mines were flying the Nicaraguan flag, and whether the ships in question were transporting cargo between the United States and Nicaragua39 (even though Article XIX, paragraph 1, of the FCN Treaty between the United States and Nicaragua of 1956, like Article X of our Treaty, reads: "Between the territories of the two parties there shall be freedom of commerce and navigation").
41. Most importantly, in the Nicaragua case, the Court did not analyse each incident in detail. Rather, it gave a broad picture of the context prevailing at the time, and assessed the nature and the extent of United States involvement and, consequently, its responsibility for the resulting violations of general international law and the FCN Treaty. Nowhere do we find a specific account of what happened to each ship. The Court's
187
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approach, in this sense, was more "generic" than "specific". In our case as well, the analysis of the generic counter-claim should not entail an analysis of what happened to the specific ships named by the United States.
42. One difference, of course, has to be pointed out at once: whereas, in the Nicaragua case, responsibility for the military actions taken against Nicaragua could be attributed only to the United States, in the present case two States created the situation adverse to neutral shipping in the Gulf: Iran and Iraq or, to be more precise, Iran or Iraq. I do not believe however that this difference is determinant. With respect to the generic counter-claim, all that matters is that Iran was responsible for a significant portion of the actions that impaired the freedom of commerce and navigation between the United States and Iran. This is sufficient to hold Iran in breach of its obligations under Article X, paragraph 1, of the 1955 Treaty, and it is not necessary to determine the particular extent to which Iran was responsible for these actions.
43. Another point is of even greater importance: against the reasoning that follows it cannot be argued that all the impediments to free commerce and navigation which neutral ships faced in the Gulf were caused by legitimate acts of war carried out by the two belligerents, Iran and Iraq, and that therefore neutral shipping had nothing to complain about, so to speak, because it entered the maritime areas affected by the Gulf war at its own risk — a risk which all neutrals must bear if they decide to navigate and trade in such a dangerous environment. This argument appears ill founded because it is well recognized that both Iran and Iraq conducted their activities against neutral shipping in and around the Gulf that are at issue here widely in disregard of the rules of international jus in bello, in particular the laws of maritime neutrality. I will exemplify such illegal activities on the part of Iran in the following analysis, but what has to be emphasized already at this point is that these activities were not justified simply because a state of war existed between Iran and Iraq.
B. Analysis
44. In my view, in the present case the purpose of the generic counterclaim is to compensate the United States for the harm done by Iran to commerce and navigation with the United States rather than for the harm done to specific vessels. For the reasons now to be outlined, I will argue (1) that Iran's actions constitute a violation of Article X, paragraph 1, of the 1955 Treaty, and (2) that the impediment on the freedom of commerce and navigation caused by those actions is evidenced by the increase in labour, insurance, and other costs resulting for the partici
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pants in commerce between the two countries during the relevant period40.
1. Iran's violation of Article X, paragraph 1
45. The United States described in detail the various actions taken by Iran which caused damage to vessels, higher navigational risks, and delayed passage41. Let us look at these hostile activities.
First, I consider undeniable that Iran laid mines for the purpose of sinking and damaging ships — also United States-flagged ships and other vessels engaged in commerce between Iran and the United States — sailing in the Gulf and surrounding waters. In this regard, the Texaco Carib-bean incident of 10 August 1987 is very instructive. A week after this tanker had struck a mine, Iran assisted in minesweeping operations in the area and destroyed a number of mines42. A Reuters wire report indicates that six mines were found in the area in the three days following the incident43. It is striking that Iran did not identify any of the mines which it found and destroyed; at least no such information appears in any of the reports. Then, from 21 to 28 September 1987, France and the United Kingdom conducted minesweeping operations in the area where the Texaco Caribbean incident had taken place. In the course of these operations, no mines could be detected44. On 10 October 1987 (that is, two months after the mining of the tanker), warships of the two countries returned to the site and undertook a second minesweeping operation. This time five mines were detected. The United Kingdom Ministry of Defence identified those mines as Iranian-manufactured SADAF-02 mines, on the basis of the serial numbers and characteristics of these weapons45. This evidence suggests that Iran had laid mines again, after it had cleaned up the area following the Texaco Caribbean incident. It also
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appears highly probable that the mines which Iran destroyed without identifying them back in August were its own46.
46. To the evidence related to the Texaco Caribbean incident can be added that resulting from minesweeping operations undertaken by the United States Navy off the coast of Kuwait in June 198747, and such operations undertaken by Kuwait itself in July 198748. The mines swept during those operations were identified as Iranian following the boarding and search of the Iran Ajr on 21 September 1987, because they were identical to the mines found on board that vessel. Then, in November 1987, minesweeping operations detected Iranian mines in the location where the Bridgeton had been hit. Those are only examples of the evidence showing that Iran repeatedly laid mines in the Persian Gulf during the relevant period.
47. Moreover, Iran gave no warning to ships travelling in the area that mines had in fact been laid. When belligerents lay mines, Article 3 of the 1907 Hague Convention (VIII) Relating to the Laying of Automatic Submarine Contact Mines requires that "every possible precaution must be taken for the security of peaceful shipping"49. Even States which did not ratify or accede to the Hague Convention, among them Iran50, have a duty of notification when laying mines51. This prohibition dating from 1907 was reconfirmed by the Court in its Nicaragua Judgment of 1986, which stated that:
"if a State lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humani
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tarian law underlying the specific provisions of Convention No. VIII of 1907" 52.
It is certainly not within the jurisdiction of the Court in the present case to determine whether Iran's failure to notify ships travelling in the Gulf of the existence of the mines it laid violated the above Hague Convention, or even the principles of humanitarian law underlying that Convention. Yet, it is obvious, and well within jurisdictional reach in the present case, that, had Iran notified neutral ships of its minelaying activities, it would have mitigated the disruption to the freedom of commerce and navigation. There can be no doubt that the laying of the mines, aggravated by Iran's failure to notify, created dangerous conditions for maritime commerce and navigation between Iran and the United States.
48. Secondly, ships engaged in commerce between Iran and the United States were attacked by Iranian aircraft53. Whether such attacks were launched from or with the assistance of the oil platforms is irrelevant at this stage. They were carried out by fixed-wing aircraft and helicopters54. These attacks, like the mining attacks, disrupted maritime commerce in the Gulf55.
49. Thirdly, ships engaged in commerce between Iran and the United States were also attacked by Iranian gunboats equipped with machine guns and rocket launchers56. The United States listed three attacks of this type in its counter-claim: the attacks on the Lucy, the Esso Freeport and the Diane51. Iran argued that close to no damage had been caused by those attacks. However, the impediment to freedom of commerce was not caused by damage to the ships but rather by the insecure environment which these attacks created for merchant shipping, including shipping between Iran and the United States.
2. Evidence of the impediment to freedom of commerce and navigation
50. Concerning, first, freedom of navigation, the Court stated in 1998 that it had jurisdiction "to entertain the United States counter-claim in so far as the acts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph l"58, thereby including the freedom of navigation. All the vessels mentioned in the United States counter-claim had a right
57 Ibid., p. 166, para. 6.08.
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to pass innocently, and follow the route of their choice, through Iranian territorial waters on their way to and from the United States, by virtue of the 1955 Treaty. I do not believe that the fact that merchant ships engaged in Treaty-protected commerce were in effect forced to navigate in a narrow channel in the Gulf created an impediment to their freedom of navigation, guaranteed by Article X, paragraph 1. In my view, this was a result of the general military situation in the Gulf rather than due to a deliberate hostile measure taken by Iran. It was simply advisable for ships to keep out of the Iranian war zone. The ensuing factual restriction to the passage of ships therefore does not amount to a violation of Article X, paragraph 1, of the 1955 Treaty by Iran.
51. On the other hand, Iranian attacks on ships engaged in commerce between the Parties through mining, and attacks by aircraft or patrol boats, did very well prevent these vessels from navigating freely and safely through the Gulf. Such vessels had to navigate so as to avoid the areas where Iranian mines had been discovered or were suspected to have been laid, thus effectively being forced to use indirect routes which were lengthier and therefore more expensive. In addition, ships began travelling at night for safety reasons. Thus, by creating conditions too dangerous for ships to travel by daylight, Iran also impeded upon the United States freedom of navigation.
52. Concerning, second, freedom of commerce, measuring the impact of a given hostile measure or action on such freedom is a difficult task. Nevertheless, there is substantial evidence supporting a finding that Iran's actions impeded on the freedom of commerce between the two countries guaranteed by Article X, paragraph 1, of the 1955 Treaty. Let me set out this evidence.
53. As concerns, first, minelaying, the Court declared in the Nicaragua case that, when a right of access to a port "is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce"59. In our case, as demonstrated above, the evidence shows that Iran repeatedly laid mines in order to disrupt neutral shipping in the Gulf, which necessarily included shipping between Iran and the United States. Thus, through these minelaying activities, Iran clearly infringed upon the freedom of commerce protected by Article X, paragraph 1, or in the words of the Court in Nicaragua, acted in "manifest contradiction"60 to the freedom of commerce guaranteed by the 1955 Treaty.
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54. The Iranian activities also led to an increase in labour costs. In general, wages of crew members had to be raised in order to reflect the increasingly dangerous sailing conditions in the Gulf. As travelling by daylight became more dangerous, ships began travelling at night to avoid attacks by Iranian helicopters, etc., resulting in a further increase of crew members' wages61 . For instance, Chevron, an American oil company whose tankers transported crude oil from the Gulf to the United States during the Tanker War62,
"gave each crewmember the option of disembarking before his or her ship entered the Gulf . . . Virtually all crewmembers stayed with their vessels, and they received a 100 percent pay bonus during the time that they were in the Gulf."63
55. Further, because of the war raging between the two countries, insurance premiums related to commerce in the Gulf also increased. For instance, two days following the Texaco Caribbean incident, Lloyd's underwriters in London decided to impose an immediately effective war-risk premium charge equivalent to 0.125 per cent of the insured value of the vessels' hull for ships visiting the United Arab Emirates ports before entering the Gulf64. At the time, most shipping insurance policies did not include damage caused by military hostilities in war zones, and com-panies were compelled to purchase additional insurance policies covering the risks the ships now faced in the Gulf65. These extra costs contributed to making shipping between the countries of the Gulf (including Iran) and the United States more expensive66.
56. Iran dismissed this argument by saying that such costs are
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unrecoverable under international law67. Whether or not there is merit to this claim is irrelevant in the present context. What is relevant, however, is that the increased cost of commerce constituted an impediment to the freedom of such commerce between the two Parties.
