Audience publique tenue le mercredi 5 mars 2003, à 15 heures, au Palais de la Paix, sous la présidence de M. Shi, président

CR 2003/18
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2003
Public sitting
held on Wednesday 5 March 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 5 mars 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. The sitting is open and I first give the floor to
Mr. Mathias.
Mr. MATHIAS: Thank you, Mr. President.
26. IRAN’S CLAIM SHOULD BE REJECTED BECAUSE OF IRAN’S VIOLATIONS OF ITS
RECIPROCAL OBLIGATIONS, BECAUSE THE UNITED STATES MEASURES WERE
A CONSEQUENCE OF ITS OWN UNLAWFUL ACTS, AND BECAUSE IT
ARISES OUT OF IRAN’S MANIFESTLY WRONGFUL CONDUCT
26.1. Mr. President, Members of the Court, during the next 20 minutes I shall respond to the
points made by counsel for Iran in respect of the United States argument that the application of
fundamental principles of international law to Iran’s own conduct precludes Iran from invoking the
1955 Treaty and maintaining its claim against the United States. We have asked the Court to
accept our argument for three reasons: because of the application of the principle of reciprocity;
because United States measures were a consequence of Iran’s own breach; and because Iran’s
claim arises out of its own manifestly unlawful conduct. I shall first make some general
observations that apply equally to all three of these propositions and then will deal very briefly with
each of them separately.
26.2. Counsel for Iran suggested that there was some inconsistency between the position of
the United States concerning the application of general international law in the context of Iran’s
ability to invoke the 1955 Treaty, on the one hand, and the United States position that Article XX,
paragraph 1 (d), of the 1955 Treaty should be read according to its terms and not rewritten to
incorporate provisions of general international law, on the other hand (CR 2003/16, pp. 11-12,
para. 4). Frankly, this observation seemed to have been prompted by a desire more to score some
rhetorical points than to illuminate the issue before the Court. After all, counsel for Iran then
launched into the statement that the United States position was that “it is general international law
for others. The United States benefits from the exception, the rest of the world has to comply with
the rule.” (CR 2003/16, p. 12, para. 5.)
26.3. I suggest that when the Court examines this question, it will not find any “formal
incoherence” in the United States position (CR 2003/16, p. 12, para. 5). The rule is the same for
everyone: questions arising under general international law are to be decided in accordance with
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general international law, no matter who raises them. The impact of Iran’s own conduct on its
ability to invoke the 1955 Treaty and maintain its claim in the Court is a question arising under
general international law. The Court can be expected to consider the relevant fundamental
principles of international law in determining whether Iran’s conduct precludes it from invoking
the Treaty. The proper method of interpretation of Article XX, paragraph 1 (d), or any other
provision of the Treaty is also a question arising under international law, and the Court can be
expected to apply the relevant rules of interpretation in making its interpretation. But it does not
follow from any of the foregoing propositions that questions concerning the substantive scope of a
specific treaty provision are to be answered by simply inserting into that treaty provision the corpus
of general international law. Thus it does not follow that the Court must interpret Article XX in the
particular way that counsel for Iran suggests, as incorporating substantive provisions derived from
Article 51 of the United Nations Charter or from general international law. Such an interpretation
would, in fact, not conform to the relevant international law rules governing the interpretation of
treaties, pursuant to which the Court must give meaning to the terms actually used in the Treaty and
not replace those terms with words that do not appear in the Treaty. In short, the Court may use
general international law to determine whether the Treaty may be invoked, but once invoked, it
must use the Treaty itself to determine the existence of a breach.
26.4. Let me turn to the issue at hand. The United States argues that the consequence of
Iran’s own wrongful conduct is that Iran may not invoke the 1955 Treaty. The starting point is
Judge Hudson’s opinion in the River Meuse case (Diversion of Water from the Meuse, Judgment,
1937, P.C.I.J., Series A/B, No. 70, pp. 73-80). The United States agrees with Judge Hudson that
the principles that it is asserting here are ones to which the Court should give “very sparing
application” (ibid., p. 77). Only in an exceptional case should the Court decide that a principle of
“obvious fairness” (ibid.) requires that the Applicant’s own conduct precludes its claim. The
United States submits that this case meets that test. The Court could specifically address the
exceptional character of its decision should it apply these principles in the case.
