Audience publique tenue le mercredi 26 février 2003, à 15 heures, au Palais de la Paix, sous la présidence de M. Shi, président

CR 2003/13
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2003
Public sitting
held on Wednesday 26 February 2003, at 3 p.m., at the Peace Palace,
President Shi presiding,
in the case concerning Oil Platforms
(Islamic Republic of Iran v. United States of America)
____________________
VERBATIM RECORD
____________________
ANNÉE 2003
Audience publique
tenue le mercredi 26 février 2003, à 15 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire des Plates-formes pétrolières
(République islamique d’Iran c. Etats-Unis d’Amérique)
________________
COMPTE RENDU
________________
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Present: President Shi
Vice-President Ranjeva
Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Judge ad hoc Rigaux
Registrar Couvreur
¾¾¾¾¾¾
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Présents : M. Shi, président
M. Ranjeva, vice-président
MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka, juges
M. Rigaux, juge ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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The Government of the Islamic Republic of Iran is represented by:
Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-US Claims Tribunal,
Deputy Director for Legal Affairs, Bureau of International Legal Services of the Islamic
Republic of Iran, The Hague,
as Agent;
Mr. D. Momtaz, Professor of International Law, Tehran University, member of the International
Law Commission, Associate, Institute of International Law,
Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company,
Mr. Michael Bothe, Professor of Public Law, Johann Wolfgang Goethe University of
Frankfurt-am-Main, Head of Research Unit, Peace Research Institute, Frankfurt,
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the English and Australian Bars, member of the Institute of International
Law,
Mr. Alain Pellet, Professor at the University of Parix X-Nanterre, member and former Chairman of
the International Law Commission,
Mr. Rodman R. Bundy, avocat à la cour d’appel de Paris, member of the New York Bar, Frere
Cholmeley/Eversheds, Paris,
Mr. David S. Sellers, avocat à la cour d'appel de Paris, Solicitor of the Supreme Court of England
and Wales, Frere Cholmeley/Eversheds, Paris,
as Counsel and Advocates;
Mr. M. Mashkour, Deputy Director for Legal Affairs, Bureau of International Legal Services of the
Islamic Republic of Iran,
Mr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company,
Mr. R. Badri Ahari, Legal Adviser, Bureau of International Legal Services of the Islamic Republic
of Iran, Tehran,
Mr. A. Beizaei, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of
Iran, Paris,
Ms Nanette Pilkington, avocat à la cour d’appel de Paris, Frere Cholmeley/Eversheds, Paris,
Mr. William Thomas, Solicitor of the Supreme Court of England and Wales, Frere
Cholmeley/Eversheds, Paris,
Mr. Leopold von Carlowitz, Research Fellow, Peace Research Institute, Frankfurt,
Mr. Mathias Forteau, docteur en droit, Researcher at the Centre de droit international de Nanterre
(CEDIN), University of Paris X-Nanterre,
as Counsel;
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Le Gouvernement de la République islamique d’Iran est représenté par :
M. M. H. Zahedin-Labbaf, agent de la République islamique d’Iran auprès du Tribunal des
réclamations Etats-Unis/Iran, directeur adjoint des affaires juridiques au bureau des services
juridiques internationaux de la République islamique d’Iran à La Haye,
comme agent;
M. D. Momtaz, professeur de droit international à l’Université de Téhéran, membre de la
Commission du droit international, associé à l’Institut de droit international,
M. S. M. Zeinoddin, chef du service juridique de la National Iranian Oil Company,
M. Michael Bothe, professeur de droit public à l’Université Johann Wolfgang Goethe de
Francfort-sur-le-Main, directeur de la recherche à l’Institut de recherche pour la paix à
Francfort,
M. James R. Crawford, S.C., F.B.A., professeur de droit international, titulaire de la chaire
Whewell à l’Université de Cambridge, membre des barreaux d’Angleterre et d’Australie,
membre de l’Institut de droit international,
M. Alain Pellet, professeur à l’Université de Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Frere Cholmeley/Eversheds, Paris,
M. David S. Sellers, avocat à la cour d’appel de Paris, Solicitor auprès de la Cour suprême
d’Angleterre et du Pays de Galles, cabinet Frere Cholmeley/Eversheds, Paris,
comme conseils et avocats;
M. M. Mashkour, directeur adjoint des affaires juridiques au bureau des services juridiques
internationaux de la République islamique d’Iran,
M. M. A. Movahed, conseiller juridique principal à la National Iranian Oil Company,
M. R. Badri Ahari, conseiller juridique au bureau des services juridiques internationaux de la
République islamique d’Iran, Téhéran,
M. A. Beizaei, conseiller juridique au bureau des services juridiques internationaux de la
République islamique d’Iran, Paris,
Mme Nanette Pilkington, avocat à la cour d’appel de Paris, cabinet Frere Cholmeley/Eversheds,
Paris,
M. William Thomas, Solicitor auprès de la Cour suprême d’Angleterre et du Pays de Galles,
cabinet Frere Cholmeley/Eversheds, Paris,
M. Leopold von Carlowitz, chargé de recherche à l’Institut de recherche pour la paix à Francfort,
M. Mathias Forteau, docteur en droit, chercheur au Centre de droit international de Nanterre
(CEDIN) de l’Université de Paris X-Nanterre,
comme conseils;
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Mr. Robert C. Rizzutti, Vice-President, Cartographic Operations, International Mapping
Associates,
as Technical Adviser.
The Government of the United States of America is represented by:
Mr. William H. Taft, IV, Legal Adviser, United States Department of State,
as Agent;
Mr. Ronald J. Bettauer, Deputy Legal Adviser, United States Department of State,
as Co-Agent;
Mr. Michael J. Matheson, Professor, George Washington University School of Law,
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States
Department of State,
Mr. Michael J. Mattler, Attorney-Adviser, United States Department of State,
Mr. Sean Murphy, Professor, George Washington University School of Law,
Mr. Ronald D. Neubauer, Associate Deputy General Counsel, United States Department of
Defence,
Mr. Prosper Weil, Professor Emeritus, University of Paris II, member of the Institut de droit
international, member of the Académie des sciences morales et politiques (Institut de France),
as Counsel and Advocates;
Mr. Paul Beaver, Defence & Maritime Affairs Consultant, Ashbourne Beaver Associates, Ltd.,
London,
Mr. John Moore, Senior Associate, C & O Resources, Washington, D.C.,
as Advocates;
Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague,
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague,
Ms Kathleen Milton, Attorney-Adviser, United States Department of State,
as Counsel;
Ms Marianne Hata, United States Department of State,
Ms Cécile Jouglet, United States Embassy, Paris,
Ms Joanne Nelligan, United States Department of State,
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M. Robert C. Rizzutti, vice-président des opérations cartographiques, International Mapping
Associates,
comme conseiller technique.
Le Gouvernement des Etats-Unis d’Amérique est représenté par :
M. William H. Taft, IV, conseiller juridique du département d’Etat des Etats-Unis,
comme agent;
M. Ronald J. Bettauer, conseiller juridique adjoint du département d’Etat des Etats-Unis,
comme coagent;
M. Michael J. Matheson, professeur à la faculté de droit de l’Université George Washington,
M. D. Stephen Mathias, directeur chargé des questions concernant les Nations Unies auprès du
conseiller juridique du département d’Etat des Etats-Unis,
M. Michael J. Mattler, avocat-conseiller au département d’Etat des Etats-Unis,
M. Sean Murphy, professeur à la faculté de droit de l’Université George Washington,
M. Ronald D. Neubauer, assistant au bureau du conseiller juridique adjoint du département de la
défense des Etats-Unis,
M. Prosper Weil, professeur émérite à l’Université de Paris II, membre de l’Institut de droit
international, membre de l’Académie des sciences morales et politiques (Institut de France),
comme conseils et avocats;
M. Paul Beaver, expert consultant en questions de défense et affaires maritimes, Ashbourne Beaver
Associates, Ltd., Londres,
M. John Moore, associé principal, C & O Resources, Washington D. C.,
comme avocats;
M. Clifton M. Johnson, conseiller juridique à l’ambassade des Etats-Unis à La Haye,
M. David A. Kaye, conseiller juridique adjoint à l’ambassade des Etats-Unis à La Haye,
Mme Kathleen Milton, avocat-conseiller au département d’Etat des Etats-Unis,
comme conseils;
Mme Marianna Hata, département d’Etat des Etats-Unis,
Mme Cécile Jouglet, ambassade des Etats-Unis à Paris,
Mme Joanne Nelligan, département d’Etat des Etats-Unis,
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Ms Aileen Robinson, United States Department of State,
Ms Laura Romains, United States Embassy, The Hague,
as Administrative Staff.
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Mme Aileen Robinson, département d’Etat des Etats-Unis,
Mme Laura Romains, ambassade des Etats-Unis à La Haye,
comme personnel administratif.
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The PRESIDENT: Please be seated. I now give the floor to Professor Murphy.
Mr. MURPHY:
19. JURISDICTION AND ADMISSIBILITY OF THE
UNITED STATES COUNTER-CLAIM
Thank you, Mr. President. May it please the Court.
19.1. On 23 June 1997, the United States filed a counter-claim in this case, asserting that
Iran’s systematic attacks against maritime shipping in the Gulf during the 1980s impeded
commerce and navigation between Iran and the United States, and thus constituted a violation of
Article X of the 1955 Treaty. Consequently, in our submissions, we asked the Court not only to
reject Iran’s wholly unsubstantiated claim, but that the Court uphold the rule of international law
under the 1955 Treaty by holding Iran accountable for its egregious and inexcusable conduct.
19.2. In the Court’s Order of 10 March 1998, the Court found that the United States
counter-claim “is admissible as such and forms part of the current proceedings”. Thereafter, Iran
responded to the counter-claim in pleadings filed in March 1999 and September 2001, while the
United States supplemented its counter-claim in a pleading filed in March 2001.
19.3. Mr. President, the factual and legal issues relating to the counter-claim are fully
addressed in the written pleadings. The United States task now is to state succinctly for the Court
the key elements of the United States counter-claim, to respond to issues raised by the Government
of Iran, and to highlight certain deficiencies in Iran’s final pleading on the counter-claim, including
the rather stark contradictions in standards that Iran applies in advancing its own claim as
compared with its defence on the counter-claim. Our purpose is to assist the Court in reaching a
consistent and careful interpretation of the meaning of Article X, the language of which is the same
in numerous treaties of friendship, commerce and navigation.
19.4. The United States presentation on the counter-claim will proceed in three parts. First, I
will address Iran’s assertions regarding jurisdiction and admissibility as they relate to the
counter-claim. Second, Mr. Mattler will briefly set forth the basic facts in support of the United
States counter-claim, drawing largely on the information and evidence already presented to the
Court in the context of defending against Iran’s claim. And third, with your permission,
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Mr. President, I will return to the podium to relate those facts to the legal interpretation of Article X
of the 1955 Treaty, showing that Iran’s actions constituted a violation of that Article.
19.5. Mr. President, in Iran’s lengthy final pleading on the counter-claim, Iran devoted
considerable attention to issues concerning jurisdiction and admissibility of the counter-claim. The
United States will not respond in kind since this Court, in its 1998 Order, has largely resolved these
issues. However, the United States is obliged to address what the Court said in its 1998 Order
about jurisdiction and admissibility, and to address three points raised by Iran.
A. The 1998 Order addressed issues of jurisdiction and admissibility
19.6. Let me begin by briefly recounting the context in which the Court’s 1998 Order was
issued.
19.7. In 1996, the Court decided it had jurisdiction over Iran’s claim against the United
States based on Article X, paragraph 1, and decided that Iran’s claim was admissible (Oil Platforms
(Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, (I.C.J.
Reports, 1996 (II), p. 803). In 1997, the United States filed the counter-claim, which Iran then
challenged on grounds of jurisdiction and admissibility. Since the case was now proceeding to a
decision on the merits, it made some sense for the Court to decide the issues of jurisdiction and
admissibility of the counter-claim. And consequently, both Parties made detailed written
arguments to the Court at that time on those issues.