57. In addition, Iran argued that evidence relating to ships travelling to and from Kuwait and Saudi Arabia is "strictly irrelevant to any claim based on Article X (1) of the 1955 Treaty"68. This argument is to be dismissed since such evidence is indicative of the conditions — military, eco-nomic, etc. — prevailing in the Persian Gulf at the time for all its "users". The fact that commercial shipping to and from Kuwait was disturbed reflects a wider, more general context in which shipping in the Gulf was made more dangerous and thus more costly. Since all ships took similar routes within the Gulf, the conditions affecting commercial shipping between the United States and Iran also affected shipping between the United States and Kuwait or Saudi Arabia. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua,
"it is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of access to its ports"69.
58. To finally mention some other financial impact of Iran's actions on commercial shipping between Iran and the United States, before entering the Gulf, tankers had to remove any oil remaining on board for fear of dangerous explosions that could occur if a ship carrying oil struck a mine or was hit by a missile. The cost of such measures was $50,000 for each voyage in the Gulf70. Further, ships travelling through the Gulf had to sail at faster speed (17 knots instead of 12-14 knots), resulting in significant penalties and, incidentally, higher navigational risks71. In addition, while the passage through the Gulf was normally made without stopping, many vessels actually stopped twice en route to avoid a daylight passage and to allow management to assess the potential for attack. As a result, passage through the Gulf was longer, and thus more expensive for shipping companies. Chevron, for instance, incurred as much as $40,000 a day in additional operating costs while ships were stranded in the Gulf, a loss to which had to be added the
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amount of capital (oil barrels) tied up on board (as high as $50,000,000 for a very large crude oil carrier)72. Other costs included escort protection for ships to help them avoiding striking mines73.
C. Conclusions
59. By laying mines without warning commercial ships, by not notifying neutral ships of the presence of mines, and by harassing commercial shipping of all nationalities in the Persian Gulf also in other ways, Iran created dangerous and more onerous conditions for commercial shipping also between the two Parties74. As I have emphasized at the outset, the state of war between Iran and Iraq did not provide Iran with a general justification for its hostile activities because these were, for the greatest part, in violation of the laws of war and neutrality. Therefore, Iran ought to have been found in violation of its obligations under the 1955 Treaty, and the generic counter-claim of the United States should have been upheld.
60. To emphasize once again: in order to reach this conclusion, we need not look at each of the specific incidents described by the United States independently, or prove that each of these incidents is attributable to Iran. In fact, doing so would be inappropriate in the context of a generic claim. As long as it is clear that, during the Tanker War, Iran and Iraq were both engaging in actions detrimental to neutral commercial shipping in the Gulf (including, of course, commercial shipping between Iran and the United States)75, the particular extent to which Iran was responsible for these actions need not be determined with precision. It is sufficient to establish that Iran, because of the Iran-Iraq war, was responsible for a significant portion of those actions, and that such actions impaired the freedom of commerce between the United States and Iran guaranteed by the 1955 Treaty in ways not justifiable simply because of the existence of a state of war.
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61. An obstacle to admitting the United States counter-claim could be seen in the argument that the acts alleged to have constituted an impediment to the freedom of commerce and navigation under the Treaty cannot be attributed to Iran with certainty. Therefore, the argument would go, it is impossible to find Iran responsible for those acts. I will now proceed to show how this obstacle may be overcome.
62. One remark is to be made right at the outset: in the present case the problem of attribution poses itself almost exclusively with regard to minelaying by the parties to the Gulf war. But as referred to above, in addition to mine attacks, Iran also carried out attacks by helicopters, other aircraft and patrol boats, which largely contributed to the unsafe shipping conditions in the Gulf. Whereas identifying the State responsible for particular minelaying activities is not an easy exercise, identifying the State engaging in attacks by helicopters or patrol boats is much less difficult. Attribution of responsibility therefore can only be problematic with respect to minelaying. As for attacks by helicopters, patrol boats, etc., against ships engaged in commerce between Iran and the United States, there is hardly any doubt that they were carried out by Iran. Therefore, when we move away from the mines, so to speak, the generic counter-claim becomes free of the problem of attribution. Hence, the following reasoning is in essence devoted to the problem of attribution of minelaying in the Gulf.
63. As I have just demonstrated, attribution of responsibility for such minelaying activities certainly represents the principal challenge to the generic counter-claim. Against this challenge militates a sense of fairness. Yet, the thought that Iran could be held responsible for acts that could not be attributed to it beyond a certain threshold of proof is also troubling. The question we face is thus the following: how can we hold Iran responsible for acts which, even though they did create impediments to the freedom of commerce and navigation, cannot be attributed to Iran with certainty?
64. It is common knowledge that the Iran-Iraq war had a destabilizing effect on the regional economy, including American commerce going through the Gulf. This destabilizing effect is easily measurable by the increase in costs for doing commerce in the Gulf, as the evidence dis-cussed above shows. It is more difficult — if not impossible — to measure with any exactitude the negative impact of individual Iraqi or Iranian actions on the economic conditions of commerce, let alone on American commerce specifically. The damage caused by these actions, i.e. the impediment to the freedom of commerce and navigation protected by the 1955 Treaty, is indivisible and as such cannot be apportioned between Iran and Iraq.
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65. Responsibility, however, is another matter. It is clear that a series of actions taken by each party to the war necessarily disturbed the economic environment (even if unintentionally). But what conclusion is to be drawn from this? Should we hold both States equally responsible for the impediments caused to commerce and navigation? Or can neither of the two States be held responsible because it is impossible to determine precisely who did what?
66. In order to find a solution to our dilemma, I have engaged in some research in comparative law to see whether anything resembling a "general principle of law" within the meaning of Article 38, paragraph 1 (c), of the Statute of the Court can be developed from solutions arrived at in domestic law to come to terms with the problem of multiple tortfeasors. I submit that we find ourselves here in what I would call a textbook situation calling for such an exercise in legal analogy. To state its result forthwith: research into various common law jurisdictions as well as French, Swiss and German tort law indicates that the question has been taken up and solved by these legal systems with a consistency that is striking.
67. To begin with common law jurisprudence, in a well-known case heard by the Supreme Court of California76, the plaintiff sued two defendants for injury to his right eye and face as a result of having been struck by birdshot discharged from a shotgun while the two defendants had been hunting in an open range. It was admitted that both defendants had fired at a quail, and that one piece of birdshot had hit the plaintiffs eye and another his lip. However, there was no means of determining which injury had been caused by which defendant. The defendants argued that they were not joint tortfeasors because they had not been acting in concert, and that there was not sufficient evidence to show which of the two was guilty of the negligence that caused the injuries77.
The trial court had determined that "the negligence of both defendants was the legal cause of the injury — or that both were responsible" 78, even though "the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them"79. The California Supreme Court went on to quote Dean Wigmore, a United States authority on tort law:
"When two or more persons by their acts are possibly the sole cause of a harm . . . and the plaintiff has introduced evidence that the one of the two persons ... is culpable, then the defendant has the
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burden of proving that the other person . . . was the sole cause of the harm. The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all."80
As a matter of fairness to the plaintiff, the court then reversed the burden of proof: each defendant had to prove that he had not caused the injury. Since such proof could not be put forward, the court held both defendants liable. The court dismissed the defendants' argument that causation was lacking between their acts and the plaintiffs damage81. Most importantly, the court also dismissed the argument that the plaintiff should establish the portion of the damage caused by each tortfeasor in cases where there is a plurality of tortfeasors and where the damage cannot be apportioned among them82.
68. This solution, which has since been embodied in the Restatement of Torts83, is interesting in many ways. On the one hand, it recognizes the difficulty of a finding of responsibility where apportionment is impossible. On the other hand, it excludes as unfair a solution in which no one would be held responsible. Finally, this provides an answer by shifting the burden of proof on to each defendant. The solution provides the wrongdoer a way out — acknowledging the peculiarity of a situation where facts cannot be ascertained with certainty —, while at the same time ensuring the plaintiff recovery for his injury if the defendant fails to show his innocence.
69. The same solution was adopted by Canadian courts in Cook v. Lewis84. According to Markesinis and Deakin, English courts faced with the question of multiple tortfeasors are likely to take a similar approach85.
70. In French law, too, multiple tortfeasors (irrespective of whether they are acting in concert) causing an indivisible damage are each responsible for the entirety of such damage. Each tortfeasor is considered as having caused the entire prejudice to the victim, who can recover in full
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from any of them86. In any event, when French courts dealt with this question in the past, they typically discussed the extent of each tortfeasor's responsibility (partial or total) rather than responsibility as such. When unable to hold each defendant liable on the basis of a specific dam-age, French courts resorted to interpretations such as "collective breach of duty" or "collective duty to look after the object which caused the damage" even when tortfeasors had evidently not been acting with a common motive, merely out of fairness for the injured plaintiff87. In fact, this solution had already been adopted in Roman law in the form of the cause of action concerning "effusis et deject is" (things spilled or thrown out): whenever someone was injured by an object that had fallen from the unidentified window of an apartment building, all residents of such building were considered liable for the damage caused88.
71. The same principles can be found in Swiss law, where Article 51 of the Code des Obligations states that, when multiple tortfeasors acting independently of each other cause a damage that cannot be divided among them, any of the tortfeasors can be held responsible in full — just like in the case of tortfeasors acting in concert89. A commentary reads as follows :
"Whether the unlawful acts have been committed by a number of persons knowingly acting in concert (Art. 50, 'solidaritéparfaite ...'), or acting independently of each other, and even where liability is based on different legal grounds (Art. 51, 'solidarité imparfaite'), the injured party enjoys an entitlement to concurrent claims, without being concerned by any relationship between the joint tortfeasors ; he can only make a single claim to reparation, but each tortfeasor will be liable towards him in respect of that claim as a whole and, if he so wishes, the action need only be brought against any one tortfeasor."90
72. The way, finally, in which German tort law addresses our issue is
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virtually identical with the domestic solutions hitherto outlined. The pertinent provision of the German Civil Code (Bürgerliches Gesetzbuch), §830, reads as follows:
"1. If several persons through a jointly committed delict have caused damage, each is responsible for the damage. The same applies if it cannot be discovered which of several participants has caused the damage through his action.