26.5. Counsel for Iran argues, in essence, that whatever may be the case generally with
respect to the three propositions asserted by the United States, they cannot be applied in the context
of the use of force (CR 2003/16, p. 21, para. 7; p. 23, para. 12; p. 25, para. 19). Such an
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application would, he suggested, undermine the foundation of contemporary international law
(ibid., para. 19), and the principal judicial organ of the United Nations should have no part in that.
26.6. As an initial matter, to be clear, a dismissal of Iran’s claim on the basis of its own
conduct would not constitute a finding by the Court with respect to the lawfulness of the United
States measures that Iran complains of. The Court’s decision would be limited to certain findings
about Iran’s conduct and a dismissal of the claim on the basis of that conduct.
26.7. Moreover, however, in the specific circumstances of the case before you, a decision on
the basis urged by the United States would uphold the foundation of contemporary international
law, and a decision on the grounds urged by Iran would undermine it. The Court has before it the
conduct of both Parties, including the use of force by both Parties. The United States submits that
the Court should find that the United States measures against the platforms were the consequence
of Iran’s own unlawful uses of force, which were unlawful both under the 1955 Treaty and its other
international obligations. Should the Court make such a finding, we submit that appropriate legal
consequences should be attached to that finding. To do otherwise would be, in effect, to give a
“free pass” to Iran for its unlawful attacks against United States shipping and a United States naval
vessel, as well as its attacks on other neutral shipping. This could be seen more generally as a
“blank cheque” for breaching States, and a signal that their conduct is of no consequence to the
Court so long as they are the first to arrive with an application at the Registry.
26.8. The approach we propose would need to be carefully circumscribed. The case before
you is not a case in which one State used force following a non-forcible breach by the other State.
This is also not a case in which a trivial use of force by one State was followed by an excessive use
of force by the other. In such cases, it may not be appropriate for the Court to apply the principles
the application of which we are urging; those cases are for another day. The Court can make these
limitations clear in its judgment. But the Court should not disregard sustained and serious
violations of the laws relating to the use of force by an applicant State.
26.9. Counsel for Iran wants the Court to test the principles cited by the United States by the
standards of different principles on which we have not relied (CR 2003/16, pp. 20-23). The Court
should see past this tactic. Counsel for Iran notes that the United States measures against the
platforms cannot be regarded as countermeasures within the meaning of this Court’s decisions or
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the International Law Commission’s Articles on State Responsibility (ibid., pp. 22-23, paras. 9-12).
The United States has not suggested that its actions constitute countermeasures. Counsel for Iran
discussed the application of the exception of non-performance ¾ and, presumably, the principle of
reciprocity generally, although he did not say so ¾ solely in the context of the suspension or
termination of a treaty under the law of treaties (ibid., p. 21, para. 7), though the United States has
not sought to suspend or terminate the Treaty at issue. Therefore, neither the countermeasures
régime nor the law of treaties régime has any applicability here. In particular, Iran has not argued
or shown that either the countermeasures régime or the law of treaties régime limits the Court’s
ability in this case to apply the fundamental principles of international law in the way that the
United States is urging and to decide that Iran may not invoke the 1955 Treaty because of its own
conduct. There is no such limitation found in those régimes.
26.10. Iran has argued that any Iranian responsibility for its wrongful acts can be addressed
in the context of the United States counter-claim and that consequences should not be attached to
those acts in the context of its own claim (Reply and Defence to Counter-Claim of Iran,
pp. 183-184). While some of the facts supporting our arguments in this context are the same facts
that support the counter-claim, others are different. For example, Iran’s manifestly unlawful
mining of shipping lanes in international waters of the Gulf as it affected non-United States
shipping would not be a basis for United States recovery in the counter-claim, but it is an aspect of
Iran’s conduct that the Court should consider in deciding whether Iran may invoke the 1955 Treaty.