19.8. The United States argued that, pursuant to Article 80 of the Rules of Court as adopted
in 1978, the counter-claim was directly connected to Iran’s claim, was within the jurisdiction of the
Court, and was admissible (Counter-Memorial and Counter-Claim of the United States,
paras. 6.10-6.12). In response, Iran argued extensively that the United States counter-claim was
not directly connected to Iran’s claim, was not within the jurisdiction of the Court, and was not
admissible, noting, among other things, the correspondence between the two governments
concerning negotiations for settlement of the matter (Iran letter of 2 October 1997; Iran letter of
27 October 1997; Iran request for a hearing of 18 November 1997).
19.9. After fully considering the arguments of both sides, this Court found that the “attacks
on shipping, the laying of mines, and other military actions” alleged by the United States “are
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capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty as interpreted by
the Court”. The Court also stated that it “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” (Oil Platforms (Islamic Republic of Iran v. United States of America),
Counter-Claim, Order of 10 March 1998, (I.C.J. Reports 1998, p. 204, para. 36) (emphasis added).
The Court further found that the counter-claim was directly connected to Iran’s claim (ibid., p. 205,
para. 39). And, since those conditions were met, 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). The Court further noted that doing so “in no way prejudges
any question which the Court will be called upon to hear during the remainder of the proceedings”
(ibid., p. 205, para. 41).
19.10. The Court, therefore, determined that it had jurisdiction over the counter-claim and
that the counter-claim was admissible in these proceedings, although the Court left open, of course,
whether, on the merits, Iran had in fact violated Article X.
19.11. Nevertheless, in subsequent pleadings on the counter-claim, Iran essentially asks this
Court to revisit the prior decision on jurisdiction and admissibility, and in that regard Iran has
raised three points. Let me address each in turn.
B. The Court’s jurisdiction encompasses both the freedom of commerce and the freedom of
navigation
19.12. First, Iran says that the Court has jurisdiction over the counter-claim only to the extent
that the counter-claim alleges a violation of the freedom of commerce, and not to the extent that it
alleges a violation of the freedom of navigation (Further Response of Iran to the United States
Counter-Claim, para. 5.10).
19.13. With all due respect, the Court’s Order of March 1998 could not have been clearer in
rejecting that position. The Court said that it “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” (p. 204, para. 36). The freedoms, Mr. President, I emphasize the plurality
of that word. There are two freedoms captured in Article 10, paragraph 1: the freedom of
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commerce and the freedom of navigation. When the Court said that it had jurisdiction over the
alleged acts prejudicing these “freedoms”, it was referring to both freedoms.
19.14. Iran’s tries to construct a reading of the Court’s Order built upon the idea that the
United States counter-claim was never concerned with the freedom of navigation. Yet the United
States first pleading on the counter-claim is replete with references that encompass both freedoms.
To give just one example, the United States said, in its pleadings: “it is difficult to imagine a more
direct form of interference with freedom of navigation and commerce than a series of armed attacks
against commercial vessels of another party and the military vessels escorting them” (see
Counter-Memorial and Counter-Claim of the United States, para. 6.16 (emphasis added); see also
ibid., paras. 6.01, 6.05, 6.06, 6.09). Our counter-claim was clearly predicated on both freedoms
and the Court in its 1998 Order recognized it as such.
C. There is no issue of jurisdiction over Liberian claims
19.15. Second, Iran seeks to argue that the United States is advancing claims on behalf of
Liberia (Further Response to the United States’ Counter-Claim of Iran, para. 5.21). The United
States, of course, is doing nothing of the sort. The United States is not seeking any damages owed
to third States as a result of Iran’s unlawful attacks and mining. Rather, we are seeking a decision
by this Court that Iran violated the obligations owed to the United States under Article X which
caused damage to the United States and its nationals. Any damages that might be owed to third
States are not before this Court. The statement by Liberia referred to by Iran was simply an
indication that Liberia has no objection to the United States advancing a claim that involves, among
other things, Liberian flagged vessels. Liberia’s assertion that it wished to receive any
compensation owed to Liberia obviously reflected some misunderstanding on the part of the
Liberian Government as to the nature of this proceeding.
D. The counter-claim remains admissible
19.16. Third, Iran advances certain arguments in an effort to show that the counter-claim is
not admissible, notwithstanding the Court’s Order that the counter-claim “is admissible as such and
forms a part of the current proceedings”. None of these arguments has any merit.
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19.17. So, the United States has not introduced, for instance, “new claims” in the
counter-claim (see Further Response to the United States Counter-Claim of Iran, paras. 5.26-5.29).
There is just one claim at issue in the counter-claim: that Iran violated Article X by attacking
vessels in the Gulf and otherwise engaging in military actions that impeded commerce and
navigation. This is the claim advanced in the United States written pleadings and it remains the
claim of the United States advanced before this Court today. The claim is supported by evidence of
specific Iranian military actions against neutral shipping representing United States interests.
There is nothing “inadmissible” about the United States providing to the Court, in its March 2001
pleading, additional information regarding Iran’s unlawful acts, nor in providing additional
information if and when the counter-claim is considered at the damages phase.
19.18. In support of the argument that the United States is introducing “new claims”, Iran
points to the Court’s 1992 Judgment in the Certain Phosphate Lands in Nauru case. In that case,
Nauru filed an Application relating to an alleged failure of Australia to observe the Trusteeship
Agreement approved by the General Assembly in 1947. When it came time to file its Memorial,
Nauru included a further claim concerning the overseas assets of British Phosphate Commissioners.
The Court found that this new claim was inadmissible. In doing so, the Court noted that there was
no reference in the Application to the disposal of such overseas assets “either as an independent
claim or in relation to the claim for reparation submitted . . .” (Certain Phosphate Lands in Nauru
(Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 64).
Further, the Court noted that there was no reference in the Application to the 1987 trilateral
agreement under which those assets were marshalled and disposed. And finally, the Court noted
that the new claim resulted in a supplemental final submission in the Memorial. And so, in
conclusion, the Court said that this further claim “is inadmissible inasmuch as it constitutes, both in
form and in substance, a new claim, and the subject of the dispute originally submitted to the Court
would be transformed if it entertained that claim” (ibid., p. 267, para. 70).
19.19. Thus, the Nauru case suggests the exact opposite of Iran’s contention regarding the
counter-claim in this case. The additional information provided to the Court in March 2001 in the
present case regarding damage to vessels is completely within the scope of the 1997 counter-claim
and the reparations sought thereunder. The additional information relates to the same provision of
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the same agreement as was raised in the 1997 counter-claim. The new information falls squarely
within the original submission by the United States. So, in short, there are no new claims and no
transformation of the dispute presently before the Court.
19.20. Similarly, the United States is not expanding the relevant time frame of the
counter-claim (see Further Response to the United States’ Counter-Claim of Iran, paras. 5.30-5.33).
The counter-claim stated that it was based on actions in the Gulf during the Iraq-Iran war. The
Court’s 1998 Order found that the counter-claim was directly connected to Iran’s claim in part
because the relevant facts “are alleged to have occurred in the Gulf during the same period” (I.C.J.
Reports 1998, p. 205, para. 38). If the Court proceeds to a damages phase, it will be perfectly
equipped to determine which types of damages in what time-frame are justified as a matter of law.
19.21. Finally, Iran argues that the counter-claim is inadmissible because of Article XXI of
the 1955 Treaty, which provides that either party may submit to the Court a dispute as to the
interpretation or application of a treaty that has not been “satisfactorily adjusted by diplomacy” (see
Reply and Defence to Counter-Claim of Iran, paras. 9.18-9.21; Further Response to the United
States’ Counter-Claim of Iran, para. 5.73). According to Iran, there is still some chance that the
United States counter-claim could be resolved by diplomacy, and therefore the counter-claim is not
admissible.
19.22. Yet Iran argued this very point to the Court prior to the Court’s March 1998 Order
and the Court rejected it. In its letter of 2 October 1997, Iran submitted to the Court the
communications between the two governments regarding negotiation of the United States claim for
damages. In its letter of 18 November 1997 to the Court, Iran argued that the counter-claim was
inadmissible in part because “the United States has effectively refused to . . . resolve [the
counter-claim] . . . by diplomatic negotiations, despite Iran’s agreement to such negotiations”. The
Court, in its March 1998 Order, noted this argument (I.C.J. Reports 1998, p. 194, para. 6; p. 196,
para. 12), but nevertheless found that “the Court has jurisdiction to entertain the United States
counter-claim” and, in that context, found it to be admissible.
19.23. It comes as no surprise that the Court rejected Iran’s interpretation of Article XXI.
When faced with this issue in the Nicaragua v. United States case, the Court had no trouble finding
that the dispute was not “satisfactorily adjusted by diplomacy” even though, in that case, there had
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been no reference whatsoever in any diplomatic communications between the United States and
Nicaragua to the alleged violation of the 1956 Treaty at issue in that case. The standard applied by
the Court was not whether there remained some possibility that the two governments might resolve
the matter diplomatically. Rather, the standard applied by the Court was simply that the “United
States was well aware that Nicaragua alleged that its conduct was a breach of international
obligations before the present case was instituted; and it is now aware that specific articles of the
1956 Treaty are alleged to have been violated” (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1984, p. 428, para. 83; see also ibid., separate opinion of Judge Jennings, at
Section IV, p. 556 (“It seems indeed to be cogently arguable that all that is required is, as the clause
precisely states, that the claims have not in fact already been ‘adjusted’ by diplomacy.”)).
19.24. The same standard was applied by the Court in this very case with respect to Iran’s
claim against the United States. In its December 1996 Judgment, the Court simply found that “a
dispute has arisen between Iran and the United States; it has not been possible to adjust that
dispute by diplomacy and the two States have not agreed ‘to settlement by some other pacific
means’ . . .” (I.C.J. Reports 1996 (II), pp. 809-810, para. 16). Applying that same standard here,
Iran was well aware that the United States alleged that its conduct was a breach of international
obligations before the counter-claim was instituted; and it is now aware of the specific treaty
provision at issue. As we stand before you today, the dispute underlying the counter-claim has not
been satisfactorily adjusted by diplomacy. That is enough to satisfy Article XXI of the
1955 Treaty.
19.25. I should also note that the Agent for Iran in his opening remarks took up the issue of
the counter-claim. He stated that the counter-claim was “artificial” in part because the United
States did not bring the claim to the Court until 1996, and in part because “no other nation has seen
fit to claim compensation from Iran for such damage” (CR 2003/5, p. 27). As the Court well
knows, there is nothing artificial about evidence of secretly-laid mines that spill oil in the Gulf, or
about powerful missiles that blind and maim sailors, or about gunboats aiming their weapons at the
undefended quarters of innocent sailors. Moreover, if the timing of filing a claim before this Court
is of relevance to the merits, we can only note that Iran waited more than five years from the date
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of the first United States action against the platforms before bringing its case to the Court. And if
the absence of claims for compensation from other States is of relevance to the merits of a claim,
then Iran must think that the Court decided the Nicaragua case wrongly, since in that case the
Court recognized that it had before it in that case no other diplomatic protests against the United
States mining. (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1986, p. 47, para. 79) In short, there is nothing artificial
about the counter-claim.
Conclusion
19.26. Mr. President, Members of the Court, in conclusion let me state that the Court has
already addressed the issues of jurisdiction and admissibility with respect to the counter-claim. To
the extent that Iran has raised additional points on the matter, we believe that those points cannot be
sustained.
19.27. That concludes my presentation on jurisdiction and admissibility. I ask you,
Mr. President, to now call upon Mr. Mattler to continue the United States presentation.
The PRESIDENT: Thank you, Professor Murphy. I now give the floor to Mr. Mattler.
Mr. MATTLER: Thank you, Mr. President.
20. THE FACTS OF THE UNITED STATES COUNTER-CLAIM
20.1. Having just heard from Professor Murphy that the counter-claim is properly before this
Court as a matter of jurisdiction and admissibility, it is now my task to recount the essential facts
upon which the counter-claim is based. While these facts are extensive, my presentation will be
relatively brief since many of these facts have already been raised in the course of the United States
response to Iran’s claim.
The evidence before the Court
20.2. The United States has provided the Court with ample evidence of Iran’s attacks on
United States and other neutral vessels, which largely occurred in international waters and outside
Iran’s declared “wartime exclusion zone”. Our evidence includes captured Iranian military orders
and communications, admissions by senior Iranian officials, statements by senior officials of the
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United States and of other countries, extensive contemporary military documentation, analyses by
military experts, physical evidence, and credible eyewitness accounts. Further, our evidence also
includes extensive reporting of knowledgeable third party sources, including the International
Association of Independent Tanker Owners, Lloyd’s Maritime Information Service, the General
Council of British Shipping, the Norwegian Shipowners’ Association, and Jane’s Defence Weekly.