2. Instigators and accomplices are in the same position as joint actors."
The first sentence of §830, paragraph 1, is not relevant to our case because it presupposes the pursuance of a common design by the tortfeasors. The same is valid regarding the provision's paragraph 2. However, the rule contained in the second sentence of §830, paragraph 1, is to the point: its function is precisely to spare the victim the difficult, indeed impossible, task of proving which one of several tortfeasors actually caused the damage. The rule's applicability depends upon three conditions: first, each of the participants must have engaged in the activity leading to loss or damage (irrespective of causality); second, one of the participants must necessarily have caused such loss or damage; but, third, it is impossible to determine which one of the participants did so, in whole or in part91.
73. Elevating the joint-and-several liability doctrine thus described to the level of international law in the present case would lead to a finding that Iran is responsible for damages, or impediments, that it did not directly cause92. Personally, I would find it more objectionable not to hold Iran liable than to hold Iran liable for the entire damage caused to the United States as a result of actions taken during the Iran-Iraq war. In fact, I see no objection to holding Iran responsible for the entire damage even though it did not directly cause it all. Remember that the question before us is whether Iran can be found in breach of its treaty obligations
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or not; in the present context I do not discuss any question of reparation. This issue would only have arisen at a later stage. With regard to that — now theoretical — issue and looking back at the range of solutions found in domestic tort laws, I find very pertinent the compromise course steered by the Supreme Court of California in the Sindell v. Abbott Laboratories case. In that case, the court did not feel compelled to dismiss all responsibility claims on the ground that some potential defendants were absent93. To the contrary, the court, following Summers v. Tice, held each of the defendants responsible and attempted, to the best it could, to approximate each defendant's responsibility. The compromise found by the court to account for the absence of interested parties was to hold the defendants liable only for part of the damage suffered by plaintiff, not for its entirety (I will return to the particular problems posed by the absence of a potential respondent in the present case in the final part of this section).
74. On the basis of the (admittedly modest) study of comparative tort law thus provided, I venture to conclude that the principle of joint-and-several responsibility common to the jurisdictions that I have considered can properly be regarded as a "general principle of law" within the meaning of Article 38, paragraph 1 (c), of the Court's Statute. I submit that this principle should have been applied in our present case to the effect that, even though responsibility for the impediment caused to United States commerce with Iran cannot (and ought not, see infra) be apportioned between Iran and Iraq, Iran should nevertheless have been held in breach of its treaty obligations.
75. Another authoritative source addressing the issue of a plurality of responsible States can be found in the Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 200194. The ILC's solution is in conformity with the result of the comparative research I have just presented. Article 47 states: "Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act."
76. In the context of the specific variant of the United States counterclaim, Article 47 would apply only if both Iran and Iraq were responsible for a given action — for instance, if Iran had carried out an attack against a ship engaged in treaty-protected commerce, jointly planning and co-ordinating the operation with Iraq. However, in the present case,
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the reality is such that the two States never acted in concert with respect to a specific incident, and thus it always was either Iran or Iraq which was responsible for a given incident. As a result, Article 47, which requires both States to be responsible for the same internationally wrongful act, cannot be applied to the specific counter-claim.
77. Applied to the generic counter-claim, on the other hand, Article 47 is very helpful. In the context of the generic counter-claim, the "internationally wrongful act" is constituted by the creation of negative economic, political and safety conditions in the Gulf rather than by a specific incident. The bringing about of this environment, taken as a whole, is attributable to both States, as it is common knowledge that they both participated in the worsening of the conditions prevailing in the Gulf at the time. The difference is clear: unlike the specific claim, where only one State is responsible for the act of violating international law, the generic claim falls within the scope of ILC Article 47 because the two States are responsible for the same act. It is the creation of dangerous conditions for shipping and doing commerce in the Gulf which constitutes the internationally wrongful act within the meaning of Article 47.
By application of Article 47 to the generic counter-claim, the United States could invoke the responsibility of either State, that is, also of Iran, individually. Thus, in the principle underlying Article 47, and in the "generic" identification of the internationally wrongful act, lies another basis on which Iran should have been held in violation of its Treaty obligations and the generic counter-claim upheld by the Court.
78. As a result, the problem of attributing responsibility in the face of factually "indivisible" wrongful acts — which I presented earlier as the principal obstacle to the admission of the counter-claim — could have been overcome pursuant both to the general principle that multiple tortfeasors can be held responsible individually even when the damage cannot be apportioned among them, and the principles embodied in ILC Article 47.
79. There remains one last question: it could be argued that dealing with the United States generic counter-claim in the direction indicated would by necessity lead the Court to finding that Iraq, too, violated international law — a pronouncement for which the Court has no jurisdiction in the present case. This is the essence of the so-called "indispensable-third-party" doctrine, consecutively accepted and rejected by the Court depending on the circumstances of the cases at hand.
80. The doctrine, first spelled out in the Monetary Gold case, holds that the Court has no jurisdiction to decide a case where a third State's "legal interests would not only be affected by the decision, but would
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form the very-subject matter of the decision"95. Since then, the Court dismissed the argument in some cases as one which could not prevent the Court from exercising jurisdiction among the parties, such as in the Nicaragua case, the Land, Island and Maritime Frontier Dispute (El Salva-dor/Honduras ) or the case of Certain Phosphate Lands in Nauru (Nauru v. Australia). In other instances, the Court did apply the Monetary Gold principle and refused to adjudicate absent the consent of the interested third State, such as in East Timor (Portugal v. Australia).
81. Taking a closer look at the factual circumstances of each of these cases, it appears that the concept of "indispensable third parties" has been interpreted restrictively by the Court. In the present case, the role of Iraq in impeding the freedom of commerce and navigation between the United States and Iran certainly does not constitute the subject-matter of the dispute. Moreover, any findings by the Court as to Iraq's behaviour would only rely on common knowledge and there would be no need for additional evidence (i.e., proving that, because of the war, Iraq, like Iran, contributed to the deterioration of the shipping conditions in the Gulf). For this reason, the present case would not have fallen within the restrictive ambit of the doctrine of the "indispensable third party". The mere fact that the war in the region involved a State not party to the present proceedings or, for that matter, to the bilateral treaty between Iran and the United States, could not have prevented the Court from deciding upon Iran's responsibility under this Treaty. The Court could have found Iran responsible without engaging in any detailed assessment of Iraq's actions, or rendering any decision as to Iraq's responsibility per se96.
82. Even more convincing, I believe, is the Court's dismissal in the Nauru case of Australia's argument that, Australia being only one of three States making up the Administering Authority under the Trusteeship Agreement, a claim could only be brought against the three of them "jointly" but not against each of them individually. The Court distinguished the issue of reparation in full from the question whether Australia could be sued alone97, and continued:
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"The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States."98
In the present case, where two States contributed to a single, indivisible damage without having acted in concert (unlike the three States in the Nauru case), the holding of the Court in the Nauru case applies with even greater strength: if the Court did not see fit to declare the Nauru case inadmissible on the basis that States acting "jointly" were absent from the proceedings, it could not have held inadmissible the United States counter-claim, in the context of which States were acting independently of each other.
83. In any case, I have already mentioned that, in contrast to mine-laying, helicopter and patrol boats attacks were clearly attributable to Iran and also contributed to creating an impediment to the freedom of commerce and navigation owed to the United States. Those attacks do not raise any issue pertaining to attribution of responsibility or the absence of Iraq from the proceedings. Had the Court rejected all other arguments, it should at least have upheld the United States counter-claim on that basis.
(Signed) Bruno SIMMA.
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SEPARATE OPINION OF JUDGE RIGAUX
[Translation ]
Asymmetry of the two Parties' positions — Reasoning underlying dismissal of the counter-claim — Absence of proof of Iran's responsibility — Non-American nationality of vessels attacked — Reasoning underlying dismissal of the original claim — Defence based on paragraph I (d) of Article XX of the ¡955 Treaty — Self-defence — Impact of the damage to the platforms from the Iraqi attacks — Effect of Executive Order 12613 of 29 October 1987— "Indirect" commerce between the territories of the High Contracting Parties — Contradiction between the reasons for dismissal of the original claim and the terms of the operative paragraph — Prohibition of the use of force as fundamental principle of international law.
* *
Paragraphs
I. THE ASYMMETRY OF THE Two PARTIES' POSITIONS 1-3
II. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL OF THE
COUNTER-CLAIM 4-13
III. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL OF THE ORIGINAL CLAIM 14-30
(a) The distinction drawn between the defence based on Article XX, paragraph 1 (d), of the 1955 Treaty and that
based on the right of self-defence 14-19
(b) Observations on the interpretation and application of Article X, paragraph 1, of the 1955 Treaty 20-29
(i) The causal link between the damage to the Reshadat platforms and the length of the period during which
they remained out of commission 21-25
(ii) The effect on freedom of commerce of Executive Order
12613 of 29 October 1987 26
(hi) The existence and relevance of "indirect" commerce between the territories of the two High Contracting Parties 27-29
(c) Is there not a contradiction between the reasons for the dismissal of the original claim and the terms of the operative paragraph ? 30
IV. THE PROHIBITION OF THE USE OF FORCE IS A FUNDAMENTAL PRINCIPLE OF INTERNATIONAL LAW 31-33
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I. THE ASYMMETRY OF THE Two PARTIES' POSITIONS
1. Seised of two crossing actions, the claim brought by the Islamic Republic of Iran against the United States and a counter-claim by the Respondent to the original proceedings, the Court has found that both claims must be rejected. In even-handedly dismissing both Parties, the operative paragraph of the Judgment presents a simplified image of their respective claims. I can accept point 2 and the first part of point 1 of the operative paragraph without being in agreement on all aspects of their underlying reasoning. On the other hand, I must distance myself more radically from the Court's finding set out in the second part of point 1. This opinion is thus a dissenting one only in relation to that part and concurring on the other elements of the operative paragraph.
2. In adopting two substantially equivalent dispositifs the Court ignores the asymmetry in the Parties' respective positions and in the dispute's underlying issues. Although each Party accuses the other of illegal use of armed force, which constitutes the legal subject-matter common to the two actions, the approach to verification of the facts and determination of jurisdiction under paragraph 1 of Article X of the 1955 Treaty will be radically different according to whether those issues are addressed in relation to the original claim or to the counter-claim.
As regards the facts, it is not disputed — and moreover could not be disputed — that three oil platforms belonging to the NIOC were intentionally destroyed or damaged by American armed attacks (see paras. 66 to 68 of the Judgment). By contrast, the charges against Iran, whether in regard to the laying of mines or to the firing of missiles at vessels navigating in the Persian Gulf, have not been proved to the satisfaction of the Court.