26.11. In any event, the issues of recovery by Iran on its own claim and its defences with
respect to the counter-claim are jurisprudentially distinct. If, as we believe, Iran may not prevail on
its own claim by reason of the application of principles of “obvious fairness”, to use
Judge Hudson’s phrase, these principles would not cease to apply because Iran’s conduct is also the
subject of a counter-claim.
26.12. Counsel for Iran returned on Monday to his point that none of the propositions that we
are advancing, or the fundamental principles on which they are based, are reflected in the
International Law Commission’s Articles on State Responsibility as circumstances precluding
wrongfulness. He said that the only “trace” of the “clean hands” doctrine in the Articles could be
found in Article 39, which deals with “Contribution to the Injury” (CR 2003/16, p. 25, para. 17).
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On this basis he took issue with the argument of the United States that general principles which
“are not specific circumstances precluding wrongfulness” can “generate consequences”, including
the consequence that a State should have its claim denied on the basis of its own conduct (see
Commentaries, Chap. V). If I understood correctly, counsel for Iran would limit such
consequences to the determination of reparation due. With respect, this limitation on the nature of
the consequences that can be generated does not appear in the Commentaries. In addition, the
placement of the relevant passage of the Commentaries which is in Part One, Chapter V, which
deals with Circumstances Precluding Wrongfulness, rather than in Part Two, Chapter II, dealing
with Reparations for Injury, suggests that no such limitation was intended by the Commission. In
any case, to be clear, the United States is not asking the Court to apply these principles as
circumstances precluding the wrongfulness of the United States actions in this case; our point is
that the Court should dismiss Iran’s claim on the basis of its own conduct, without more.
26.13. Mr. President, Members of the Court, each of the principles ¾ reciprocity, the
exception for consequential acts, the equitable principles that we are discussing under the heading
of “clean hands” ¾ these are general principles that are “capable of generating consequences” with
respect to the ability of an applicant to maintain a claim before the Court. They are central to the
Court’s consideration of Iran’s claim and they should not be relegated to a reparations proceeding.
26.14. I now turn briefly to each of the three related but independent propositions of the
United States by virtue of which Iran’s claim should be denied as a consequence of its own
unlawful conduct under the Treaty and more generally.
26.15. The first United States proposition is that Iran’s claim should be denied because Iran
breached its reciprocal obligations under the 1955 Treaty. In the first round, I cited Fitzmaurice,
who wrote that “the failure of one State to perform its international obligations in a particular
respect will . . . disentitle that State from objecting to . . . corresponding non-performance”
(Yearbook of the International Law Commission, A/CN.4/Ser.A/1959/ADD.1, 1959, Vol. II, p. 70,
“Article 20. Conditions implied in the case of all treaties: condition of reciprocity or continued
performance by the other party or parties”; emphasis in original). This consequence, identified by
Fitzmaurice, is, of course, the very consequence that we are urging the Court to adopt in this case.
Counsel for Iran did not discuss Fitzmaurice’s specific conclusion on this point of law.
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26.16. Let us turn to the second principle: that Iran should not be permitted to prevail on a
claim based on United States conduct that was a consequence of Iran’s own breaches of the Treaty
and otherwise wrongful conduct. Counsel for Iran made two points with respect to this principle.
First, he noted that the United States measures against the platforms, because they involved the use
of force, did not constitute countermeasures and should not be exonerated by the Court as such
(CR 2003/16, p. 23, para. 12). I dealt with that argument a few moments ago. Second, he noted
that, if Iran acted wrongfully, which he said in making this argument he did not accept, the Court
could assess the “independently unlawful” (ibid., p. 23, para. 13) conduct of both sides, along the
lines of its decision in the Gabèíkovo-Nagymaros Project (Hungary/Slovakia) case, (Judgment,
I.C.J. Reports 1997). But, Members of the Court, neither of the parties in the Gabèíkovo case had
engaged in the kind of manifestly unlawful conduct that Iran has engaged in with respect to this
claim. The Court decided that it was appropriate to apply the Gabèíkovo model, where both parties
had engaged in wrongful conduct under the treaty at issue in that case. If one party had attacked
the vessels of the other on the Danube, the Court might have come to a different conclusion.