20.3. What does that evidence show? That evidence reflects the following:
¾ Beginning in 1984, Iran used naval vessels, gunboats, mines, helicopters, fixed-wing aircraft,
and land-based missiles to attack merchant ships operating in the Gulf (Counter-Memorial and
Counter-Claim of the United States, paras. 1.04-1.08, 6.03-6.05; Rejoinder of the United
States, paras. 1.11-1.16; Exhibits 2-10, 14, 17, 18-22, 27, 31-32, 180-202). Iran’s minelaying
and other attacks impeded commerce and navigation. The indiscriminate manner in which Iran
conducted them also violated core obligations of the laws of war (see, e.g., Hague Convention
No. VII of 1907), as well as “elementary considerations of humanity” applicable in both times
of war and peace (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 22). The United
States provided detailed evidence on these issues in its presentations last Friday.
¾ Iran attacked more than 200 merchant ships from 31 neutral countries between 1984 and 1988
(Counter-Memorial and Counter-Claim of the United States, para. 1.04; Exhibits 1, 9-11). On
the screen before you now is a map showing the approximate locations of these attacks based
on the documentary evidence.
¾ At least 63 people were killed in these attacks; at least 99 more were injured (ibid.).
¾ As demonstrated by the evidence recounted in Mr. Beaver’s presentation last Friday, Iran’s
responsibility for these attacks is well-documented within the international shipping
community, such as by Lloyd’s Maritime Information Service (see Rejoinder of the United
States, para. 6.07).
¾ According to Lloyd’s:
“The significant volume of reporting received by the [Lloyd’s] Casualty
Department regarding Iran’s attacks did not indicate that Iran targeted its attacks
against vessels carrying war matérial destined for Iraq. It was clear that most
merchant vessels were not carrying such cargo. Nor did the reporting reflect that Iran
limited its attacks to vessels that resisted Iran’s attempts to visit and search; indeed,
few, if any vessels appeared to have been attacked for this reason.” (Exhibit 10,
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para. 23; see also Counter-Memorial and Counter-Claim of the United States,
para. 1.07.)
¾ Indeed, Iran has presented no evidence whatsoever to this Court that such vessels were carrying
war matérial.
¾ Rather, the “apparent motive” of Iran’s attacks was to disrupt the trade of countries which were
generally sympathetic with Iraq, in the hope that they would pressure Iraq in the conduct of the
war (Exhibit 2, at 4).
20.4. These facts are confirmed by statements of the Government of Iran itself. Iran’s
President, the Speaker of its Parliament, its Ambassador to the United Nations, the Commander of
its Navy, and other Iranian officials made public statements admitting Iranian attacks on third
country merchant ships and threatening further such attacks (Exhibits 6, 13, 41, 50, 51, 55, 198).
As this Court stated in the Nicaragua case, and as counsel for Iran agrees (CR 2003/5, p. 56),
“statements of this kind, emanating from high-ranking official political figures, . . . are of particular
probative value when they acknowledge facts or conduct unfavourable to the State represented by
the person who made them. They may then be construed as a form of admission.” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J.
Reports 1986 p. 41, para. 64 (Judgment of 27 June 1986).) The best Iran can do in explaining these
statements is that some of them were “made at prayer meetings or in radio interviews for the home
audience” during the course of a perilous war (Further Response to the United States’
Counter-Claim of Iran, para. 3.42), as though that somehow made them less truthful.
20.5. Further, as I noted on Monday, Iran’s Deputy Foreign Minister told Norway’s
Ambassador to Tehran in 1988 that Iran had attacked Norwegian vessels simply because they were
carrying cargo to and from docks in Saudi Arabia and Kuwait, and even acknowledged that Iran
was aware that this violated international law (Exhibit 198). Norwegian officials subsequently
relied on these statements in considering how to address the threats such attacks posed to Norway’s
interests and to the lives of its seamen (Exhibit 263).
20.6. Moreover, the United States submits that Iran’s attacks on shipping in the Gulf were so
widely and publicly known ¾ in the press, in the reports of companies and shipping associations,
in the communications of governments and international organizations ¾ that the Court should
accept them as established fact (see M. Kazazi, Burden of Proof and Related Issues 174 (1996);
- 20 -
“the concept of judicial notice itself is undoubtedly admitted in international procedure and is
applied by different tribunals including the International Court of Justice”; United States
Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 9-10, paras. 12-13 (Judgment of
24 May 1980); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1986, p. 40, paras. 62-63 (Judgment of 27 June 1986)).
The harm to United States interests
20.7. Mr. President, Members of the Court, Iran’s attacks and minelaying created conditions
that impeded commerce and navigation. Vessels seeking to navigate in the Gulf were in jeopardy.
Commercial goods passing through the Gulf were in jeopardy. The United States has identified
several specific examples of these Iranian attacks against commerce and navigation, although it has
not tried to document in detail all of Iran’s actions against neutral vessels (Counter-Memorial and
Counter-Claim of the United States, para. 6.08; Rejoinder of the United States, para. 6.06; and
Exhibits cited therein). The evidence before you, however, demonstrates that Iran’s attacks caused
several types of harm to the commerce and navigation of the United States.
20.8. First, Iran’s actions damaged United States flag vessels. For example, in July 1987, the
United States flagged tanker Bridgeton, struck a mine laid by Iran not far from Farsi Island. The
mine ripped a large hole in the Bridgeton’s hull, requiring 150 tons of steel repair (Rejoinder of the
United States, pp. 183-184, para. 6.06).
20.9. Second, Iran’s actions damaged United States owned vessels. In October 1987, the
United States owned tanker Sungari was struck by an Iranian missile which ripped a large hole in
its starboard tank and set the tanker ablaze (ibid., p. 185). In November 1987, the United States
owned tanker Lucy was attacked by rocket propelled grenades launched from Iranian gunboats. In
February 1988 the United States owned tanker Diane was attacked by an Iranian frigate. Attacks
such as these resulted in extensive damage to United States owned property (ibid., pp. 185-187).
20.10. Third, Iran’s actions damaged United States owned cargo. For example, the United
States has provided extensive evidence regarding an Iranian mine that blew a 1-m wide hole in the
tanker Texaco Caribbean in August 1987. The Texaco Caribbean was chartered to a United States
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company, Texaco, Inc. After hitting the mine, it spilled into the Gulf approximately 57,000 barrels
of Iranian light crude oil owned by Texaco.
20.11. Fourth, Iran’s actions harmed property beneficially owned by United States nationals.
Vessels such as the Esso Freeport and the Esso Demetia ¾ which Iran attacked in November 1987
and June 1988 respectively ¾ were owned by companies that were in turn wholly owned by
United States companies. When such vessels were harmed, United States ownership interests were
also harmed.
20.12. Fifth, Iran’s actions resulted in serious injury to United States nationals. For instance,
when Iran’s HY-2 missile hit the United States flagged tanker Sea Isle City in October 1987, the
explosion not only severely damaged the vessel, but the flying glass from the bridge windows
blinded the captain, and he further suffered a fractured skull, a collapsed lung, and many broken
bones. Other crew members were seriously injured as well (ibid., pp. 185-186; see Exhibit 88).
20.13. Sixth, Iran’s actions resulted in costs to the United States for rescue, transport, and
repair operations. Moreover, Iran’s actions resulted in costs to the United States in providing
protection for United States vessels in the Gulf, for clearing minefields, and for other activities.
For example, as the Court has heard, when returning from a voyage escorting United States
merchant vessels in the Gulf, the U.S.S. Samuel B. Roberts struck a mine laid by Iranian forces,
causing extensive damage to the vessel and injuring ten United States sailors (Rejoinder of the
United States, pp. 187-188, para. 6.06).
20.14. Seventh, Iran’s actions generally threatened and impeded all commerce and
navigation between the United States and Iran, whether or not it involved United States flagged or
owned vessels or cargo. For example, Iran’s actions resulted in higher costs for all vessels engaged
in such commerce and navigation, such as through higher insurance rates (Rejoinder of the United
States, paras. 1.11, 6.08-6.09, 6.12-6.16). Mr. Beaver addressed this type of harm in his
presentation on Monday, and Professor Murphy will return to it shortly in the course of analysing
Iran’s violation of the 1955 Treaty.
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The “context” of Iran’s attacks
20.15. Mr. President, Members of the Court, before I conclude, let me say something about
the broader context in which these attacks occurred. Iran argues that the “context” of the armed
conflict in the Gulf must be taken into account when considering the United States counter-claim
(Further Response to the United States’ Counter-Claim of Iran, para. 3.4). The broader context,
however, simply highlights that Iran unlawfully engaged in brutal attacks against innocent vessels
operating in the Gulf, causing extensive personal injury, loss of life and property, and other
damages.
20.16. When Iran speaks of “context,” it is essentially asking this Court to find that Iraq
invaded Iran in 1980 and that Iran had to respond by laying mines, launching missiles, and
deploying gunboats against unarmed commercial vessels operating in the Gulf. Iran’s version of
the Iran-Iraq war is, of course, self-serving and incomplete. For instance, Iran’s own evidence
shows that the United Nations efforts to arrange a ceasefire after Iraq’s withdrawal from Iranian
territory in June 1982 was thwarted not by Iraq, but by Iran, which thereafter proceeded to launch
its own invasion into Iraq (Memorial of Iran, Vol. II, Exhibit 9, p. 236; Further Response to the
United States’ Counter-Claim of Iran, Exhibit 1).
20.17. Yet, even if Iran had to respond in self-defence to Iraqi attack, and even if it could
show ¾ which it has not ¾ that some of the many commercial vessels in the Gulf were
surreptitiously engaging in commerce with Iraq, none of this would justify Iranian attacks against
any vessels (even suspected smugglers) without warning and without visit and search. As the
Court has seen, few if any of the ships Iran attacked had resisted Iranian attempts to visit and
search.
20.18. Moreover, none of Iran’s arguments even begins to justify Iranian attacks against the
many vessels Iran had no reason to believe were engaged in commerce with Iraq. Regardless of
whether Iran was the victim of Iraqi aggression, international law does not recognize such acts
against neutral vessels as part of the right of self-defence. Iran accepts in its Further Response to
the United States’ Counter-Claim that ships operating in the Gulf in this period belonging to the
United States “must, as a matter of principle, be considered as neutral” (Further Response to the
United States’ Counter-Claim of Iran, para. 7.10).
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20.19. Thus, it is no surprise that, after hearing the concerns of the States in the region
(Exhibits 181, 193, 201, 202), the Security Council in resolution 552 (1984) expressly condemned
Iran’s attacks on vessels in the Gulf, which the Security Council viewed as constituting “a threat to
the safety and stability of the area” and as having “serious implications for international peace and
security” (Exhibit 27). Nor is it a surprise that both the Arab League and the Gulf Co-operation
Council denounced Iran’s attacks (Exhibits 182-183), as did numerous countries, including
Bahrain, Egypt, France, Japan, Jordan, Kuwait, Saudi Arabia, the Soviet Union, and the United
Kingdom (Exhibits 184-202; Memorial of Iran, Vol. II, Exhibit 23). As the reactions of these
institutions and States make clear, the “context” of the Gulf in the 1980s was simply one of Iran
acting well outside the bounds permitted to a belligerent in the course of an armed conflict, and in
ways that damaged the interests of States around the world.
Conclusion
20.20. Mr. President, Members of the Court, that concludes my presentation on the facts as
they relate to the counter-claim. I ask that you now call again on Professor Murphy to continue the
United States presentation.
The PRESIDENT: Thank you, Mr. Mattler. I give the floor once again to
Professor Murphy.
Mr. MURPHY: Thank you, Mr. President. May it please the Court.
21. IRAN VIOLATED ARTICLE X, PARAGRAPH 1, OF THE 1955 TREATY
21.1. Mr. Mattler has summarized for you the facts upon which the counter-claim is based.
It is now my task to explain why Iran’s attacks and minelaying in the Gulf constituted a violation of
Iran’s obligations under Article X, paragraph 1, of the 1955 Treaty.