In addition to this asymmetry as to the facts, there is a comparable lack of symmetry in terms of the nationality of the objects of verified or alleged attacks. The oil platforms were an Iranian public asset, whereas the ships damaged by mines or missiles did not satisfy the condition of nationality required by Article X of the 1955 Treaty (see paras. 9 and 10 below), one of them being moreover excluded from the scope of that Article because it was a warship.
3. It follows from this dual asymmetry that Iran could have confined itself to disputing the truth and relevance of facts in respect of which the counter-claimant had failed to provide adequate proof, whereas the United States was obliged to seek out legal grounds which would strip the proven facts of their illegal character. The United States position varied on this point. In the period immediately following the armed attacks, the American Government relied on its "inherent right of self-defence" (see paras. 67 and 72 of the Judgment). Later, and in particular before the Court, justification was sought in paragraph 1 of Article XX of the
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1955 Treaty, although the self-defence argument was never totally abandoned. In reality, as is confirmed by the objection to jurisdiction raised before the Court, it was not initially the intention of the American Government to justify its military action under a provision of the 1955 Treaty. However, the Court was in any event bound to consider the international legality of the United States armed attacks both in light of paragraph 1 of the above-mentioned Article XX and of general international law governing the use of force (see para. 41 of the Judgment). It was to address the defences raised by the United States that the Court was compelled to interpret and apply Article XX of the 1955 Treaty in light of general international law.
II. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL
OF THE COUNTER-CLAIM
4. The counter-claim is dealt with in paragraphs 101 to 124 of the Judgment. Subject to the following observations, which relate in particular to paragraph 123, I have no difficulty in subscribing to the Court's findings and to point 2 of the operative paragraph. I do, however, regret the excessively narrow limits within which the Court confined the grounds for its decision. As it explains in paragraph 120 of the Judgment, the Court sets out "in chronological order" Iran's alleged attacks and, in relation to each of them, confines itself to examining whether the vessel mentioned in the counter-claim was engaged in commerce or navigation between the territories of the two High Contracting Parties (para. 120 of the Judgment). The overall conclusion, as set out in paragraph 121, is negative: "none of the vessels described by the United States as being damaged by Iran's alleged attacks was engaged in commerce or navigation 'between the territories of the two High Contracting Parties'".
5. Two further grounds, either of which would have sufficed for the counter-claim to be dismissed, were omitted by the Court.
The first concerns the attributability of the acts alleged against Iran. That the events in question occurred was not in doubt, but it still remained to be shown that they were attributable to an agency of the Respondent to the counter-claim. Not only did Iran consistently dispute that its responsibility had been established for any of the incidents set out in the American claim, but the Court itself was not convinced by the arguments presented by the American Government on this point (see in particular paras. 58-59 and 71-72 of the Judgment). However, the arguments relied on by the Court to dismiss the grounds of justification or defence put forward by the Respondent to the original action are not re-addressed when the counter-claim is considered.
6. During the war between Iran and Iraq, what became known as the "Tanker War" consisted in the use of force against ships, mainly oil
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tankers, flying the flag of States other than the two belligerents. For the latter, the export of petroleum products, their principal economic resource, was indispensable to the pursuit of the war, which required substantial financial resources. This was particularly so for Iran, which, unlike Iraq, was receiving no outside aid. Another difference between the two States concerned the means used to transport the oil abroad: whilst a part at least of the Iraqi oil was exported overland, the entirety of the Iranian oil had to be shipped by sea through the Persian Gulf.
The Tanker War has been analysed in two studies, which largely concur on the facts, one by an Egyptian researcher, Ms Nadia El-Sayed El-Shazly1, the other by an American professor, George K. Walker2. During the initial years of the war between Iran and Iraq (1981-1984), the main protagonist in the Tanker War was Iraq (Walker, p. 46), which sought to interrupt the export flow of Iranian oil and achieved a degree of success (Walker, p. 51). The Iranian attacks began only in February 1984 (El-Shazly, p. 202). The number of vessels, almost all of them tankers, hit by attacks by one or other of the two States exceeded 400 (Walker, p. 74), and according to El-Shazly (p. 307) reached a total of 463. Other sources, consistent with these, report that Iraq attacked 234 vessels and Iran 1633. Ms El-Shazly and Professor Walker provide relevant data regarding the composition of tanker traffic in the Persian Gulf. According to Walker:
"By 1986, US-flag foreign-trade tankers were almost non-existent; their role had been taken by other nations' vessels, particularly those flying flags of convenience but often beneficially owned by US business interests." (P. 37.)
This is confirmed by Ms El-Shazly:
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"Owners of ageing tanker fleets, registered with poorly regulated countries, motivated them to send their old tankers to the Gulf. They were mostly flying flags of convenience, manned by cheap and poorly trained crews, and had structural defects." (P. 44.)
These two statements are mutually corroborative and explain why, during the Tanker War, the United States assumed the duty of protecting freedom of navigation in general, including that of vessels not flying its own flag. Thus it is no surprise to find on the successive lists produced by the United States in this case two Panamanian vessels (Texaco Caribbean, Grand Wisdom), five Liberian vessels (Lucy, Diane, Stena Explorer, Stena Concordia, Sungari), and a Bahamian vessel (Esso Freeport). Apart from the two Kuwaiti tankers flying an American flag of convenience, to which I shall return, only the Esso Demetia bore the flag of a State (the United Kingdom) not belonging to the category of States notorious for the ease with which they register ships not having any real link with them and for the laxity of the control exercised by them over such vessels.
7. The most serious incident in the Tanker War, that which resulted in the greatest number of victims (36 killed and 21 seriously injured), was the destruction of the American warship USS Stark by two Iraqi Exocet missiles on 17 May 1987. The Iraqi Government expressed its regrets to the United States Government and in 1989 paid it compensation (Walker, p. 60; El-Shazly, pp. 282-292). Ironically, after this attack (whose only purpose may well have been to make it appear attributable to Iran and to provoke the internationalization of the war), the position of the United States continued to be favourable to Iraq. It was at the end of that same month (29 May) that Assistant Secretary of Defense, Richard Armitage, stated: "We can't stand to see Iraq defeated."4 Ms El-Shazly, who cites this statement, adds: "Thus he sealed the death certificate of US neutrality in the Iran-Iraq war, and this myth was officially laid to rest." (P. 291.)
A no less paradoxical consequence of the Iraqi attack on the USS Stark is that it accelerated the decision to reflag under American colours tankers belonging to a Kuwaiti State company, the Kuwaiti Oil Tanker Company (KOTC). Negotiations lasted several months, because the proposal met with resistance in the United States, particularly in Congress.
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What was ultimately decisive was the fact that during the same period the Soviet Union had offered Kuwait a similar service. The American decision may be seen as the expression of its determination not to allow the USSR to gain a foothold in the Persian Gulf (El-Shazly, pp. 237, 271282, 301; Walker, pp. 60-62)5. One of the two United States-reflagged vessels mentioned in the counter-claim, the Bridgeton, had also changed its name (when flying the Kuwaiti flag, it had been called the Al Rekkah; El-Shazly, p. 292). It should further be noted that China and France had refused to allow Kuwaiti tankers to fly their flags, whilst the United Kingdom had stated that it was prepared to protect them without any change of flag (El-Shazly, p. 273). The totally artificial nature of the reflagging, an act of expediency inspired by the circumstances, can be shown by the fact that from January 1989 these vessels were returned to the Kuwaiti flag ("deflagging": see Walker, p. 73; Wiswall, p. 623, note 13).
In order to persuade the Senate Foreign Relations Committee that the American reflagging of 11 Kuwaiti tankers was justified, Michael H. Armacost, Under Secretary for Political Affairs, gave a detailed explanation of American policy in the Persian Gulf:
"It is to frustrate Iranian hegemonic aspirations that the Arab gulf states continue to support Iraq. It is for similar reasons that other close friends, such as Egypt and Jordan, also assist Iraq . . ."6
The aid to Kuwait was subsequently justified by the financial support provided by that State and by other Arab countries to Iraq.
"We understand why Kuwait and many Arab nations believe their own security and stability depend on Iraq not collapsing before Iran. We do not wish to see an Iranian victory in that terrible conflict.
Nevertheless, the United States remains formally neutral in the war."7
8. Only from a rapid and superficial reading of Security Council resolution 552 (1984) of 1 January 1984 can any condemnation, even an implicit one, of the attacks attributed to Iran be inferred. The resolution was adopted following a letter of 21 May 1984, "in which the Repre-sentatives of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates complain[ed] against Iranian attacks on commercial ships en route to and from the ports of Kuwait and Saudi Arabia". However, the State accused of these attacks is identified only in the first
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recital of the preamble to the resolution, from which the text cited above is taken. The operative part of the resolution confines itself to reaffirming "the right of free navigation" (point 1), and applying this principle to "shipping en route to and from all ports and installations of the littoral States that are not parties to the hostilities" (point 2), to calling upon "all States ... to refrain from any act which may lead to a further escalation and widening of the conflict" (point 3), and to condemning "the recent attacks on commercial ships en route to and from the ports of Kuwait and Saudi Arabia" (point 4). There is no trace of any condemnation of Iran, despite its being clearly named in the letter of 1 June 1984, and it can well be appreciated that the Security Council, which had not named — or not dared to name — the aggressor in the war launched in 1980, could hardly condemn Iran at a time when, in 1984, the initial and almost exclusive responsibility for the Tanker War lay with Iraq. It would thus be wrong to confuse the re-statement in the resolution's first recital of the text of the complaint by the littoral States of the Persian Gulf with the Council's own assessment. It may be considered, a contrario, that, inasmuch as it did not expressly condemn the State named in the document whereby it had been seised, the Security Council was deliberately refraining from issuing the specific condemnation sought by the States which had signed the letter8.
9. There was a further ground for rejecting the counter-claim, namely that which could — and should — have been derived from the nationality of the vessels victim of the attacks wrongly attributed to Iran.
If we apply the factor connecting a ship to a State by virtue of its flag, i.e. its registration, to the list referred to in paragraph 6, we observe that only one vessel, the USS Samuel B. Roberts, indisputably satisfied that condition, but this was a warship, which, as such, must be exempted from application of the 1955 Treaty, as the Court found (para. 120 (i) of the Judgment). Apart from two Kuwaiti ships reflagged in the United States, the Bridgeton and the Sea Isle City, which also merit special attention, none of the tankers which Iran is accused of attacking was under the United States flag. These were the Texaco Caribbean, a Panamanian vessel, the Lucy and the Diane, registered in Liberia, and the Esso Freeport, flying the Bahamian flag. Even if we accept the expanded list, first provided in the Rejoinder of 23 March 2001, we find that it does not include any vessel satisfying the nationality requirement. Three of these vessels, the Siena Explorer, the Stena Concordia and the Sungari, flew the Liberian flag, one was Panamanian, the Grand Wisdom, and the last, the Esso Demetia, British.