26.17. Counsel for Iran also referred to but did not discuss at any length the decision of the
Permanent Court in the Factory at Chorzów case (Jurisdiction, Judgment No. 8, 1927, P.C.I.J.,
Series A, No. 9), to which I referred last week. As I noted at that time, the decision of the
Permanent Court in that case was that Poland could not “avail itself” of the non-compliance of the
factory owners with the procedures that were to have been established under the 1922 Geneva
Convention but that Poland had not implemented (ibid., p. 31). In the same sense, the United
States submits, Iran “cannot avail itself” in this Court of the alleged United States violations of its
obligations under the 1955 Treaty. Neither of counsel for Iran’s observations addressed this point.
26.18. We turn now to the third principle: that Iran’s manifestly unlawful conduct with
respect to the subject-matter of the claim should preclude its recovery. Counsel for Iran said that
this formulation of the principle “begged the question” because it assumed the unlawfulness of
Iran’s conduct (CR 2003/16, p. 24, para. 16). But Iran’s conduct is before this Court. If the Court
determines that Iran launched unlawful mine, missile and other attacks on neutral shipping in the
international waters of the Gulf and that the United States measures of which Iran complains were a
result of those attacks, then it should, we submit, attach legal consequences to those findings in the
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context of Iran’s own claim. Counsel for Iran would limit those consequences, if any, to the
reparations stage, for consideration consistent with Article 39 of the Draft Articles on State
Responsibility (ibid., p. 25, para. 17). The United States submits, however, that, in light of the
centrality of Iran’s wrongful conduct to its claim, the Court should determine that Iran may not
invoke the Treaty.
26.19. For the Court to act as the United States urges would, far from undermining the
contemporary international legal foundation, specifically confirm the continuing vitality of these
principles ¾ such as reciprocity and ex injuria jus non oritur. For the Court to decline to apply
these principles, as Iran suggests, on the other hand, would cast doubt on the continuing vitality of
these fundamentally just principles. If the Court does not rely on the fundamental principle of
reciprocity here, where Iran’s interference with freedom of commerce and navigation is manifest,
in what case would it be appropriate for the Court to apply that principle? If the Court does not
decide here that a State cannot prevail on a claim that results from its own wrongful acts, in
circumstances in which the United States made a contemporaneous report to the Security Council
which documented that United States measures were the result of Iran’s unlawful attacks on United
States vessels, in what case would the Court apply that principle? The United States asks the Court
to recall the often-quoted words of Judge Anzilotti in his dissenting opinion in the River Meuse
case, writing about the inadimplenti principle: “I am convinced that the principle underlying this
submission . . . is so just, so equitable, so universally recognized, that it must be applied in
international relations also.” (Op. cit., p. 50.)
26.20. Mr. President, Members of the Court, the three propositions that I have discussed
would each independently support a decision on behalf of the United States in this proceeding. On
the facts of this case, they are all applicable and mutually reinforcing, together providing a
compelling case for their application. A decision to apply them here and dismiss Iran’s claim as a
consequence of its own conduct would be a fair result in the specific circumstances of this case. It
would, moreover, confirm the continued force of these fundamental principles of justice in the
international legal system. In any case, the United States submits that justice requires that the
Court, in assessing Iran’s claim, attach appropriate legal consequences to Iran’s own unlawful
conduct.
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26.21. I thank the Members of the Court for their attention. Mr. President, I ask that you
now call on Professor Weil.
The PRESIDENT: Thank you, Mr. Mathias. I now give the floor to Professor Weil.
