|
[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.
***
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).
*
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.
*
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.
*
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.
**
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.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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".
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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".
---------------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------
"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.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
� 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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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).
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
"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.
------------------------------------------------------------------------------------------------------------
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.
183
341
OIL PLATFORMS (SEP. OP. SIMMA)
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
342
OIL PLATFORMS (SEP. OP. SIMMA)
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
343
OIL PLATFORMS (SEP. OP. SIMMA)
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
344
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
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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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OIL PLATFORMS (SEP. OP. SIMMA)
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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OIL PLATFORMS (SEP. OP. SIMMA)
"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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362
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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363
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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364
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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OIL PLATFORMS (SEP. OP. RIGAUX)
365
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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OIL PLATFORMS (SEP. OP. RIGAUX)
366
"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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OIL PLATFORMS (SEP. OP. RIGAUX)
367
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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OIL PLATFORMS (SEP. OP. RIGAUX)
368
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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OIL PLATFORMS (SEP. OP. RIGAUX)
369
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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OIL PLATFORMS (SEP. OP. RIGAUX)
370
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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371
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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372
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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373
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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380
"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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382
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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