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Both Article 6 of the Geneva Convention on the High Seas of 29 April 1958 and Article 92 of the Montego Bay Convention of 10 December 1982 recognize only one nationality for a ship, that of the flag State. This principle has been applied by the Court of Justice of the European Communities9.
The United States attempts to respond in two ways to the question whether vessels having the nationality of a third State fall within the scope of the jurisdictional clause in the 1955 Treaty. First, it argues that it had assumed responsibility for protecting freedom of navigation in general in the Persian Gulf during the war between Iran and Iraq. It is true that nothing prohibited the United States from taking this initiative, but it cannot be relied on against Iran for purposes of applying and interpreting the 1955 Treaty. Moreover, none of the States appearing on the list — neither the Bahamas, Liberia, Panama nor the United Kingdom — gave notice to Iran of any claim and none of them entrusted the defence of its interests to the United States. In paragraph 123 of the Judgment the Court considered that,
"in the circumstances of this case, a generic claim of breach of Article X, paragraph 1, of the 1955 Treaty cannot be made out independently of the specific incidents whereby, it is alleged, the actions of Iran made the Persian Gulf unsafe for commerce and navigation, and specifically for commerce and navigation between the territories of the parties".
In the second sentence of the second subparagraph of paragraph 123, and in paragraph 124, the Judgment finds that for this reason it must dismiss the United States claim.
10. Another justification offered by the United States consists in an attempt to identify an "American interest" in making good flag States' failure to act. It is sufficient to point out, without addressing in detail the arguments made in this regard, that they run directly counter to the very firm position which the Court took more than 30 years ago in the Barcelona Traction case and has never repudiated, i.e., that by forming a company under the laws of a particular State {or, as in the present case, by registering a ship in a particular country), the shareholders in the company (or the shipowners) had sought certain advantages for which there was a countervailing consideration, i.e., that that State alone was per
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mitted to grant its diplomatic protection to the company (or to rely on a bilateral treaty in its favour). One of the reasons given by the Court for not "adopting] . . . the theory of diplomatic protection of shareholders as such", that it would open "the door to competing diplomatic claims" and "could create an atmosphere of confusion and insecurity in international and economic relations" (case concerning Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I. C.J. Reports 1970, p. 49, para. 96), applies just as strongly to the right of protection of ships, which could potentially be exercised concurrently by the flag State, the national State of the individual or undertaking holding a majority of the ownership interests in the undertaking owning the vessel, by the State of the cargo owner, etc. In respect of the counter-claim brought by the United States, the principle deriving from the Judgment in the Barcelona Traction case is of particularly compelling force because the freedom of navigation protected by Article X, paragraph 1, of the 1955 Treaty is not freedom of navigation in general, on all seas throughout the world and in favour of all vessels whatever their flag, but freedom of navigation of "[vjessels under the flag of either High Contracting Party" exercising that freedom "[bjetween the territories of two High Contracting Parties". If both of these conditions are not satisfied and one of them remains unmet, the claim does not fall within the jurisdiction of the Court as defined in Article XXI, paragraph 2, of the Treaty. In respect of vessels not meeting the conditions laid down in Article X, paragraph 1, the Court lacks jurisdiction to decide whether the damage they suffered is imputable to Iran.
Three of the vessels referred to in the above-mentioned list merit special attention. The Samuel B. Roberts is excluded as a warship (see paragraph 9 above).
Equally, the reflagging of the two Kuwaiti tankers does not bring the alleged damage within the scope of Article X, paragraph 1. Such reflagging, carried out during the war between Iran and Iraq in order to place under the aegis of the United States vessels having the nationality of a State which supported Iraq in its war effort against Iran, cannot be relied upon against Iran. It should be noted that by 1989 the Kuwaiti ships which had temporarily adopted the United States flag had already recovered their original registration ("deflagging")10. Moreover, since this change occurred before the date on which the counter-claim was submitted, that claim fails to satisfy the rule requiring continuity of the bond of nationality. Further, the terms under which these two vessels
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were refiagged with a United States flag of convenience prevent the counter-claim from satisfying another condition laid down by Article X, paragraph 1, i.e., it cannot claim the benefit of freedom of commerce and navigation "[bjetween the territories of the two High Contracting Parties", because under the United States own domestic law, vessels having thus obtained United States registration are not granted access to United States ports.
11. Several passages in the Judgment refer to the "context of the general events that took place in the Persian Gulf between 1980 and 1988, in particular the armed conflict that opposed Iran and Iraq" (para. 23 of the Judgment). It is only in veiled terms that in the following sentence the Court implies that Iraq was the aggressor State. The truth of this is generally accepted today, and I feel it would be not unhelpful to indicate what the attitude of third States was, and in particular the United States, in the course of the conflict.
At the start of the war, the United States and the other western Powers adopted a wait-and-see attitude marked by a certain cynicism: after the fall of the regime of the Shah of Iran, the alliance with whom had been one of the key elements in America's Middle East policy, there was a vacuum in the region. At the start of the war, neither the United States nor the other western Powers wished to see a total victory by either of the two belligerents. They were waiting — and hoping — to see the two adversaries exhaust themselves without either being able to achieve hegemony in the region. The fact that neither of the two belligerents was named as aggressor by the Security Council enabled the other States to sell them arms, whereas it would have been unlawful to provide military aid to a State defined as the aggressor. The relations between the United States and Iran had just gone thorough a particularly severe crisis following the hostage-taking at the United States embassy in Tehran, and the Court had condemned Iran for this11. For their part, the Arab States of the Gulf had no particular sympathy for the anti-monarchist views of the Islamic Republic of Iran. All of these circumstances encouraged Iraq to attack Iran.
After Iraq's initial successes, which enabled it to occupy part of Iranian territory, Iran succeeded in reversing the position, and it was then that the United States began its about-turn. Compliance with the obligations of neutrality was not incompatible with American interests in the Middle East as long as an Iranian victory appeared out of reach. By contrast, as soon as Iraq's chances appeared to be fading, it became necessary to restore the balance between the opposing forces. It was also from then on that American aid to the Iraqi war effort increased substantially, a phenomenon hardly compatible with the maintenance of strict neutrality
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in relation to the two belligerents: the launching of "Operation Staunch", a campaign seeking to dissuade the western allies from selling arms to Iran (El-Shazly, p. 215); the transmission to Iraq of satellite intelligence (El-Shazly, p. 323); authorization for the sale of 60 helicopters "for agri-cultural purposes", and a loan of $460 million for the purchase of rice (Walker, p. 47). In addition, there was significant diplomatic support : in 1982, Iraq was removed from the list of countries supporting international terrorism and in November 1984 diplomatic relations were resumed (Walker, pp. 48, 55). Ms El-Shazly summarizes American policy during the war between Iran and Iraq in the following terms :
"Washington conducted a realpolitik strategy. It repeatedly proclaimed its neutrality, stated its interests and clear objectives in the Gulf, hand in hand with a concealed agenda, the blueprint of which combined the leaning toward Iraq with the yet undisclosed licensing of arms sales." (P. 207.)
While Iran may have failed to establish decisively the relationship between the American attack on Sassan and Sirri and Iraq's reconquest of the al-Faw area close to Basra, the coincidence of the two events is disturbing to say the least. The operation termed "Praying Mantis" resulted in the destruction of the two platforms and of two Iranian frigates and was considered by Professor Walker as "[t]he largest combined air and surface engagement in war at sea for the US Navy since World War II" (p. 69).
While it is admittedly not for the Court to rule on the support given to the Iraqi war effort by Saudi Arabia or by Kuwait, who are absent from the present proceedings, yet the case of Kuwait deserves special mention because of the aid provided by the United States to that State, in par-ticular by authorizing the American reflagging of 11 Kuwaiti tankers. On this point, I cannot do better than quote a distinguished American international lawyer, Professor Louis Henkin:
"In the Gulf, some spokesman said recently, the United States remain formally neutral. But even if the concept of neutrality can apply in some cases, can the United States be neutral here? No one would accuse us of being a friend of Iran, but there is a strong case that Iraq is probably the aggressor. No one has mentioned that for some years now. It is true that the Security Council refrained from so holding, in part because the United States would not permit it, or because the Russians would not permit it. That raises some questions, but that doesn't change the law; in the absence of a Security Council determination that one party was the aggressor, do the laws of the Charter not apply? In the absence of such a finding by the
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Security Council, are States free to be neutral even if it is clear that one side launched the war in violation of the Charter? Is Kuwait neutral, or is it, as the first speaker suggested, perhaps a co-belligerent? Is the United States supporting Kuwait, and, if so, are we also co-belligerents? If so, we may not be only supporting the aggressor but if the old laws of war apply — we may also be violating the law of war.
I suggest we may not only have slipped into the war but, from the international lawyer's point of view, we seem to have slipped into a particular position of international law without much thought about it and without any thought to the long-term consequences. In fact, we seem to be taking seriously the outdated law of war, but not the contemporary law against war. In the process we may have eroded both. At least it cannot be said that the law on neutrality and belligerency is what it was before 1945." 12
12. On 9 December 1991 the supplementary report of the United Nations Secretary-General on the implementation of Security Council resolution 598 (1987) (doc. S/23273) expressed in unequivocal terms the view that Iraq was responsible:
"6. The Iraqi reply to my letter of 14 August 1991 is not a substantial one; therefore I am bound to rely on explanations given by Iraq earlier. That these explanations do not appear sufficient or acceptable to the international community is a fact. Accordingly, the outstanding event under the violations referred to in paragraph 5 above is the attack of 22 September 1980 against Iran, which cannot be justified under the Charter of the United Nations, any recognized rules and principles of international law or any principles of international morality and entails the responsibility for the conflict.
7. Even if before the outbreak of the conflict there had been some encroachment by Iran on Iraqi territory, such encroachment did not justify Iraq's aggression against Iran — which was followed by Iraq's continuous occupation of Iranian territory during the conflict — in violation of the prohibition of the use of force, which is regarded as one of the rules of jus cogens."
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The supplementary report confines itself to responsibility for land operations; it contains no observation regarding the war at sea, and in particular the Tanker War.