M. WEIL :
27. DUPLIQUE
27.1. Monsieur le président, Madame et Messieurs les juges, à écouter les professeurs
Crawford et Pellet on aurait pu croire qu’ils s’attaquaient à des plaidoiries américaines qui avaient
fait l’apologie du recours à la force et qui avaient revendiqué pour les Etats-Unis, en tant que world
policeman (gendarme du monde), (c’est le titre que le professeur Crawford a donné à sa plaidoirie)
un droit discrétionnaire de violer à leur convenance les règles les plus fondamentales du droit
international contemporain. Sans doute, le professeur Pellet a-t-il déclaré que «l’Iran ne vous
demande pas de juger que les Etats-Unis ont utilisé la force armée contrairement à la Charte et aux
principes généraux du droit international» mais seulement qu’«ils ont violé l’article X,
paragraphe 1, du traité» de 1955 (CR 2003/16, p. 32, par. 39). Sans doute le professeur Crawford
a-t-il de son côté déclaré que l’insistance mise dans les écrits de l’Iran sur le droit international
général et la Charte appartenait au passé et a-t-il confirmé lui aussi que l’Iran fondait sa demande
exclusivement sur l’article X (CR 2003/14, p. 46, par. 5). Mais ces moments de lucidité ont été
fugaces, car tout au long de ce second tour des plaidoiries iraniennes les conseils de l’Iran n’ont
cessé d’accuser, d’accuser encore et d’accuser toujours les Etats-Unis d’avoir recouru à la force au
mépris des règles les mieux établies du droit international contemporain.
27.2. C’est dans cette perspective que nous avons entendu le professeur Pellet présenter les
actions américaines comme des «actes de «justicier» auto-proclamé» (CR 2003/16, p. 26, par. 22).
C’est dans cette perspective encore que nous avons entendu nos adversaires reprendre le thème de
l’identification des mesures nécessaires à la protection des intérêts essentiels de sécurité de
l’article XX du traité de 1955 avec la légitime défense de l’article 51 de la Charte : «since the
destruction of the platforms obviously could not be justified as measure of self-defence . . ., it
cannot be justified under paragraph 1 (d) either» (CR 2003/16, p. 11, par. 2). C’est dans cette
perspective aussi que le professeur Crawford a affirmé que le traité d’amitié n’a pas pu autoriser ou
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légitimer des comportements violant des normes impératives du droit international telle celle qui
prohibe l’usage de la force : «the Treaty of Amity», a-t-il dit, «cannot have authorized or
legitimized, as between the United States and Iran, conduct violative of a peremptory norm, such as
that prohibiting the use of force . . .» (CR 2003/16, p. 13, par. 7). Mais où donc, Monsieur le
président, où donc avons-nous soutenu pareille thèse ?
27.3. Car c’est bien là le thème majeur ¾ pour ne pas dire le thème unique ¾ de nos
adversaires au cours de ce second tour : les Etats-Unis s’appuient sur l’article XX du traité de 1955,
ont dit et redit les conseils de l’Iran, pour s’octroyer le droit de recourir à la force en toutes
circonstances s’ils estiment que cela est nécessaire à la protection de leurs intérêts essentiels en
matière de sécurité. Les conseils de l’Iran ont inlassablement repris ce thème, qui se trouvait déjà
longuement développé dans les écrits iraniens et que j’ai dénoncé dans ma précédente plaidoirie
comme un «total travestissement», une «complète dénaturation de la thèse des Etats-Unis»
(CR 2003/11, p. 21, par. 13.21-13.22). Je croyais pourtant avoir été clair : les Etats-Unis n’ont
jamais soutenu, et ne soutiennent pas, que le traité de 1955 les autorise à violer les obligations
nées de la Charte et du droit international général. Ce que les Etats-Unis soutiennent, c’est que la
compétence de la Cour se limite aux violations des dispositions du traité. Le fait que ce traité
n’interdit pas certains actes n’implique pas que ces actes sont autorisés par le droit international
général; il signifie que ces actes ne violent pas les dispositions expresses du traité et que les
différends nés d’un tel comportement ne relèvent pas de la compétence de la Cour sur la base de
l’article XXI du traité. Pour me conformer à votre souhait, Monsieur le président, je ne m’étendrai
pas davantage sur ce point, que j’ai amplement développé au cours du premier tour des plaidoiries.