21.2. My presentation will proceed in seven parts. First, I will address how Iran’s actions
impeded “freedom of commerce and navigation”. Second, I will discuss why that commerce and
navigation was “between the territories” of Iran and the United States. Third, I will explain the
types of United States interests that were harmed by Iran’s violation of Article X. Fourth, I will
address why the laws of war and neutrality do not excuse Iran’s actions. Fifth, I will discuss why
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Iran’s actions cannot be justified as a matter of Article XX of the Treaty or in self-defence. Sixth, I
will address Iran’s characterization of the counter-claim as either a “generic” claim or as a series of
“specific” claims. And finally, seventh, I will touch upon the issue of remedy.
A. Iran’s actions impeded “freedom of commerce and navigation” in violation of Article X,
paragraph 1
21.3. First, let me explain how Iran’s actions impeded “freedom of commerce and
navigation” as understood in Article X, paragraph 1. Based on the extensive evidence presented to
the Court, as just summarized by Mr. Mattler, there can be little doubt that Iran’s attacks in the
1980s impeded such freedoms in myriad ways.
21.4. Article X, paragraph 3, of the 1955 Treaty ¾ which appears at tab 11 of the judges’
folders ¾ as well as customary rules on the law of the sea, make clear that freedom of navigation is
to include the liberty to pass innocently through territorial waters. I note that the United States
refers to Article X, paragraph 3, here as a means of interpreting Article X, paragraph 1, a general
approach to interpreting that provision which Iran agrees is appropriate (see Reply and Defence to
Counter-Claim of Iran, para. 9.6). After the Iran-Iraq war broke out, Iran declared a wartime
exclusion zone that forced vessels not inbound for Iranian ports to stay outside Iranian territorial
waters in the Gulf. While the establishment of such an exclusion zone is permissible under the
laws of war and under Article XX of the Treaty, it was incumbent upon Iran to provide a safe
alternative route for such excluded vessels.
21.5. This Iran did not do. Outside Iran’s exclusion zone, such vessels were attacked by
Iranian gunboats, by Iranian helicopters, their naval vessels, and their aircraft, as well as exposed to
and damaged by Iranian mines. As a result, all vessels were exposed to higher navigational risks,
which led to increased costs, costs of navigation in the form of delays, higher insurance rates, and
extraordinary measures that had to be taken to protect crews and vessels (see Counter-Memorial
and Counter-Claim of the United States, paras. 6.13-6.16). Indeed, as we have demonstrated, such
vessels were forced to use a very narrow strip of navigable waters that channelled such traffic past
Iran’s offshore oil platforms.
21.6. Mr. President, Members of the Court, it is hard to imagine a more obvious
encroachment upon the freedom of navigation and commerce than affirmatively attacking
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commercial vessels on the high seas or in neutral shipping lanes. The Court’s decision in the
Nicaragua case could not be more on point. There, the Court found that the United States had
placed mines in Nicaraguan harbours, causing extensive damage to both Nicaraguan and
non-Nicaraguan vessels. The Court held that the United States had acted “in manifest contradiction
with the freedom of navigation and commerce” protected by the similar bilateral treaty that was at
issue in that case (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 139, para. 278).
21.7. Moreover, Article X, paragraph 1, should be read in light of Article X, paragraph 5, of
the 1955 Treaty ¾ that, too, is at tab 11 in the judges’ folders. Reading those two provisions
together ¾ Article X, paragraph 5 and Article X, paragraph 1 ¾ it is clear that Iran was obliged to
assist vessels in distress and to provide them with friendly treatment and assistance. By doing the
exact opposite — by placing them in distress and threatening them — Iran was clearly impeding
core elements of the freedoms of commerce and navigation (see Rejoinder of the United States,
paras. 6.24-6.28).
21.8. The Nicaragua case is not the only time that this Court has unequivocally condemned a
State for laying mines in waters open to freedom of navigation by foreign vessels. As the Court
well knows, in the Corfu Channel case, the Court had before it a claim by the United Kingdom that
Albania violated international law by laying mines in an international waterway. Albania claimed
that it had not laid such mines and further claimed that “exceptional circumstances” allowed
Albania to regulate the passage of foreign vessels (I.C.J. Reports 1949, pp. 11-12). The Court
closely analysed the evidence before it, in that case, and concluded that the mines were of a
particular type — German GY mines — and were in a particular location such that the Court could
infer that Albania was responsible for the laying of the mines (ibid., pp. 16-22). In the face of
Albania’s assertion that the mines might have “floated” into the Corfu Channel from somewhere
else, the Court looked at the evidence and found that the evidence was inconsistent with such a
theory (ibid., p. 15). In the face of Albania’s assertion that the mines might have been laid by
another government ¾ in that case, purportedly by the Greek Government ¾ the Court saw no
need to dwell on the assertion, saying that it was “mere conjecture” and “based on no proof” (ibid.,
p. 17). And, finally, the Court concluded that the “obligations incumbent upon the Albanian
- 26 -
authorities consisted in notifying, for the benefit of shipping in general”, the existence of the
minefield, an obligation that arose in part from “the principle of freedom of maritime
communication” (ibid., p. 22). Thereafter, as the Court well knows, the Court conducted further
proceedings to quantify the amount of compensation due.
21.9. Now, in finding Albania responsible in the Corfu Channel case, the Court determined
that Albania must have known about the minefield and yet failed to notify others. The Court was
not prepared, in that case, to determine that Albania itself had, in fact, laid the mines, because the
United Kingdom furnished no evidence in support of that assertion (ibid., p. 16). By contrast, in
this case, the United States has presented to the Court overwhelming evidence that it was Iran who
laid the mines, as was recounted in depth by my colleague, Mr. Mathias, this past Friday
(CR 2003/9, paras. 3.1-3.39) and Mr. Mattler on Monday. I will not repeat that evidence here, but I
do note that it consists of a wide variety of credible and unrefuted evidence: evidence of Iranian
minelaying from the reports of shipping companies and the shipping industry; evidence of mines
recovered at the scene where the mines were struck; evidence from experts worldwide who
determined that the mines were Iranian, based on the size, on the shape, and on the type of mine,
and on their unique serial numbers; and even evidence catching an Iranian vessel “red-handed” on
the high seas in the act of laying such mines. The only further evidence that could possibly be
provided to this Court would be a complete and honest admission by the Government of Iran itself,
and even there, we submit that United States Exhibits 50 and 55 constitute such an admission when
read in context. In short, this Court has before it the kind of evidence that would have allowed a
direct finding in the Corfu Channel case that Albania had laid the mines.
21.10. In order to protect United States flagged vessels in the Gulf, the United States had to
deploy military escort ships, such as the Samuel B. Roberts. By mining the shipping lane known to
be used by these vessels, Iran severely impeded the ability of these military vessels to navigate
through the Gulf as well. Iran has noted that Article X, paragraph 6, of the 1955 Treaty ¾ again, at
tab 11 in the judges’ folders ¾ defines the word “vessels” as not including “vessels of war”. But,
with all due respect Mr. President, Article X, paragraph 1, of the Treaty speaks of the “freedom of
navigation” without any use at all of the term “vessels”, and thus does not exclude under its
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protection freedom of navigation for military vessels. Contrary to Iran’s position, there is simply
no express exclusion of military vessels from Article X, paragraph 1.
21.11. Again, the Nicaragua case supports the United States position on this point. In that
case, the Court found that the United States breached an analogous article protecting freedom of
commerce and navigation, which similarly excluded in its final paragraph “vessels of war” as well
as “fishing vessels” from the definition of “vessels”. In that case, the Court found a violation of
“freedom of commerce and navigation” in part based on damage caused by mines to “fishing
vessels” ¾ indeed, the only Nicaraguan flagged vessels that struck mines in that case appear to
have been fishing vessels (I.C.J. Reports 1986, p. 46, para. 76; p. 147, paras. 292 (7); see also
Rejoinder of the United States, paras. 6.18-6.19). Thus, the Court in the Nicaragua case did not
regard the exclusion of “fishing vessels” in paragraph 6 of that Treaty as applying to the freedoms
being protected in paragraph 1. As such, we submit that this Court today should not regard the
exclusion of “vessels of war” in paragraph 6 of the 1955 Treaty as applying to the freedoms at issue
in this case.
21.12. Moreover, the Court in this case has interpreted the “freedom of commerce” to
include “not merely the immediate act of purchase and sale, but also the ancillary activities
integrally related to commerce” (I.C.J. Reports 1996 (II), p. 819, para. 49). As such, an activity in
which a military vessel is either escorting a commercial vessel, or is present in the area to protect a
commercial vessel during its voyage, and thus to promote commerce, must be regarded as an
“ancillary activity” protected under the “freedom of commerce” provision of Article X, at least
where the threat being addressed stems from the actions of the other party (see Rejoinder of the
United States, para. 6.17). Indeed, the Court has expressly envisaged a violation of Article X,
paragraph 1, by acts “capable of affecting” the transport of goods (ibid., p. 819, para. 50 (emphasis
added); see also Reply and Defence to Counter-Claim of Iran, para. 6.41 (Article X, paragraph 1,
“prohibits any action that might impede commerce in any way whatsoever”)). Because military
escort was deemed necessary to ensure the safe transport of commercial goods, mining of sea lanes
and other similarly hostile action that inhibits the use of such military escorts, is an act directly
“affecting” the transport of commercial goods. And as such, that act impedes the freedom of
commerce and navigation, and violates Article X.
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21.13. In short, the acts undertaken by Iran without question impeded commerce and
navigation; indeed, we submit, that was the very purpose of Iran’s actions.
B. Iran’s actions impeded commerce and navigation “[b]etween the territories of the two
High Contracting Parties” within the meaning of Article X, paragraph 1
21.14. Now let me turn to now to the second part of my presentation, which addresses how
Iran’s actions impeded freedom of commerce and navigation “between the territories” of the two
States. As I discussed yesterday (CR 2003/11, para. 15.21), this too is an important element of
Article X, paragraph 1.
21.15. Unlike the situation with stationary platforms that, when attacked, either were not
producing oil or were producing oil at a time when it could not be exported to the United States, the
United States has established in its pleadings that, during the time period of Iran’s attacks on
neutral vessels, there was extensive commerce in goods ¾ as well as extensive navigation of
merchant vessels ¾ directly between the United States and Iran.
21.16. Indeed, in 1987 alone, the United States imported from Iran goods valued at some
$1.6 billion; most of those goods travelled by seagoing vessel. In the same year, the United States
exported to Iran some $54 million worth of goods, of which approximately $35 million in goods
travelled by seagoing vessel. Such commerce and navigation continued at substantial levels in
1988 (Rejoinder of the United States, para. 6.10). In this regard, the Court will wish to note that,
while the October 1987 embargo by the United States banned the import of Iranian origin oil and
oil products, it did not ban the import of any other Iranian origin products, nor did it ban United
States exports to Iran.
21.17. The fact of this substantial commerce is not questioned in this proceeding; Iran itself
concedes its existence (Reply and Defence to Counter-claim of Iran, p. 222, para. 11.5). Where the
Parties apparently differ is whether Iran’s indiscriminate attacks and minelaying against vessels in
the Gulf actually impeded commerce and navigation between the territories of the two States.
21.18. For the United States, it seems obvious that Iran’s actions did impede such commerce
and navigation. Vessels travelling from United States ports or territorial waters to Iranian ports or
territorial waters, even if to pass innocently through Iranian territorial waters to another destination,
were clearly in jeopardy because of Iran’s acts. Vessels departing the United States that
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approached the Persian Gulf risked hitting Iranian-laid mines in the Gulf of Oman (see, e.g.,
Exhibits 16 and 53). Vessels departing the United States that entered the Gulf but stayed outside
Iran’s exclusion zone risked being attacked surreptitiously, with loss of life and loss of property.
As a consequence, vessels and crewmen feared approaching and entering the Gulf, whether to call
at Iranian ports, or to pass through Iranian territorial waters, or ¾ having been forced out of those
waters ¾ to navigate anywhere at all in the Gulf.
21.19. Although Iran would have it otherwise, vessels travelling to and from Iranian ports
were not immune from Iran’s wrongful acts, as evidenced by the disaster that befell the Texaco
Caribbean in August 1987. Having picked up Iranian light crude oil from Iran’s Larak Island
terminal, the Texaco Caribbean departed the Gulf, but then hit an Iranian-laid mine in the Gulf of
Oman (see Rejoinder of the United States, para. 6.06; Exhibit 53). Such were the perils of
engaging in commerce and navigation with Iran given Iran’s dangerous and wrongful conduct in
the region.