13. Thus there were two grounds for dismissal of the counter-claim that were not invoked by the Court. The first is that the claim was not justified in terms of fact (paras. 5-7 above), the second being that it did not satisfy the nationality requirement in respect of the vessels attacked during the war between Iran and Iraq. Yet either of these two grounds should logically have taken precedence over the sole ground relied on in the Judgment, namely that none of the vessels "was engaged in commerce or navigation 'between the territories of the two High Contracting Parties'" (para. 121 of the Judgment).
The choice of this ground alone is doubtless explicable by the Court's desire to establish an artificial parallel between the two claims, both being rejected for the same reason.
III. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL
OF THE ORIGINAL CLAIM
(a) The Distinction Drawn between the Defence Based on Article XX, Paragraph I (d), of the J 955 Treaty and That Based on the Right of
Self-defence
14. In paragraph 78 of the Judgment the Court finds that the actions carried out by United States forces against Iranian oil installations cannot be justified either under Article XX, paragraph 1 (d), of the 1955 Treaty or as acts of self-defence. This is a situation analogous to that in criminal law where one and the same act is covered by two offences, and thus falls to be assessed by reference to the terms of each of those offences.
Paragraph 41 of the Judgment fails to do proper justice to this dual characterization. Thus in that paragraph the Court interprets subparagraph (d) in light of general international law without first addressing the issue of the High Contracting Parties' intention. And yet this is a provision which occurs in a number of treaties of friendship similar to that signed in 1955 by Iran with the United States and also in Article XXI of the GATT, and on which there exists a substantial body of comment in the literature.
Paragraph 1 (d) reads as follows:
"Article XX
1. The present Treaty shall not preclude the application of measures :
(d) [French translation: Ou nécessaires à l'exécution des obligations de l'une ou l'autre des Hautes Parties contractantes relatives au maintien ou au rétablissement de la paix et de la sécu
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rite internationales ou à la protection des intérêts vitaux de cette Haute Partie contractante sur le plan de la sécurité.]"
This translation, which is taken from the United Nations Recueil des traités, does not correspond entirely to the English-language text of the Treaty, which is equally authoritative with the original Farsi. The English text reads as follows:
"(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests".
In repeating the adjective "necessary", the original text avoids an ambiguity to which the French translation could lead. The repetition brings out more clearly the distinction between what is necessary to fulfil a State's international obligations and what is necessary to protect the essential (or vital) interests of the State itself. In the French translation, the repetition of the conjunction "ou" ("or") could suggest that the State is under a duty to protect its own interests. On the other hand, the distinction between the adjective "essential" and the French translation "vitaux" ("vital") appears to be of little significance. In any event, in case of doubt we should rely on the English text.
15. The question of interpretation faced by the Court today was also addressed by it in the case concerning Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America) in relation to Article XXI, paragraph 1 (d), of the Treaty of Friendship, Commerce and Navigation concluded in 1956 between the United States and Nicaragua, which was drafted in similar terms to Article XX, paragraph 1 (d), of the 1955 Treaty with Iran13.
A passage from the 1986 Judgment has been given differing interpretations by the Parties to the present dispute. What is the relationship between the use of force exceptionally permitted in exercise of the right of self-defence and the measures which a State may take because they are "nécessaires à la protection de ses intérêts vitaux sur le plan de la sécu-r//é/necessary to protect its essential security interests"? (The English text is clearer and more concise.)
According to the 1986 Judgment:
"224. On the other hand, action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI as 'necessary to protect' the 'essential security interests' of a party.
It is difficult to deny that self-defence against an armed attack cor
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responds to measures necessary to protect essential security interests. But the concepts of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past. The Court has therefore to assess whether the risk run by these 'essential security interests' is reasonable, and secondly, whether the measures presented as being designed to protect these interests are not merely useful but 'necessary'." 14
In reality, there are three issues here: what are the circumstances in which, respectively, Article 51 of the Charter and Article XX of the 1955 Treaty apply? What measures is it lawful to take in either case? What power of review does the Court have over the lawfulness of action taken by a State having accepted a jurisdictional clause?
16. The answer to the first question can be gleaned more clearly from Article 51 of the Charter than from paragraph 1 (d) of Article XX of the 1955 Treaty. Exercise of the "inherent right of individual or collective self-defence" is authorized only where a Member of the United Nations has been the subject of "an armed attack". It is necessary, but suffices, that the facts alleged in support of the exercise of self-defence satisfy this requirement. The situation referred to in paragraph 1 (d) of Article XX of the 1955 Treaty is described in much vaguer terms: in order for the measure taken to satisfy the requirements of this provision, it must be necessary to protect a State's essential security interests. This requirement contains three undefined or poorly defined concepts: "necessary to protect", "essential" and "security".
There is a similar difference in regard to the form and scope of the authorized response. In a system where self-defence constitutes the sole exception to the prohibition of the use of force laid down in Article 2, paragraph 4, of the Charter, Article 51 authorizes, to the extent necessary and subject to compliance with the principle of proportionality, a reaction to an "armed attack" by the use of force which, in other circumstances, would have been prohibited. In paragraph 1 (d) of Article XX of the 1955 Treaty, the lack of definition in regard to the relevant circumstances is matched by a vagueness in respect to the "measures" which a State may take where its security is at risk.
What measures may be considered "necessary" (subject always to respect for the principle of proportionality) to protect a State's essential security interests? More specifically, the lack of a clear definition of
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"necessity" operates at two levels: the characterization of the situation and the measures which it justifies.
Of the three questions, the third is the easiest. If the application of Article 51 of the Charter or of Article XX of the 1955 Treaty becomes the subject of a judicial dispute, then the competent court undoubtedly has the power — and indeed the duty — to verify that the rules of interna-tional law have been applied correctly. The Court had already reached this conclusion in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) :
"But by the terms of the Treaty itself, whether a measure is necessary to protect the essential security interests of a party is not, as the Court has emphasized (paragraph 222 above), purely a question for the subjective judgment of the party; the text does not refer to what the party 'considers necessary' for that purpose." 1S
This explanation is necessary in order to dispel an apparent ambiguity in the text of paragraph 224 of the 1986 Judgment: action taken in self-defence may be considered as part of the wider category of measures described in Article XXI only on the implied condition that the State exercising its right of self-defence has a choice from among various types of forcible action, some more far-going than others. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court itself stated that it was "necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms" 16. By the same token, the proposition that "the concept of essential security interests certainly extends beyond the concept of an armed attack" is acceptable only if it signifies that there is a difference in kind (rather than the one of degree suggested by the phrase "extends beyond") between an armed attack and the various other kinds of conduct of a State against which another State considers it "necessary", by appropriate measures, to protect its essential security interests.
17. The question to be answered for purposes of applying and interpreting Article XX, paragraph 1 (d), of the 1955 Treaty is whether the use of force falls within the "measures" that a State may take to protect its essential security interests. Or, in other words, do the measures from which a State may choose in order to protect its essential security interests include the use of armed force against another State? For that was certainly what the attack on the oil platforms was, since these, being located on Iran's continental shelf, fall within the exclusive jurisdiction of that State.
There are two ways of answering the question as posed in these specific terms. Either we accept that paragraph 1 (d) of Article XX falls to be
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considered in some form of isolation which cuts it off from the other rules of international law, in particular the United Nations Charter and the norms of customary international law prohibiting the use of force, or we accept that the prohibition of the use of force in accordance with the terms of Article 2, paragraph 4, of the Charter and with customary international law forms part of jus cogens, which would prohibit States from derogating therefrom in their bilateral treaty relations. For that would indeed be the consequence to which the first reply to the question would lead: paragraph 1 (d) of Article XX would permit either of the contracting States to use armed force against the other State in circumstances which would not have to satisfy the requirements of Article 51 of the Charter but which it would be entitled to take under the — undefined — guise of "measures to protect its essential security interests".
18. In its 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did indeed reject the United States defence based on paragraph 1 (d) of Article XXI of the Treaty of Friendship with Nicaragua (having first rejected the self-defence argument). However, in holding that "the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified as 'necessary' to protect the essential security interests of the United States" 17, the Court does not expressly explain the reason for its decision: is it because the actions attributed to the United States go beyond the nature and scope of measures which may be taken under Article XXI of the Treaty of Friendship, or, more simply, because such actions were not necessary to protect essential security interests, but would not have been unlawful if they had satisfied that requirement? Point 2 of the operative paragraph of the 1986 Judgment expressly rejects "the justification of collective self-defence maintained by the United States of America", whilst no other part of that operative paragraph refers to Article XXI of the Treaty of Friendship.
In order to decide that the measures which a State is authorized to take under paragraph 1 (d) of Article XX of the 1955 Treaty and numerous similar provisions in other bilateral treaties of friendship and commerce do not include the use of force, the Court need not have recourse to the United Nations Charter or the customary rules of international law on the use of force. It is open to the Court, while confining itself to interpreting and applying the bilateral treaty — its sole basis of jurisdiction — to conclude, simply by interpreting paragraph I (d), that the High Con-tracting Parties did not intend to confer upon one another a mutual freedom to have recourse to armed force in the context of a measure necessary to protect essential security interests.
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American jurists who have written commentaries on treaties of friendship or on the GATT article which similarly authorizes derogations from the Agreement's other provisions where this is necessary to protect a State's essential security interests categorically reject the idea that the use of armed force can be one of the "measures" envisaged by such a provision 18. M. J. Hahn very clearly excludes the use of force in the context of measures authorized under Article XXI (d) of the GATT Rules. He then gives a list of examples, taken from State practice, of the implementation of that Article, but not one of them includes the use of force. An embargo or measures of economic retaliation are what are generally used, such as the United States embargo on Cuba (Hahn, p. 571).
Not one of the recent works on GATT even suggests that Article XXI of the GATT would authorize a State to use force to protect a serious security interest. According to Andreas F. Lowenfeld:
"Well before the United Nations Security Council began to use economic sanctions as a primary tool, individual countries used economic sanctions as an important instrument of foreign policy, less dangerous than military force, but more serious — and sometimes more effective —- than diplomacy alone ... A variety of sanctions have been employed, from total embargoes to selective controls on exports and imports, to freezing of assets, blocking of financial transactions, and restrictions on shipping and aviation."19
The same applies to measures of retaliation or reprisal, with which the American action against the oil platforms would bear a certain comparison, if armed reprisals were not prohibited by general international law20 (see also the resolution of the Institut de droit international,
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"Régime des représailles en temps de paix", Art. 4, Annuaire de l'Institut de droit international, 1934, p. 709).