27.4. C’est également pour me conformer à votre souhait, Monsieur le président, que je ne
répéterai pas l’analyse des rapports entre la légitime défense et les mesures nécessaires à la
protection des intérêts essentiels en matière de sécurité. Il aura fallu ce deuxième tour des
plaidoiries pour voir la partie adverse faire enfin une discrète mention ¾ une mention très
discrète ¾ du passage capital de l’arrêt Nicaragua qui analyse le concept de mesures nécessaires à
la protection des intérêts essentiels en matière de sécurité comme «débordant
certainement» ¾ «certainly extends beyond» ¾ celui de légitime défense (CR 2003/16, p. 14,
par. 9). Sur ce dictum, le conseil de l’Iran a glissé rapidement ¾ il a glissé «comme chat sur
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braise», pour reprendre une expression favorite de Roberto Ago. Mieux encore : ce dictum, le
conseil de l’Iran a essayé de le minimiser, pour ne pas dire le vider de son contenu, en affirmant
que, selon lui, la légitime défense vient en premier, et les mesures nécessaires à la protection des
intérêts essentiels en second («self-defence first, paragraph 1 (d) second») (ibid.). La tentative de
priver de toute autonomie la disposition de l’article XX du traité en l’absorbant purement et
simplement dans la règle de l’article 51 de la Charte gouvernant la légitime défense a une fois de
plus constitué le leitmotiv de nos adversaires ¾ à tel point que le professeur Bothe n’a pas hésité à
parler de «the real issue in this case : the law of self-defence» (CR 2003/15, p. 55, par. 6).
27.5. C’est toujours pour me conformer à votre souhait, Monsieur le président, que je ne
reviendrai pas non plus sur la confusion systématiquement entretenue par nos adversaires entre le
fond du droit et la compétence de la Cour. Ce n’est pas parce que la Cour n’est pas compétente
pour se prononcer sur la licéité internationale d’un acte ou d’un comportement que cet acte ou ce
comportement serait nécessairement licite. Contrairement à ce que nos adversaires on tenté de
faire croire, nous n’avons jamais, jamais, jamais, analysé l’article XX du traité comme «une sorte
de «boîte noire», comme a dit le professeur Pellet, mettant l’application du traité «à l’abri» des
règles de droit international général» et comme autorisant le recours à la force (CR 2003/16, p. 31,
par. 36). C’est là, une nouvelle fois, un complet travestissement de notre thèse : je me permets de
renvoyer la Cour à ce sujet aux paragraphes 13.15 à 13.17 de mon intervention du mardi 25 février
(CR 2003/11, p. 18-19).
27.6. Voilà, Monsieur le président, pour la tentative de l’Iran de faire glisser le débat du plan
des mesures nécessaires de l’article XX du traité vers celui de la légitime défense de l’article 51 de
la Charte. Probablement l’Iran espère-t-il avoir plus de chance de gagner la bienveillance de la
Cour en se plaçant sur le terrain du recours à la force et de la légitime défense plutôt que sur celui
de l’article XX du traité...