21.20. Those vessels that entered the Gulf and managed to avoid being mined or attacked
nevertheless incurred considerable financial costs due to Iran’s behaviour. The evidence we have
presented to you shows that vessels entering the Gulf had to transit in areas of higher navigational
risk, including shallow waters, and had to increase their speed at night, thus further endangering
safety (see, e.g., Exhibit 3; Exhibit 11; Exhibit 31; Exhibit 180, para. 14). Voyages that
otherwise could have been done continuously now had to stop during the daytime, thus extending
the cost of the voyage (see, e.g., Exhibit 180, para. 15; Exhibit 31, para. 8). Our evidence shows
that the owners of such vessels had to pay much more expensive insurance premiums, had to
physically modify the vessels so as to anticipate potential attacks, and had to incur increased labour
costs both by paying danger pay to crew members and by delaying routine maintenance activities
(see, e.g., Exhibits 1, 7 and 31, para. 2; Exhibit 180, para. 8). Such conditions impeded commerce
and navigation between the territories of the two States.
21.21. The Court’s approach in the Nicaragua case supports this position (see Rejoinder of
the United States, para. 6.22). In that case, there was no dispute between the parties as to the
existence of trade between them, and thus the Court found that such trade existed. In the case now
before this Court, there is no dispute between the Parties that there existed trade between the two
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States in the relevant time period, except for the United States embargo on Iranian origin oil after
October 1987. Further, in the Nicaragua case, the Court considered the laying of mines and the
attacks on port facilities to be the type of acts that inherently impeded the ability of maritime
vessels to engage in such trade. In the case now before this Court, the United States has
demonstrated that Iran engaged in a series of similar acts that inherently impeded the ability of
maritime vessels to engage in commerce and navigation between the territories of the two States.
In short, the United States has made no less showing in this case than was made by Nicaragua in
the Nicaragua case.
21.22. By contrast, with respect to its claim, Iran has not made a sufficient showing. Iran has
failed to show, and the United States denies that there was, any oil trade between the territories of
the two States in the relevant time period, at either geographic end. And further, given that the
platforms were used for offensive military purposes, the platforms were not entitled to any
protection under Article X.
21.23. The United States suggests that the Court approach with considerable caution Iran’s
interpretation of the phrase “between the territories” in Article X, paragraph 1, for Iran’s
interpretation has evolved considerably over the course of this case. I direct your attention to the
screen and to tab 12 in the judges’ folders. In its Memorial, Iran asserted that “freedom of
commerce” in Article X, paragraph 1,
“is affected in substance as soon as one Party causes harm to the commercial activities
of the other. This approach is perfectly logical since in the majority of cases it is
impossible to know in advance to whom goods destined for commerce and export will
be finally sold or resold, in the same way as it is impossible to foresee in which
territory they will ultimately arrive.” (Memorial of Iran, para. 3.66; see also
Application of Iran, Part II (b).)
21.24. Thus, Iran commenced this case with an extraordinarily and unsustainably broad
interpretation of the scope of Article X, paragraph 1. Only after the filing of the United States
counter-claim did Iran disown such a broad interpretation, and instead find at least some real
meaning in the phrase “between the territories”. I direct your attention to the next slide, which
appears at tab 13 in the judges’ folders. In its final pleading, Iran settles on this standard that:
“any claim under Article X(1) is justified if the claimant proves that the commerce in
goods departing from the territory of one of the Parties, even if transiting through or
being modified in third countries, and then reaching the territory of the other Party is
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obstructed or prevented without justification by conduct attributable to the
respondent” (Further Response to the United States’ Counter-Claim of Iran,
para. 6.28).
Now, this is obviously a very self-serving standard, one that is tailored to meet Iran’s claim. For
the reasons I discussed yesterday, Iran’s standard is inappropriate in this case both as a matter of
law and as a matter of the facts of this case applied to law (CR 2003/11, paras. 15.22-15.72). But if
one were to use such a standard, it is clear that the commerce and navigation at issue in the
counter-claim certainly falls within it.
21.25. Indeed, contrast Iran’s basic assertion in its claim with the facts of the counter-claim.
Iran advances a claim based on an alleged sequence whereby crude oil extracted via the three oil
platforms located outside Iranian territory, is then piped to Iranian territory for processing, then
transported by vessels to certain other countries, then offloaded and co-mingled with other crude
oil, transformed into new products through refinement, and then those new products sometimes are
re-exported by different vessels under different contractual relations to further countries, including
possibly the United States. That’s the sequence of Iran’s claim. Iran cannot possibly maintain that,
on the one hand, such an extraordinarily attenuated movement of oil falls within the scope of
“between the territories” language of Article X, paragraph 1, while, on the other hand, Iranian
attacks and mining that directly impeded commerce and navigation between the United States and
Iran did not.
C. United States interests at stake in this counter-claim are protected by the 1955 Treaty
21.26. Mr. President, I turn to the third part of my presentation, which addresses the types of
United States interests that were harmed by Iran’s violation of the Treaty.
21.27. As a general matter, the full range of Iran’s violent acts against neutral shipping in the
region harmed United States interests. There was extensive commerce and navigation between the
two States in the relevant time period. There were Iranian attacks that directly and severely
affected such commerce and navigation.
21.28. To assist the Court, the United States has presented information on particular vessels
because it demonstrates the various ways in which United States interests were affected (see
Rejoinder of the United States, paras. 6.32-6.38). Some of those vessels were United States
flagged vessels and thus the United States interest concerns —among other things—the nationality
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of the vessel. Other vessels that were attacked or mined by Iran were owned or operated by United
States companies. Some vessels contained cargoes owned by United States nationals. And many
other vessels were simply engaged in commerce and navigation between the United States and
Iran. Regardless of the juridical status of their vessels, the United States and its nationals were
directly harmed by Iran’s failure to abide by a treaty that protects such commerce and navigation.
21.29. Now, Iran attempts to deflect the Court’s attention from the overall interference in
commerce and navigation between the two States by trying to pick apart the juridical status of the
various vessels selected by the United States as examples of harm to United States interests. In
arguing that Iran’s attack on each of the vessels was outside the scope of Article X, paragraph 1,
Iran argues either that (1) the vessel was not under United States flag or (2) the vessel was
improperly placed under United States flag. Both of those arguments are specious.
21.30. First, there is no requirement in Article X, paragraph 1, that the “freedom of
commerce and navigation” between the parties be limited solely to United States flagged vessels.
Nor is there any limitation that the “freedom of commerce and navigation” is limited to United
States owned vessels or even United States owned cargo. To take a simple example, consider a
merchant who sends a rug to an Iranian port, where it is transferred to a French vessel for shipment
to the United States, where it is then sold. That commerce and navigation between Iran and the
United States is fully protected by Article X, paragraph 1, regardless of the fact that the vessel is
not United States flagged, the vessel is not United States owned, and the cargo is not even United
States owned. In Article X, paragraph 1, Iran pledged that there would be freedom of commerce
and navigation between the territories of our two States, without any further requirement regarding
the flagging or ownership interests of vessels between the two States. By violating Article X,
paragraph 1, Iran has harmed United States economic interests.
21.31. Consequently, in addition to evidence of United States flag vessels that were attacked,
the United States has presented to the Court examples of five vessels that were owned indirectly by
United States companies through wholly owned subsidiaries, and a sixth that was chartered by a
United States company and was carrying cargo owned by that company. When Iran attacked those
vessels, the United States and United States companies were directly injured ¾ injured by virtue of
the harm done to their economic interests. The United States has cited authority in its pleadings
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regarding the ability of a State to protect a vessel in which its nationals have ownership interest
(Rejoinder of the United States, para. 6.35). Such authority is all the more compelling in the
context of a bilateral treaty in which Iran has agreed that there shall be freedom of commerce and
navigation between the two States, without any limitation that such commerce or navigation occur
by United States flagged vessels. And further, to satisfy the Court that flag States other than the
United States do not object to the United States advancing this claim, we have submitted evidence
to you that the flag State for each of the non-United States flagged vessels has no objection to the
United States counter-claim (Exhibits 179, 258).
21.32. In its final pleading, Iran cites too the Saiga case, the Barcelona Traction case, and
the ELSI case in support of Iran’s view that the United States may not advance a claim that is based
on harm to United States nationals when the vessel that was attacked was not under the United
State flag. None of those cases, however, stands for that proposition. In the Saiga case (38 ILM,
1323), the Tribunal for the Law of the Sea had before it as a claimant the flag State of the vessel
concerned. The Tribunal did not pass upon the rights of non-flag States as they might relate to the
Saiga. In the Barcelona Traction case (I.C.J. Reports 1970, p. 3 ), this Court was called upon to
decide Belgian shareholders’ rights on the basis of customary international law as it existed in
1970. In denying Belgium standing to bring the case, the Court expressly stated that it might have
reached a different conclusion if it had been construing a treaty (ibid., paras. 87, 90). By contrast,
the issue before this Court is precisely that — the interpretation of a bilateral treaty. And when the
Court was confronted in the 1989 ELSI case (I.C.J. Reports 1989, p. 15) with a bilateral treaty, the
Court looked at the general structure of the treaty, at the specific language of its provisions, and in
some cases at the practical application of those provisions, in order to disregard the corporate form
and to recognize broad rights of owners. The Court can and should do the same in this case.
21.33. Second, notwithstanding the irrelevance to the counter-claim, the United States feels
obliged to address briefly Iran’s allegations concerning United States flagging procedures. In our
written pleadings, we have set out in detail why the reflagging of 11 Kuwaiti tankers was fully
consistent with international law and applicable national law (see Rejoinder of the United States,
paras. 6.29-6.31). Moreover, the various authorities cited by Iran in its final pleading actually
support the legitimacy of the United States flagging procedures. For instance, the 1991 United
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States court case, that Iran appends as Exhibit 7 to its final pleading, found that the 11 tankers
were properly under the United States flag (Further Response to the United States’ Counter-Claim
of Iran, Exhibit 7, at 2027 (“The eleven reflagged tankers squarely meet the definition of an
American vessel provided in [the Fair Labor Standards Act]. These eleven vessels were
documented under the laws of the United States so that they were permitted to fly the American
flag.”)).
21.34. Similarly, the law review article that Iran appends as Exhibit 8 to its final pleading,
analysed the United States reflagging of Kuwaiti tankers, but then found that both this Court and
United States courts view such reflagging as consistent with the so-called “genuine link”
requirement (Further Response to the United States’ Counter-Claim of Iran, Exhibit 8). Indeed,
that law review article noted this Court’s Advisory Opinion in the IMCO case (I.C.J. Reports 1960,
p. 150), in which this Court declined to apply the Nottebohm principle (I.C.J. Reports 1955, p. 4) to
the nationality of ships. In the IMCO case, faced with the issue of determining the “largest
ship-owning nations” for the purposes of membership in the Maritime Safety Committee, the Court
relied on where the shipping tonnage was registered and not on who beneficially owned the
tonnage. Consistent with that approach, the United States reflagged vessels are properly to be
considered vessels of the United States.
21.35. And, in light of the IMCO case, it is no surprise that legal analysts of the Iran-Iraq
tanker war have concluded that a neutral State may place its merchant shipping under the flag of
another neutral State in order to provide it with adequate protection (see Andrea de Guttrey &
Natalino Ronzitti, The Iran-Iraq War (1980-1988) and the Law of Naval Warfare 12 (1993); Wolff
Heintschel von Heineeg, “The Law of Armed Conflict at Sea”, in The Handbook of Humanitarian
Law in Armed Conflicts, p. 426 (Dieter Fleck, ed. 1995)).
Mr. President, at this point I am ready to proceed to the fourth part of my presentation, but I
note the hour and that the United States has about one hour left, in total, in its presentation.
Consequently, this might be an appropriate point for the Court’s break.
The PRESIDENT: Thank you, Professor Murphy. The hearing is suspended for 15 minutes.
The Court adjourned from 4.20 to 4.35 p.m.
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The PRESIDENT: Please be seated. Professor Murphy, please continue.
Mr. MURPHY: Thank you, Mr. President.