19. It may be concluded on this point that the Court could have better distinguished between the arguments deriving from the exception provided for in Article XX, paragraph 1 (d), of the 1955 Treaty and those based on the right of self-defence. While the Court did indeed reject both defences relied on by the United States, it failed to rule expressly on the specific nature of subparagraph (d). Only in the event of a finding that the High Contracting Parties had intended to authorize each other to derogate from the provisions of the Charter concerning the use of force should the Court have decided that such an attempt to circumvent a peremptory norm of international law (jus cogens) was outside their treaty-making power.
This analysis is not at variance with the solutions reached by the Court in the case concerning Military and Paramilitary Activities in and against Nicaragua. The 1986 Judgment is neither clear nor decisive on issues concerning the relationship between the clause in the Treaty of Friendship and the Charter rules on self-defence.
(b) Observations on the Interpretation and Application of Article X,
Paragraph 1, of the 1955 Treaty
20. The Judgment devotes lengthy passages to the issue of whether Iran's claim falls within the terms of Article X, paragraph 1, of the 1955 Treaty (paras. 79-98 of the Judgment). The questions of interpretation on which I feel myself bound to differ from the Court's decision and its reasoning relate to the following points:
(i) in respect of the Reshadat platforms, the finding that, because the damage which they had suffered as a result of an attack by Iraq had rendered them inoperative, there was no activity capable of being interrupted by the subsequent American attack; (ii) in respect of the Salman and Nasr platforms, the finding that the export of Iranian oil to the United States was in any event prevented for a different reason, namely the embargo on imports of
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Iranian oil imposed by Executive Order 12613 of 29 October 1987;
(iii) the rinding that Iran had not succeeded in showing that the damage to the Iranian oil platforms had interfered with freedom of trade "between the territories of the High Contracting Parties".
(i) The causal link between the damage to the Reshadat platforms and the length of the period during which they remained out of commission
21. At the time when the Iranian oil platforms were attacked by the United States armed forces, some of them were already temporarily out of commission because of damage previously caused by Iraqi attacks. According to the statements of Mr. Zeinoddin and Mr. Sellers at the hearing on 18 February 2003 (CR2003/6, pp. 39 et seq), the R-7 platform of the Reshadat complex was attacked by Iraq on 19 October 1986 and this temporarily stopped oil production at the Reshadat and Resalat complexes. A second Iraqi attack occurred on 15 July 1987, when repair work was under way, but it was anticipated that production would resume at the end of October 1987 at a level of 20,000 barrels per day. The Salman complex, made up of seven interconnected platforms, was also attacked by Iraq on 16 October 1986 but suffered only light damage and production resumed three days later.
The United States attacks on 19 October 1987 completely destroyed the Reshadat production complex and R-7 at a time when engineers were busy repairing it. The R-4 platform was also attacked. Production could only resume at a lower level three years later and did not reach its normal level until 1993. On 18 April 1988 the United States attacked the Salman and Nasr complexes. The Americans had left explosives on the power generating platform but the detonator failed. The damage was however substantial enough that production could not return to its normal level until 1993. According to the information provided by Mr. Zeinoddin at the hearing on 18 February 2003 (CR2003/6, pp. 32 et seq.), the Reshadat and Resalat complexes, according to the diagram at tab No. 7 in the judges' folder submitted by the Applicant, worked together in the following way. The Reshadat complex consisted of three drilling and production platforms (R-3, R-4 and R-7) linked to a total of 27 oil wells. The oil produced by the R-3 platform was transported by submarine pipeline to the R-4 platform and thence, together with the crude oil extracted at the R-4 platform, to the R-7 platform, from which the oil, after initial water and gas separation, was transported by submarine pipeline to Lavan Island, 108 km away.
22. The Resalat offshore complex consisted of three linked drilling and
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production platforms, referred to as R-l, to which 14 wells were connected. The crude oil produced by them was transported by a 29-km submarine pipeline to the Reshadat R-7 platform, where it underwent the same treatment as the oil produced by the R-3, R-4 and R-7 platforms. Thus, R-7 was the key platform on which the whole of the Reshadat and Resalat fields depended.
The Salman complex, a diagram of which appears at tab No. 9, consisted of seven interconnected platforms, including one drilling and two production platforms. Oil from 21 wells was transported by pipeline to this complex and from there to Lavan Island after initial water and gas separation. Like the crude oil from Reshadat and Resalat, oil from Salman underwent further water and gas separation on Lavan Island and was either refined there for domestic consumption or exported.
The Nasr complex, a diagram of which appears at tab No. 11, comprised a central platform (A), a flaming point and six oil producing platforms grouped around the central platform, supplied by 44 wells in the Sirri field and four wells in the Nosrat field. Crude oil from all of these wells was transported by submarine pipeline to the central platform and from there to Sirri Island for secondary processing and export, as there are no refineries on Sirri Island. Unlike the two complexes previously described, the Nasr complex was not attacked by Iraq and was functioning normally at the time of the United States attack.
Normal daily production at Reshadat-Resalat was 20,000 barrels, at Salman 125,000 barrels. At the time of the United States attack, the Nasr complex was producing some 36,000 barrels daily, although it was capable of producing 120,000 barrels per day.
23. In order for Article X, paragraph 1, to apply to the destruction of the three oil complexes of Reshadat-Resalat, Salman and Nasr, three conditions must be satisfied: the platforms must have been the site of commercial activity, freedom of commerce must have been prejudiced and that freedom must have been exercised, or been capable of being exercised, between the territories of the two High Contracting Parties.
By their very nature, the three oil platform complexes.were intended for the production, processing and transport of oil to a place where it could be "placed in commerce". The fact that platforms are artificially erected on the continental shelf of a State for the purpose of extracting oil resources lying in that State's exclusive economic zone and that advanced technology is applied to produce crude oil with a view to its commercialization unquestionably places the resultant activities within the realm of the exercise of "freedom of commerce". To this must be added the vulnerability and therefore fragility of the effective enjoyment
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of that freedom. The damage inflicted on just one part of facilities which are necessarily interconnected unavoidably breaks the chain of production and, consequently, the chain of commercialization. When, moreover, the destruction takes place during a war in which those same installations are under constant threat of attack by enemy forces, their repair requires particularly arduous efforts.
24. The second condition concerns the notion of freedom of commerce. In order for such a freedom to be prejudiced, it is not necessary for the actual or immediate conduct of the commercial activity, in the present case the protected oil production activity, to be brought to a halt. It is no defence to argue that two of the oil complexes were temporarily out of commission as a result of the Iraqi attacks, since repair work was in progress. Even in a country like Iran, which possesses abundant oil resources and numerous production centres, the disabling of even one part of the machinery of production prejudices freedom of commerce, that is to say, the ability to choose from production sites for purposes of commercialization.
I cannot in particular subscribe to the following statement by the Court in paragraph 92 of the Judgment: "Injury to potential for future commerce is however, in the Court's view, not necessarily to be identified with injury to freedom of commerce, within the meeting of Article X, paragraph 1, of the 1955 Treaty."
Freedom of commerce implies not only freedom for Iran to choose where it will produce and sell its petroleum wealth, but also includes control over the future development of that commerce.
25. The third and last question concerns the spatial or relational element of freedom of commerce: that freedom is protected in so far as it is exercised between the territories of the two High Contracting Parties. Having been built on the Iranian continental shelf, the oil platforms are part of Iranian territory. The same is true of Lavan Island, to which oil from the Salman complex is transported, and of Sirri Island, through which oil from the Nasr complex passes. But was there infringement of freedom of commerce between this territory and the territory of the United States? The response to this question is bound up with that just given to the preceding question. Throughout the war between Iran and Iraq, Iran never stopped supplying oil to the United States. The temporary disabling of the facilities of the three oil complexes prejudiced Iran's freedom of commerce because it was restricted in its freedom to choose the centres of production from which oil was to be exported to the United States.
(ii) The effect on freedom of commerce of Executive Order 12613 of 29 October 1987
26. In its Rejoinder of 23 March 2001 (Nos. 3.55 to 3.59) the United
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States puts forward two arguments in justification, one erroneous and the other audacious. The first has already been refuted: the fact that production at some installations had to be halted as a result of the Iraqi attacks is irrelevant because the subsequent destruction of those installations by United States forces destroyed the repair work being completed and delayed the resumption of operations. The justification which must be adjudged audacious seeks to found itself on the United States President's Executive Order of 29 October 1987, as a result of which all Iranian oil imports by the United States purportedly ceased. The Court is wrong in accepting this ground for holding Article X, paragraph 1, inapplicable (see paras. 93 and 94 of the Judgment). In so doing, it upholds the right of a State party to a bilateral treaty to exonerate itself by a unilateral administrative act from responsibility engaged by an earlier act committed in violation of that treaty. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court found that the unilateral decision to impose an embargo on ships registered in Nicaragua constituted per se a violation of the Treaty of Friendship between the United States and Nicaragua (/. C.J. Reports 1986, p. 140, para. 279). Whether viewed as cumulative to the use of force, as in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), or as potentially exonerating the State from responsibility incurred as a result of the use of force, as is claimed in the present case, a unilateral administrative measure adopted by a State party to a treaty has to be assessed in the light of the treaty obligations of both parties; it cannot have the effect of discharging one of the States from any of those obligations.
According ito ithe Judgment:
"The Iranian contention rests on the hypothesis that the embargo was a breach of the 1955 Treaty, and not justified under Article XX, paragraph 1 (d), thereof; but these are questions which Iran has chosen not to put formally in issue, and on which the Court has thus not heard full argument." (Para. 94.)
This is to misrepresent the "Iranian contention". It is not a question of determining whether the embargo "was a breach of the 1955 Treaty" but, which is something altogether different, whether the embargo could be invoked in order to escape the consequences of a prior illegal act, the destruction of the Iranian oil platforms.
(iii) The existence and relevance of "indirect" commerce between the territories of the two High Contracting Parties
27. Both in their oral statements and in their written pleadings, the two Parties referred to the report drawn up by Mr. Peter Odell at Iran's request, which explained that the embargo did not prevent continued Iranian oil exports to the United States, but that this was done indirectly,
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Iranian crude oil being exported to Western Europe and then re-exported to the United States after refining. The report by Mr. Odell, a British expert, confirms the statement by Mr. Seyed-Hossein Hosseini, NIOC Director of International Affairs. The statement and report appear, together with their annexes, in Volume III of Iran's Reply of 10 March 1999. This commerce, characterized as "indirect", raises two questions concerning the interpretation of Article X, paragraph 1 : if a product originating in Iran transits through a third country before arriving in the United States, does it fall within the scope of freedom of commerce "[bjetween the territories of the two High Contracting Parties"? Did the refining process carried out in the third country result in changing the nature of the oil to the point of breaking the flow of commerce between the two States?