D. The laws of war and neutrality do not excuse Iran’s actions
21.36. Mr. President, the fourth part of my presentation on the counter-claim concerns the
laws of war and neutrality as they relate to the counter-claim. Prior to Iran’s final pleading, Iran
simply denied that it attacked any neutral vessels. Now, however, with the weight of the evidence
against Iran on this point, Iran has also argued, apparently in the alternative, that such attacks were
justified under international law. And to that end, Iran included in its final pleading various
arguments regarding the laws of war and neutrality which did not appear in Iran’s Reply Brief
(Further Response to the United States’ Counter-Claim of Iran, paras. 7.1-7.51).
21.37. The arguments advanced by Iran are nothing short of astounding. Iran accepts that it
is illegal to attack neutral vessels, but also says that the vessels it attacked “were indeed to be
characterized as enemy vessels from an Iranian point of view” (ibid., para. 7.6). Iran’s theory
seems to be that, by producing a smattering of evidence that Kuwait, Saudi Arabia, and the United
States purportedly supported Iraq in certain ways during the course of the Iran-Iraq war, that
somehow proves that Iran had free licence to attack any vessels calling at Kuwaiti and Saudi ports.
Mr. President, Iran does not explain why acts that satisfy the jus in bello are therefore incapable of
violating Article X, paragraph 1. But leaving that issue aside, there is no acceptable theory under
the laws of war that would countenance such attacks.
21.38. Iran’s theory initially asserts that Kuwait and Saudi Arabia were belligerents in the
Iran-Iraq war, because Iran believed that they were “deeply involved in the conflict on the side of
Iraq” (ibid., para. 7.8). By contrast, we are told that the United States was not a belligerent
because, while it “tilted” toward Iraq, it did not “become so deeply involved in the conflict that it
had to be considered a party thereto” (Further Response to the United States’ Counter-Claim of
Iran, paras. 7.09-7.10). And as such, apparently Iran thinks that it was entitled to attack Kuwaiti
and Saudi vessels.
21.39. Yet, Members of the Court, there can be little doubt on the record before this Court
that Kuwait and Saudi Arabia fall within the definition of “neutral”. Neither of those countries
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declared war on Iran; neither of those countries engaged in an international armed conflict with
Iran; and both of those countries assumed neutral status with respect to the Iran-Iraq war. And,
even if those countries were supporting Iraq in a manner that violated the law of neutrality, such
support would not make those countries “belligerents”, nor would it not justify Iran attacking
Kuwait with missiles or otherwise. One need look no further than the writings of Iran’s own
counsel to support this point. I direct you to the screen and also to tab 14 in the judges’ folders.
Professor Bothe has written: “While thus the support given by certain Arab States to Iraq probably
was a violation of neutrality and thus triggered a right of reprisal for Iran, these reprisals could not
include a use of force against those states.” (See, e.g., Michael Bothe, “Neutrality at Sea”, in The
Gulf War of 1980-1988 at 207 (I. F. Dekker & H. H. G. Post, eds. 1992).)
21.40. Further, the core of Iran’s theory seems to be that all oil tankers ¾ not just Kuwaiti
flagged oil tankers, not just Saudi flagged oil tankers ¾ but all oil tankers calling at Kuwaiti and
Saudi ports were making an effective contribution to military action because they might be
transporting Iraqi oil. Thus, Iran states that “the alleged Iranian attacks on vessels carrying oil from
Kuwaiti and Saudi Arabian ports would be lawful” (ibid., para. 7.24; see also CR 2003/5, p. 47,
para. 12). In other words, Iran asserts a right to attack the ships of all 30 neutral nations that called
at Kuwaiti and Saudi ports for the purpose of carrying oil out of the Gulf!
21.41. Mr. President, this, too, cannot stand. As the Court is well aware, international
humanitarian law, and the laws of naval warfare, contain certain core principles diametrically
opposite to the theory advanced by Iran (see generally Wolff Heintschel von Heineeg, “The Law of
Armed Conflict at Sea”, in The Handbook of Humanitarian Law in Armed Conflicts, p. 418
(Dieter Fleck, ed. 1995)). Civilians may not be the object of attacks (see 1977 Geneva Protocol I
Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of
International Armed Conflicts, 1125 UNTS 3, Art. 51 (2)). Belligerents must at all times
distinguish between combatants and non-combatants (ibid., at Art. 48; see also Advisory Opinion
on Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, p. 226, para. 78).
Neutral merchant vessels are entitled to carry goods other than contraband to and from belligerents,
so long as it is done indiscriminately. Goods are only “contraband” if they are destined for the
enemy and are susceptible to use in armed conflict (see, e.g., Michael Bothe, “The Law of
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Neutrality”, in The Handbook of Humanitarian Law in Armed Conflicts, pp. 506-510 (Dieter Fleck,
ed. 1995); Leslie C. Green, The Contemporary Law of Armed Conflict, pp. 165-167 (2d ed. 2000);
Ingrid Detter, The Law of War, pp. 351-358 (2d ed. 2000)).
21.42. Now, neutral merchant vessels can acquire the character of an enemy merchant vessel
if they are operating directly under enemy control or are resisting an attempt to establish their
identity, including through visit and search (see Memorial of Iran, Vol. III, Exhibit 13, p. 600).
Yet, even if the merchant vessel acquires the character of an enemy merchant vessel, that alone
does not provide a licence to attack the vessel. Rather, capture of the vessel is the expected result,
and only if military circumstances preclude such capture, may the merchant vessel be destroyed
after all possible measures are taken to provide for the safety of the passengers and crew (see, e.g.,
Leslie C. Green, The Contemporary Law of Armed Conflict, pp. 170-173 (2d ed. 2000);
Michael Bothe, “Neutrality at Sea,” in The Gulf War of 1980-1988, p. 209 (I. F. Dekker &
H. H. G. Post, eds. 1992; “force . . . used against a merchant vessel which is unrelated to, or
inappropriate for, the exercise of a right of visit and search . . . is clearly illegal”). These are core
principles of the law of naval warfare and of international humanitarian law.
21.43. Applying this law to the facts of Iran’s attacks establishes that the attacks were far
from justified and indeed were violations of the jus in bello. The vast majority of oil shipped from
Kuwait and Saudi Arabia was not Iraqi in origin, and the record is clear that Iran made no effort to
ascertain which ships were carrying Iraqi oil. Instead, Iran just indiscriminately attacked oil
tankers. But the more important point is that even if there was Iraqi oil exported on neutral vessels,
that oil was not contraband. Iran had no right to stop and seize such cargo let alone attack it
surreptitiously.
21.44. Again, Iran’s own counsel supports this point. The slide on the screen appears at
tab 15 of the judges’ folders. Professor Bothe has written:
“Oil leaving a belligerent port is not contraband. Contraband is defined as
material destined for a belligerent. The fact that the revenue derived from the sale of
oil is important for the war effort of a belligerent does not mean that the oil becomes
contraband.
For a similar reason, neutral tankers cannot be military objectives. Their
significance for the war effort of the belligerent is only indirect and their contribution
to this effort too remote. The idea that also a neutral tanker carrying oil bought from a
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belligerent is so to say incorporated into that belligerent’s war effort, really widens the
concept of the legitimate military objectives beyond acceptable limits.”
(Michael Bothe, “Neutrality at Sea”, in The Gulf War of 1980-1988 at 211
(I. F. Dekker and H. H. G. Post, eds. 1992.)
21.45. One can only regret that Professor Bothe was not also advising Iran in the mid-1980s,
since then perhaps we would all not be here. But there were others advising Iran. When Kuwait
and Saudi Arabia, along with the other Gulf States, went to the United Nations Security Council to
complain about “Iranian acts of aggression on the freedom of navigation to and from the ports of
our countries” (Exhibit 189), the Security Council did not respond by telling those States “too bad,
you are co-belligerents with Iraq” or “too bad, vessels calling at your ports are fair targets for Iran”.
Rather, the Security Council responded by reaffirming the rights of navigation in the Gulf,
condemning Iran’s attacks on commercial ships en route to and from the ports of Kuwait and Saudi
Arabia, and demanding ¾ demanding ¾ that Iran’s attacks “cease forthwith” (Exhibit 27).
21.46. Now is there some other lawful basis for justifying Iran’s attacks, some sort of theory
of lawful retaliation? Well, consider the following assessment extracted from one of Iran’s own
exhibits, which appears at tab 16 in the judges’ folders. At Exhibit 13 of Iran’s Memorial, Iran was
quite comfortable with the following assessment by Captain J. Ashley Roach. He stated:
“[M]any of the ships hit by Iran were factually neutral ships engaging in truly
neutral commerce, e.g., carrying free goods to or from neutral ports. In short, many of
the ships Iran deliberately attacked were neutrals known by Iran to be carrying goods
exempt from capture or destruction. Iran seemed to justify those attacks as
retaliation ¾ indeed Iran conducted those attacks only after Iraqi attacks on oil
tankers servicing Iranian oil terminals. Iran justified her attacks as a means of
bringing pressure on the Gulf Cooperation Council (GCC) States to stop Iraq from
attacking Iranian oil facilities and tankers. However, retaliation provided no legal
basis for the attacks on those truly innocent civilians and civilian property engaged in
maritime commerce with countries that were not parties to the Iran-Iraq conflict.”
This is straight out of Iran’s own exhibit.
21.47. Suffice it to say, Iran’s actions violated other core principles of international
humanitarian law as well. Iran affirmatively made civilians the object of its attack (see Rejoinder
of the United States, paras. 6.45-6.48; see also Exhibit 1, pp. 8-9). Iran used missiles and mines in
a manner incapable of distinguishing between combatants and non-combatants. Iran’s mines, by
being laid in neutral shipping lanes without warning, violated the laws of war on the use of mines
(ibid., paras. 6.49-6.51).
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21.48. Now, to obtain support for its theory of naval warfare, Iran goes so far as to claim that
it is one endorsed by the United States (ibid., paras. 7.20-7.24). Yet the United States has never
endorsed an approach to the laws of war that so blithely disregards the rights of non-combatants
and the rights of neutral vessels. Rather, the United States has always maintained a sharp
distinction between the legal status of belligerents and that of neutrals. In Exhibit 10 of its final
pleading, Iran has cut and pasted together portions of the 1989 United States Commander’s
Handbook on the Law of Naval Operations. In the parts left out by Iran, the Handbook clearly
defines “neutrals” and “belligerents” and the relationship between them (see United States Naval
Warfare Publication, The Commander’s Handbook on the Law of Naval Operations, NWP 9 (Rev.
A)/FMFM 1-10 at para. 7.1 (1989)). And under those definitions, there is little doubt that Kuwait,
Saudi Arabia, and the United States were all neutrals in the Iran-Iraq war.
21.49. Moreover, the United States Handbook clearly confirms that neutral merchant vessels
only acquire the character of enemy merchant vessels when they are operating directly under
enemy control or resisting an attempt to establish their identity, including visit and search (ibid.,
para. 7.5). On the facts of this case, Iran has not shown that either of those conditions were met.
Rather, the extensive evidence before you shows that those conditions were not met.
21.50. Iran also cites the San Remo Manual, which is not ¾ as the Court knows ¾ a legally
binding document. Yet, in any event, the San Remo Manual does not license attacks against
neutral merchant vessels, such as were conducted by Iran. The San Remo Manual confirms that
neutral vessels are to be protected. Even if such vessels are carrying contraband ¾ which Iran has
not shown ¾ and even if such vessels resist visit and search ¾ which again Iran has not shown ¾
the San Remo Manual clearly states in paragraph 67 that an attack on a merchant vessel may only
take place where “it is not feasible for the attacking forces to first place passengers and crew in a
place of safety. Unless circumstances do not permit, they are to be given a warning, so that they
can re-route, off-load, or take other precautions.” Iran has not established the infeasibility of such
measures for any single attack it undertook and it cannot establish that such measures were
infeasible for the hundreds of attacks Iran committed throughout the course of the Iran-Iraq war.
21.51. In short, Mr. President, Iran is pressing upon this Court a theory of the laws of war
that even Iran, at least in a footnote that it has, admits is controversial (ibid., para. 725, note 27) and
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that was rejected by the Security Council. Were this Court to adopt such a theory, it would provide
a wide-ranging licence for belligerents to attack neutral vessels.
E. Iran’s actions were not “necessary” either in self-defence or to protect Iran’s “essential
security interests”
21.52. I turn now to the fifth part of my presentation. Iran seeks to justify its violation of
Article X on grounds that “essential security interests” and “self-defence” were at stake, since Iran
was responding to Iraqi aggression (Reply and Defence to Counter-Claim of Iran, para. 12.2). In
the course of undertaking such measures, Iran asserts that “some impact on the freedom of trade
and commerce was inevitable and cannot be held to breach the Treaty” (ibid.).
21.53. While unquestionably a state of armed conflict raises issues of self-defence, and of
essential security interests within the meaning of Article XX, paragraph 1 (d), the acts of Iran at
issue in the counter-claim cannot be so justified.
21.54. First, Iran has not established to this Court that its essential security interests in fact
were seriously threatened and damaged by commerce and navigation of neutral vessels in the Gulf.
In the nearly 50 exhibits that Iran has presented to this Court in this phase, there is not a shred of
evidence showing that the vessels Iran attacked were carrying goods which were destined to Iraq
and which were susceptible to use in the Iran-Iraq war. There is no evidence of any kind showing
that these vessels were carrying munitions, were carrying weapons, were carrying uniforms
destined for Iraq, nor any evidence that they were carrying goods susceptible to warlike purposes,
such as materials for constructing weapons. Such trade cannot simply be assumed to threaten
Iranian essential security interests, nor support a right of self-defence. Indeed, many vessels Iran
attacked were outbound from the Gulf and, indeed, carrying goods that were not even Iraqi in
origin.
21.55. Second, even if Iran had proven to this Court that trade on these neutral vessels
threatened Iran’s essential security interests, Iran cannot establish, and has not established, that Iran
reasonably determined that attacks on the neutral vessels were “necessary” to protect those
interests. We have recounted repeated efforts on the part of the United States, as well as other
States and international organizations, to resolve diplomatically any concerns that Iran might have
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had with respect to the neutral character of these vessels. Iran could have, but did not, take
advantage of those efforts.
21.56. Iran has not, in any case, even attempted to make a showing that Iran reasonably
concluded that the attacks on neutral vessels were necessary to protect its essential security
interests. Iran had an alternative, an alternative that was a lawful means of addressing its security
interests. If Iran was concerned about the carriage of Iraqi goods through the Persian Gulf, through
the Strait of Hormuz, through the Gulf of Oman, Iran could have engaged in lawful visit, search
and seizure of such cargo, as is permitted by the laws of war. In light of the Iran-Iraq war, such
action would have been viewed by all States as a reasonable measure that either belligerent could
undertake to protect its security.
21.57. Indeed, one might contrast Iran’s actions in attacking the neutral vessels with Iran’s
act of establishing the Iranian exclusion zone. Creation of the exclusion zone allowed Iran to
minimize the likelihood of Iraqi attacks against Iran’s territory, against its property, against its
people, just as the United States measures against Iran’s oil platforms allowed the United States to
minimize the likelihood of Iranian attacks against United States and other neutral vessels, thus
protecting United States essential security interests.
21.58. With respect to the issue of self-defence, I note that Iran’s attacks on neutral vessels
and its laying of mines, by their very nature, cannot be regarded as satisfying the requirement of
“necessity” (see, e.g., Wolff Heintschel von Heineeg, “The Law of Armed Conflict at Sea”, in The
Handbook of Humanitarian Law in Armed Conflicts 405, at 418 (Dieter Fleck, ed. 1995)
(“Offensive mining may not be undertaken solely to interdict merchant shipping”; “when
belligerents employ missiles . . . they are obliged to ensure that they are directed exclusively at
military objectives”)). By their nature, indiscriminate attacks on innocent vessels falls outside the
scope of any such requirement.
21.59. I also note that Iran cannot establish that its attacks on neutral vessels met the
requirement of proportionality that is inherent in the exercise of the right of self-defence. Even if
one were to assume that ¾ of the hundreds of vessels that Iran attacked in the Gulf in this time
period ¾ a few were carrying goods that was contraband, Iran’s acts of launching missiles, laying
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mines, and otherwise attacking vessels indiscriminately were acts wildly disproportionate to
whatever harm Iran suffered from the hypothetical contraband.
21.60. In short, by simply attacking such vessels and laying mines without notice in neutral
shipping lanes, Iran was not engaged in the protection of essential security interests, nor engaged in
necessary and proportionate self-defence; it was simply terrorizing the vessels of other States.
F. Iran’s classification of the counter-claim as being either “generic” or “specific” is
misguided
21.61. Mr. President, let me move on to the sixth part of my presentation. Iran seems to find
it helpful to analyse the United States counter-claim as being either a “generic” claim or, a series of
“specific” allegations. The United States does not see any particular utility in such an analysis and
so we simply discuss the counter-claim as one would any claim: there are general aspects to it,
along with a variety of specific facts that underlie it. Further though, we note that Iran’s
generic/specific analysis does not reflect the manner in which this Court decides cases.
21.62. For example, consider the Court’s approach in the Nicaragua v. United States case.
In that case, Nicaragua made very general submissions in its Application that the United States was
“directing military and paramilitary actions in and against Nicaragua” in violation of international
law and that by such action the United States “has infringed and is infringing the freedom of the
high seas and interrupting peaceful maritime commerce” (Nicaragua Application of 9 April 1982,
in I.C.J. Pleadings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Vol. I, at 9, para. 26 (a)). Very general allegation. Nicaragua then
presented to the Court in its written and oral pleadings both general information and specific
information about the alleged United States actions. Among that information, Nicaragua presented
evidence regarding 12 specific incidents of Nicaraguan and non-Nicaraguan vessels striking mines,
plus information from Lloyd’s, from press reports, and from other sources indicating that the
United States laid mines without warning (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
pp. 46-48, paras. 76-80).
21.63. In the Court’s its Judgment on the merits, the Court reviewed such evidence, and
concluded that the United States was responsible for laying mines “without warning” during a
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particular time period and in a particular geographic area, “and that personal and material injury
was caused by the explosion of the mines, which also [the Court said] created risks causing a rise in
marine insurance rates” (ibid., p. 48, para. 80). In its dispositif, the Court then found that by laying
such mines “the United States of America has acted, against the Republic of Nicaragua, in breach
of its obligations under Article XIX of the Treaty of Friendship, Commerce, and Navigation . . .”
(ibid., p. 147, para. 292 (7)).
21.64. Now, I don’t know whether Iran thinks that Nicaragua in that case made a “generic”
claim or made a series of “specific” allegations regarding harm to specific vessels, or made both, or
made neither. What I do know is that, in the Nicaragua case, this Court had no difficulty accepting
a general submission alleging that a provision on “freedom of commerce and navigation” had been
violated, no difficulty in considering general and specific evidence of acts in support of that
allegation, and no difficulty in then issuing a judgment stating that the provision had been violated.
The Court did not feel compelled to treat each of the incidents placed before it as individual claims
and it certainly left to the damages phase the more detailed enquiry into what persons or property
were damaged and to what extent. We urge the Court to do the same in this case.
G. Remedy
21.65. In the final part of my presentation, Mr. President, I would like to address very briefly
the issue of remedies, which Iran also addressed in the course of its first round presentation
(CR 2003/8, pp. 40-42). The United States has asked the Court to find that Iran is “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”. We do not
believe that a more detailed finding on this issue would be appropriate at this stage of the
proceedings. Given the variety of the acts that Iran unlawfully committed, as well as the variety of
loss, damage and injury caused by Iran, that underlie the our counter-claim, any further
consideration by the Court on the nature and the scope of the damages should only occur through
thorough written and oral pleadings by both Parties at the reparations stage.
21.66. Iran has requested a similar finding on reparations with respect to its claim. If the
Court were to find Iran’s claim to have merit, then we would likewise expect the Court not to
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undertake any further decision into the nature or scope of the damages owed to the United States
until the reparations stage of these proceedings.
III. CONCLUSION
21.67. Mr. President and Members of the Court, allow me to conclude. The counter-claim
presented by the United States in this case is fully within the jurisdiction of the Court and is
admissible. As the United States demonstrated in its prior written pleadings and oral arguments,
there can be no question that Iran engaged in numerous attacks on neutral shipping in the Persian
Gulf, the Strait of Hormuz, and the Gulf of Oman. Further, there was extensive commerce and
navigation directly between the United States and Iran that was impeded by Iran’s attacks.
21.68. Article X, paragraph 1, of the 1955 Treaty protects the freedom of commerce and
navigation between the territories of the two States. The text, the history, the practice of Article X,
paragraph 1, demonstrate that this provision should be interpreted, in the first instance, so as to
focus on freedom of “commerce and navigation” and, in the second instance, to focus on “between
the territories” of the two States.
21.69. Article X, paragraph 1, does not protect offshore oil platforms that are incapable of
engaging in commerce “between the territories” of Iran and the United States, nor does it protect
offshore platforms used for offensive military purposes. At the same time, Iran’s ongoing military
actions during the 1980s directed against neutral shipping ¾ including United States vessels ¾
directly impeded commerce and navigation between the territories of Iran, and the United States,
and as such, violated Article X, paragraph 1. Therefore, we submit that Iran is obligated to make
full reparation to the United States for its breach, in an amount to be determined by the Court at a
subsequent stage of the proceedings.
21.70. Mr. President, I thank the Court for its patience. I now ask you to call upon the
United States Agent, Mr. Taft, to close the United States presentation in this opening round.
The PRESIDENT: Thank you, Professor Murphy. I now give the floor to Mr. Taft, the
Agent of the United States.
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Mr. TAFT: Thank you. Mr. President, Members of the Court.
22. CLOSING STATEMENT BY THE AGENT OF THE UNITED STATES
22.1. I will now conclude the United States presentation for the opening round. Before I do
so, however, I would like to thank the Court for its close attention during these four days of often
detailed presentations, as well as for its understanding of my need to be absent from these
proceedings on Monday and Tuesday of this week: I am glad to be back with you. As I said at the
beginning of the United States presentation, the Court bears a unique burden, as the principal
judicial organ of the United Nations, to maintain the confidence of States appearing and potentially
appearing before it. We are confident of the Court’s ability to carry that burden.
22.2. Last week, during the three days in which Iran presented its case, the Court witnessed
first-hand an amazing performance. Counsel for Iran stood before this Court and omitted to
mention, or even denied, facts that are so well established that they were and are uniformly held to
be true by every observer of events in the Gulf in the 1980s ¾ every observer, that is, except Iran.
Those facts include that Iran attacked ever-increasing numbers of neutral vessels in the Gulf over a
period of four years from 1984 until 1988. Those attacks only ceased after the United States took
military action for a second time to bring them to an end. Those facts include both Iran’s repeated
use of naval mines and long-range missiles to attack neutral shipping in a highly indiscriminate
manner, and its helicopter and boat attacks on specific neutral vessels. Those facts include Iran’s
use of its oil platforms in the Gulf to facilitate and launch many of those attacks, and the repeated
efforts, by the United States, by the United Nations, and by many other international bodies and
individual States, to convince Iran to stop those attacks without the need to resort to military action.
Unfortunately, all those efforts failed.
22.3. Where are we then? Let me summarize the status of the evidence before the Court.
Mr. President, I am confident that the Court will conclude that the following facts have been
established by the United States over the course of the last five sessions.
¾ First, the uninterrupted flow of maritime commerce, particularly commerce in petroleum,
through the Gulf was essential to the economic stability of the entire developed and developing
world, including to the United States. The safety of United States vessels, cargoes and crews
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was likewise an essential security interest of the United States. Indeed, counsel for Iran
appears to have conceded these facts last week.
¾ Second, Iran’s attacks on neutral shipping in the Gulf killed at least 63 people and injured
many more. The attacks also dramatically increased the risks and costs of carrying oil and
other merchandise through the Gulf. Iran threatened that those attacks would continue.
¾ Third, Iran used its oil platforms to facilitate, and in some cases as a base to launch, those
attacks.
¾ Fourth, many countries, again including the United States, both expressed, and eventually acted
on, their grave concern about the threat posed by Iran’s attacks. Several of those countries
deployed military vessels to the Gulf in an attempt to deter Iran from continuing these attacks.
¾ Fifth, the United Nations, the United States and many other bodies and States took steps to try
to bring an end to Iran’s attacks diplomatically.
¾ Sixth, all those attempts failed.
¾ Seventh, the United States took military action on two occasions to end the Iranian attacks.