28. The beginnings of a response, if not the response itself, to these two questions can be found in the Judgment delivered on 12 December 1996 by the Court on the Preliminary Objection of the United States. The extremely broad conception of the notion of commerce which emerges from the long discussion devoted by the Judgment to this point (I.C.J. Reports J 996 (II), pp. 817-820, paras. 42-52) enables it to encompass the multiple, diversified operations characterizing contemporary international commerce and the myriad participants therein. Paragraph 42 of the 1996 Judgment is particularly significant in this respect, notably when it refers to "the entire range of activities dealt with in the Treaty" ("toute la gamme d'activités auxquelles le traité s'étend"). Today, a product typically passes through several countries before reaching its final destination and undergoes successive transformations adapting it for the use to which it is to be put by the end-user. The transformation of crude oil into a refined product does not result in a product of a nature different from that which it had at the outset. Oil production comprises successive phases leading to the final product and it would be artificial to draw lines between them. To decide otherwise would be to introduce a metaphysical distinction in objects of international commerce between substance and treatment, the successive stages in the processing of the initial "crude" product resulting in the identification of different "substances" depending on the form of the final product.
29. The reasoning in the Judgment focuses not so much on the "successive technical processes that [the oil] underwent" as on the "nature of the successive commercial transactions relating to the oil". The Judgment continues:
"What Iran regards as 'indirect' commerce in oil between itself and the United States involved a series of commercial transactions: a sale by Iran of crude oil to a customer in Western Europe, or some third country other than the United States; possibly a series of intermediate transactions; and ultimately the sale of petroleum products to a customer in the United States. This is not 'commerce' between Iran and the United States, but commerce between Iran and an
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intermediate purchaser; and 'commerce' between an intermediate seller and the United States." (Para. 97.)
This is a plausible scenario, but the Court presents it as if it had been verified in practice. However, there is nothing either in the Parties' written pleadings or in their oral statements which lends any support for what can only be regarded as pure speculation, to which the Judgment appears to accord a substance which it does not merit.
It could equally well be assumed that "indirect" commerce took the form of the sale of crude oil to an American customer, with the contract providing for refining to take place in a third State. Such a hypothesis is indeed more plausible than that assumed by the Court in its reasoning, since it relieves the "intermediary" of the risk of purchasing crude oil without any assurance of finding a market for the finished product.
"Direct" commerce of this kind is all the more credible in that Section 2 (b) of Executive Order 12613 contained an exception whereby the embargo was not to apply to "petroleum products refined from Iranian crude oil in a third country" (para. 96 of the Judgment). The consequence of this exception is twofold. First, it means that, in its absence, such an operation would have been caught by Section 1 and accordingly been prohibited. Secondly, it implies that the Iranian origin of a product refined in a third State could have been detected, making the exception necessary so as to forestall a consequence which the President of the United States wished to avoid in light of his country's energy needs.
(c) Is There Not a Contradiction between the Reasons for the Dismissed of the Original Claim and the Terms of the Operative Paragraph ?
30. In paragraph 42 of the Judgment the Court declares itself competent to rule on the compatibility of the American military actions against the oil platforms with international law regarding the use of force. After examining the factual and legal issues enabling it to reach its decision (paras. 43-77 of the Judgment), the Court concludes in paragraph 78 that those actions
"cannot be justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defence, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the Treaty".
This purely negative conclusion is reproduced in the first part of point 1 of the Judgment's operative paragraph. In paragraphs 96 to 98, the Court absolves from all responsibility a State which it has found guilty of violation of a principle of international law as fundamental as
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the prohibition on the use of force in relations between States. Even if one were to accept — contrary to what has been demonstrated above — that the destruction of the Iranian oil platforms did not violate freedom of commerce between the two High Contracting Parties, it would still be illogical to find that the destruction of those platforms was carried out by an unlawful use of armed force and yet did not entitle the State victim of that wrongful act to reparation. Already in paragraph 41 of the Judgment, the Court states:
"The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty."
Having, in execution of that task, found that there has been a breach of the prohibition on the use of force in connection with Iran's claim based on Article X, paragraph 1, of the Treaty, the Court has failed to complete its mission in leaving that breach uncompensated.
IV. THE PROHIBITION OF THE USE OF FORCE IS A FUNDAMENTAL PRINCIPLE OF INTERNATIONAL LAW
31. If, notwithstanding my reservations as set out above, I voted in favour of the first point in the operative paragraph, it was because, not being offered the possibility of choosing between the Court's conclusion on the use of force and its refusal to uphold Iran's legitimate claim, I con-sidered that I must in all conscience give preference to the first of these two limbs of point 1 of the operative paragraph.
In recent decades, some distinguished American jurists have deplored the retreat from support for the principle on the prohibition on the use of force. Among many others, I would cite: Thomas M. Franck, "Who Killed Article 2, Paragraph 4? Or: Changing Norms Governing the Use of Force by States", 64 American Journal of International Law (1970), pp. 809-837; Oscar Schachter, "In Defence of International Rules on the Use of Force", 53 University of Chicago Law Review (1986), pp. 113-146; Oscar Schachter, "The Role of Power in International Law", Proceedings of the 93rd Annual Meeting of the American Society of International Law (1999), pp. 200-205. These two eminent jurists have stressed in particular the perverse effect of a justification founded on a misconception of the "inherent right of self-defence". It cannot, however, be said that everyone subscribes today to the view that Article 2, paragraph 4, of the Charter still remains in force. Thus we find published works which categorically deny this. See, for example, the recent article by John. R. Bolton, "Is There Really 'Law' in International Affairs?", 10 Transnational Law and Contemporary Problems (2000), pp. 1-48.
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Such a position carries a certain weight, for its author was for five years (1989-1993) Assistant Secretary of State for International Organization Affairs. The article begins with a theoretical discussion of the legal status of international law: "Is it Law or isn't it?" This is a piece of out-dated dogma, for it is based on a restrictive definition of the notion of "law" or legal order. The author then proceeds to base his argument on the United States Supreme Court's application of the "last-in-time rule", under which courts must apply a domestic statute in preference to a prior treaty, from which the legislator is deemed to have derogated. This constitutional doctrine is presented in far too summary a manner, failing to mention the efforts of jurisprudence to reconcile two contradictory sources of law. One means employed to this end is the principle that courts should seek to interpret a statute conflicting with a directly applicable provision of an international treaty in a manner rendering it compatible with the treaty21. Moreover, the status of international law within a State's domestic order tells us nothing about the nature of the legal order governing inter-State relations. Finally, the dismissal of international law as not being "law", which is based inter alia on the proposition that no court exists capable of settling inter-State disputes, is contradicted by the circumstances of the present case: there is an international court, and it has clearly ruled on the respect owed to the prohibition of the use of force.
32. In reality, this "doctrine" defended by Mr. Bolton is a grievously outdated one. It seeks, without daring to say so, to restore to the agenda the teachings of Hobbes and Spinoza.
The two leading works of Thomas Hobbes (1588-1679) are: De Cive (1642) and Leviathan, seu de civitate ecclesiastica et civili (1651). The author has a conception of natural law diametrically opposed to that offered by scholastic tradition. The state of nature (status naturae) is the site of an unending struggle, bellum omnium in omnes (De Cive, I, XII), which the establishment of civil society has failed to bring to an end. The modern State has succeeded in imposing peace thanks to the power exercised by its rulers, the citizens having agreed to give up their natural freedom in return for peace. States as between themselves remain in this state of nature. The strongest dominates by conquest, subjecting other peoples to its rule.
"To this war of every man, against every man, this also is consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force, and fraud, are in war the two cardinal virtues. Justice, and injustice are none of the faculties neither of the body, nor mind. If they were, they might be in a man that were alone in the world, as well as his senses, and
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passions. They are qualities, that relate to men in society, not in solitude. It is consequent also to the same condition, that there be no propriety no dominion, no mine and thine distinct; but only that to be every man's, that he can get: and for so long, as he can keep it. And thus much for the ill condition, which man by mere nature is actually placed in; though with a possibility to come out of it, consisting partly in the passions, partly in his reason." (Leviathan, Chap. XIII.)
"The liberty, whereof there is so frequent and honourable mention, in the histories, and philosophy of the ancient Greeks, and Romans, and in the writings, and discourse of those that from them have received all their learning in the politics, is not the liberty of particular men; but the liberty of the commonwealth: which is the same with that which every man then should have, if there were no civil laws, nor commonwealth at all. And the effects of it also be the same. For as amongst masterless men, there is perpetual war, of every man against his neighbour; no inheritance, to transmit to the son, nor to expect from the father; no propriety of goods, or lands; no security; but a full and absolute liberty in every particular man: so in states, and commonwealths not dependent on one another, every commonwealth, not every man, has an absolute liberty, to do what it shall judge, that is to say, what that man, or assembly that represen-teth it, shall judge most conducing to their benefit. But withal, they live in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and cannons planted against their neighbours round about." (Leviathan, Chap. XXI.)22
Since the community of States lacks any superior power, any governing authority, the notions of justice and injustice can have no currency there, being the product of a duly constituted society. Hobbes's view of international law was a voluntarist one: jus gentium is totally distinct from natural law, the law of nature (rather than natural law) being that of the triumph of force, of the domination of the weak by the strong.
We find an echo of certain of Hobbes's ideas in Spinoza (1632-1677). According to the Tractatus politicus and the Tractatus theologico-politi-cus, published posthumously in 1677, the irresistible power of the supreme authority (summa potestas) within the State is reflected in the State's external sovereignty.
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Hence, if a nation wishes to make war on another nation and is prepared to have recourse to any appropriate means in order to force that nation into dependency, it is perfectly entitled to attack it. For all it requires, in order to find itself in a state of war, is to have the will to do so (Traetatus politicus, Chap. Ill, para. 13).
33. The legal regime to which the United Nations Charter has subjected the use of force between States must be regarded as the "fundamental norm" (Grundnorm) of international law in Kelsen's sense of the term. The principal judicial organ of the United Nations should have taken the opportunity offered it by the present case to recall that Article 2, paragraph 4, of the Charter is a provision possessing binding force. The Court had jurisdiction to do so, for the two actions of which it was seised both had as their subject-matter a claim based on a use of force alleged to have been unlawful, the focus of the dispute being the nature and extent of the right of self-defence.
(Signed) Francois RIGAUX.
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