22.4. Mr. President, what contested issues are there before the Court? On the question of the
application of Article XX of the 1955 Treaty, the United States submits that there is only one real
issue: whether, given the facts I have just listed, the United States actions were “necessary” to
protect its essential security interests.
22.5. While this issue is contested, Professors Weil and Matheson have shown that ¾ on the
facts I have just listed ¾ this Court should find that the United States actions did not breach
Article X, paragraph 1, of the Treaty because a violation is precluded by the express terms of
Article XX, paragraph 1 (d). They have shown that Article XX applies if the United States actions
were necessary to protect the essential security interests of the United States. The United States
actions are not to be judged here by the standards of self-defence under customary international law
and Article 51 of the United Nations Charter. Nor do the United States actions have to have been
more than “necessary.” In particular, the Treaty does not require that the precise means chosen by
the United States be the only way of addressing Iran’s threat to United States essential security
interests. Indeed, as Professor Weil explained, the United States should be accorded appropriate
discretion in determining whether its essential security interests were threatened and in determining
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how to respond to that risk. Finally, my colleagues have shown that the actions taken by the United
States fell well within that range of discretion.
22.6. What does Iran say in response to these points? Iran asserts that the actions against the
platforms were not necessary to protect United States essential security interests because, on the
one hand, it says those security interests were not really at risk and, on the other, that the United
States actions were not necessary to respond to any existing risk. However, it is hard to give much
credence to these arguments because they are premised on Iran’s denials that it was engaging in
any attacks on United States and other neutral shipping. We have shown that those denials are
false and that United States security interests were clearly at risk from Iran’s missile, mine,
helicopter and boat attacks. Iran attempts to muddy the waters by arguing that Iraq’s actions also
threatened those interests; that argument is simply irrelevant to the issues before the Court.
22.7. With respect to the “necessity” of the United States actions, Iran really does little more
than deny that they were necessary. Indeed, in the almost 20-year history of this case, Iran has
never suggested that any other act by the United States would have convinced Iran to bring its
attacks to an end. It has never said: if the United States had only written one more letter, or the
United Nations had used slightly different language, or the United States had taken action against
other Iranian targets, it would have ceased its attacks. This, at least, is honest on Iran’s part
because ¾ as the Court has heard ¾ Iran’s leaders were intent on continuing the attacks. The only
step that Iran suggests the United States could legitimately have taken to end Iran’s attacks was to
put pressure on Iraq. That argument is nonsense.
22.8. Rather than arguing that the United States overreacted, because lesser steps would have
been sufficient, Iran has suggested in its pleadings that the Court ought to doubt the sincerity of the
United States belief that it had to take action to stop the attacks, because the United States did not
take actions against targets on the Iranian mainland, or against purely military targets. That
argument also is absurd on its face. The United States was not obligated to risk more American
and Iranian lives or greater escalation of the Iran-Iraq war in order to bring Iran’s attacks on neutral
vessels to an end.
22.9. In its presentations last week, Iran argued that the United States acted unlawfully
because, after its initial, limited action against the Rostam platform proved insufficient, and Iran
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stepped up its attacks on United States shipping and other neutral vessels, the United States took
measures against two additional platforms and an Iranian frigate. My colleagues have shown, first,
that Iran’s assertion that the platforms were only fallback targets is false and, second, that the
United States actions were, unfortunately, necessary to bring Iran’s devastating attacks to an end.
And they were, fortunately, effective in eliminating Iran’s threat to commerce and navigation in the
Gulf, effective in eliminating Iran’s threat to the safety of United States vessels, cargoes and crews,
and thus effective in eliminating Iran’s threat to the essential security interests of the United States.
22.10. Because the Iranian attacks threatened United States essential security interests and
the United States response was necessary and appropriate to protect those interests, the
United States actions are outside the scope of the parties’ undertakings in Article X. The Court
need go no further to dispose of this case.
22.11. In particular, the Court need not address the question of self-defence. As
Professor Weil has demonstrated, 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. Any such limitation is contrary
to the language of the Treaty, as well as contrary to this Court’s conclusions in the Nicaragua case.
As it has explained on many occasions in making this point, the United States is not claiming that
its actions were exempt from the strictures of the United Nations Charter or customary international
law. It is only saying that the question of whether the United States actions complied with those
rules, rules that are extraneous to the Treaty, was not submitted to this Court’s jurisdiction pursuant
to the dispute resolution clause of the Treaty. We have also shown that ¾ in any case ¾ the
United States actions were in full compliance with the Charter and with customary international
law.
22.12. Application of Article XX precludes viewing the United States military actions as
prohibited by Article X, paragraph 1. Yet ¾ if we look at the terms of Article X ¾ it is apparent
that Iran has failed to meet the burden of proof that it carries on the only Iranian complaint against
the United States that is truly before this Court: that is, Iran’s claim that the United States
interfered with the freedom of commerce between the territories of Iran and the United States.
Indeed, uncontested facts undercut an essential element of Iran’s claim. Among those facts are:
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¾ The United States did not destroy any goods destined for export, nor destroy any means for
transporting or storing such goods.
¾ The first platform, Rostam, had not been functioning for over a year at the time the
United States took action against it.
¾ The second platform, Sassan, not only was not functioning, but it also could not have produced
oil for sale to the United States in any case due to the imposition of the oil embargo six months
prior to the United States action against it.
¾ The third platform, Sirri, also could not produce oil for sale to the United States at the time of
the United States action against it due to the same embargo.
No one knowledgeable about the international trade in crude oil and refined oil products would
accept Iran’s assertion that its exports of crude oil to Europe constituted commerce between Iran
and the United States. Nor should this Court accept Iran’s argument based merely on speculation
that because it might hypothetically have engaged in oil trade with the United States at some time
in the future there has been a violation of Article X.
22.13. Accordingly, Iran’s claims under Article X, paragraph 1, must be dismissed because
even Iran’s own evidence demonstrates that, at the time of the United States operations it
complains of, there was no commerce in oil from the platforms between the territories of Iran and
the United States. As a result, the United States could not even potentially have interfered with the
freedom of that commerce.
22.14. While these facts regarding the application of Article X, paragraph 1, are dispositive, I
do want to remind the Court of the importance of an additional reason Article X does not apply to
the oil platforms ¾ and that is their offensive military use. Mr. President, Members of the Court,
the provision at issue in this case ¾ “Between the territories of the two High Contracting Parties
there shall be freedom of commerce and navigation” ¾ does not mean that a State can immunize
its offensive military actions, and carry out indiscriminate attacks on neutral vessels, simply by
using a facility that has some connection with commerce between the two States. Stretching this
provision to shield Iran’s attacks from any effective response is wholly contrary to the purpose of
the 1955 Treaty.
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22.15. Are there any additional uncontested or definitively established facts with which the
Court ought to be concerned? Yes, there are: specifically, the crucial facts with respect to the
United States counter-claim. In particular:
¾ There was substantial commerce and navigation between the territories of the United States and
Iran in 1987 and 1988.
¾ Iran’s regular attacks on neutral shipping impeded all commerce and navigation in the Gulf,
including that protected by Article X, paragraph 1, of the Treaty. They did so by, for example,
requiring vessels to travel more circuitous and perilous routes, by requiring them to hide from
Iranian attacks during the day and to travel only at night, by driving up the cost of insurance for
vessels transiting the Gulf, by killing and maiming sailors on vessels that Iran was able to catch
notwithstanding precautions they may have taken, and causing very serious damage to the
vessels themselves.
¾ Finally, vessels protected under Article X, paragraph 1, were directly targeted by Iran and were
damaged by mines Iran laid in shipping lanes in international waters.
22.16. One legal conclusion follows from these facts ¾ which we developed in the
presentation of our counter-claim this afternoon ¾ and that is the same conclusion as was reached
by this Court in the Nicaragua case: actions such as those constitute a breach of the undertaking in
Article X, paragraph 1, with respect to freedom of commerce and navigation.
22.17. How does Iran respond to this? Iran offers incredible theories both to explain and to
justify those attacks. First, Iran blames Iraq for the attacks we have shown Iran itself conducted.
Then Iran attempts to justify the very acts it has denied committing by suggesting that its attacks on
vessels of neutral countries were justified due to its war with Iraq. However, as we have shown,
Iran cannot justify its indiscriminate attacks on neutral vessels, which is why it continues to deny
them. Never, in the almost four years during which Iran engaged in its attacks against neutral
shipping did Iran accept responsibility for those attacks or explain why it thought they were
necessary or how they were consistent with the law of armed conflict and neutrality. Rather, Iran’s
plan was and evidently remains today before this Court to deny its responsibility, at least officially.
Just as Ali Akbar Hashemi-Rafsanjani, then Speaker of the Iranian Majlis, said: “[i]f our ships are
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hit, the ships of Iraq’s partners will be hit. Of course, we will not claim responsibility for anything,
for it is an invisible shot that is being fired.”
22.18. As my colleagues have explained, the unavoidable conclusion that Iran breached
Article X, paragraph 1, of the Treaty has two consequences. The most obvious is that it triggers
Iran’s obligation to make reparations to the United States for that international wrong.
22.19. Equally important, however, in the view of the United States, is the fundamental
international legal principle that prevents a State from prevailing on a claim based on allegedly
wrongful acts when that State has previously breached its reciprocal obligations. That rule is an
eminently just one. So too is the related rule that precludes a State from prevailing on a claim with
respect to an act that was a consequence of its own wrongful deeds. Even if the United States
actions against the platforms had happened to amount to a breach of the 1955 Treaty, which they
did not, those acts were taken only because of Iran’s prior, and far more egregious, breaches of its
obligations, including Iran’s obligations under the laws of war and neutrality. Iran’s claim must
also be dismissed because the claim arises out of Iran’s own manifestly wrongful conduct.
22.20. Mr. President, Members of the Court, at the outset of these proceedings, counsel for
Iran expressed a concern that the Court not show any preference for the United States because it is
a powerful State. It is not my purpose to quarrel with Iran’s characterization of the United States.
It is a powerful country. Nor do I question counsel’s observation that the advantages a powerful
State enjoys in other contexts are of no consequence in this Court. I would, however, add to this
point.
22.21. From 1984 to 1988, when Iran carried out its attacks on United States and other
neutral shipping in the Gulf and the United States took action against the oil platforms, Iran was
engaged in a brutal and seemingly endless war with Iraq ¾ a war which, Iran has correctly pointed
out, it did not start. While at war, States occasionally do not observe the same standard of conduct
as at other times. Quite often, for example, States do not reveal their war plans or take
responsibility for military operations where publicity would jeopardize their ability to carry out
similar operations in the future. Denial of responsibility and even deceit are common. Often
ambiguous disclaimers are incongruously mixed with threats of future action. This was, as we
have seen, a favoured practice of Iranian officials, including the Speaker of the Majlis, the
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Ambassador to the United Nations, the Deputy Foreign Minister and others, when addressing the
subject of the attacks on neutral shipping in the Gulf.
22.22. In this Court, however, deception and ambiguity have no place. A litigant here must
abandon entirely these ugly habits of war. Regrettably, Iran has not recognized this. It still, in this
Court, denies responsibility for its actions.
22.23. The Court must, of course, as counsel for Iran has said, protect the integrity of its
proceedings against a State seeking to influence this Court’s judgment because it is powerful. The
Court must also, however ¾ and with no less vigour ¾ protect the integrity of its proceedings
against too casual a respect for truth.
22.24. At the time it was attacking United States and other neutral shipping in the Gulf, Iran
carefully avoided formally taking responsibility for its actions even as it tried to convey the
impression, without being explicit, that it was responsible for the attacks, so as to intimidate States
trading with Saudi Arabia and Kuwait. Iran did not expect, and did not even want, to be believed
when it failed to take responsibility then. Nor, as the Court has seen, did anyone in fact believe that
Iran was not responsible then, and the Court should not believe this now.
22.25. Mr. President, I thank you and the Members of the Court. This concludes the United
States presentation for the opening round.
The PRESIDENT: Thank you, Mr. Taft. Your statement indeed brings to an end the first
round of oral argument by the United States of America. Oral argument in the case will resume
next Friday, 28 February, at 10 a.m. in order for the Islamic Republic of Iran to be heard with
respect to the counter-claim of the United States. The sitting is closed.
The Court rose at 5.50 p.m.
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