27.7. Mais l’Iran est allé plus loin. Dans ses efforts pour escamoter la discussion autour de
cet article XX qui le gêne parce qu’il légitime de toute évidence les actions américaines, le conseil
de l’Iran est allé jusqu’à faire disparaître cette disposition d’un coup de baguette magique en
prétendant qu’elle n’a aucune pertinence dans notre affaire. Ce n’est pas sans surprise, je dois
l’avouer, que nous avons entendu le professeur Crawford affirmer que la partie de l’article XX qui
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vise les mesures nécessaires à la protection des intérêts essentiels en matière de sécurité n’intéresse
pas les rapports internationaux. C’est la première partie de ce paragraphe 1 d) de l’article XX,
a-t-il soutenu, qui seule concerne les rapports internationaux, c’est-à-dire la disposition qui déclare
que le traité ne fera pas obstacle aux mesures «nécessaires à l’exécution des obligations de l’une ou
l’autre des Hautes Parties contractantes relatives au maintien ou au rétablissement de la paix et de
la sécurité internationales». Quel sort réserve alors le professeur Crawford à la seconde partie de
cette disposition, celle dont nous avons tant parlé ici, celle relative aux mesures nécessaires à la
protection des intérêts essentiels en matière de sécurité ? Eh bien, il l’expulse tout simplement hors
de notre problème en soutenant qu’elle concerne la sécurité intérieure des parties. Voici ce qu’a dit
le professeur Crawford :
«It is one thing for a State to determine what interests are essential in relation
to its own internal affairs, its own internal security. It is quite another for a State to
determine the scope of necessity in international relations . . .» (CR 2003/8, p. 15,
par. 27.)
C’est la première partie du paragraphe 1 d) qui, à en croire le professeur Crawford, exclut
l’illicéité d’une conduite et fournit à l’Etat une possible défense de fond. Quant à la seconde partie
de ce paragraphe 1 d) ¾ les sept derniers mots, a-t-il affirmé ¾ elle ne concerne pas au premier
chef la paix et la sécurité internationales :
«As to the second part of the paragraph ¾ the last seven words ¾ the primary
focus is on the application of measures concerning internal security ¾ as compared
to the first part, which is concerned with international peace and security and has no
relevance to the facts of the present case.» (Loc. cit., par. 28.)
Faut-il que nos adversaires aient peur de l’article XX pour tenter de lui échapper par de tels
arguments ! Comment imaginer, comment imaginer un instant, que les parties au traité de 1955, de
même que les nombreux gouvernements signataires de traités qui comportent une clause identique
ou analogue à celle de notre article XX, aient inséré dans un traité international une clause régissant
leur sécurité intérieure ? Lorsque la Cour a analysé, dans les paragraphes 223 et 224 de son arrêt
Nicaragua de 1986, une clause du traité entre les Etats-Unis et le Nicaragua identique à la nôtre,
elle n’a pas eu un mot, pas le moindre mot qui puisse donner à penser qu’à ses yeux le
paragraphe 1 d) de l’article XX comporterait deux dispositions de sens et de portée radicalement
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différents : l’une intéressant les rapports internationaux et le droit international, l’autre intéressant
la sécurité interne et le droit interne.
27.8. Mais, Monsieur le président, la thèse de l’Iran n’est pas seulement invraisemblable :
elle est aussi contradictoire. Comment la partie adverse ne se rend-elle pas compte qu’elle ne peut
pas soutenir que la deuxième partie de l’article XX concerne la sécurité intérieure et soutenir en
même temps ¾ dans le même souffle, allais-je dire ¾ qu’elle vise des mesures de légitime
défense, une institution typiquement de droit international et qui se situe exclusivement sur le plan
des rapports interétatiques (CR 2003/8, p. 16, par. 29, 32, 33) ? Mesures purement internes et
mesures de légitime défense internationale : les mesures de l’article XX ne peuvent pas être l’un et
l’autre à la fois. Bref, nos adversaires veulent bien lire l’article XX de mille manières différentes
mais ils ne veulent surtout pas le lire tel qu’il est écrit ! L’article XX ne parle ni de légitime
défense ni de mesures internes de sécurité, et la Cour n’acceptera pas d’en dénaturer le sens. Le
professeur Crawford m’a reproché d’avoir ignoré son argumentation sur ce point lors de ma
première plaidoirie (CR 2003/16, p. 16, par. 15). Si je n’en ai pas parlé, c’était parce que je voyais
dans sa remarque ce que sir Gerald Fitzmaurice a appelé un jour ¾ en français ¾ un «argument de
plaidoirie», c’est-à-dire un argument qui pouvait être négligé.
27.9. Monsieur le président, tout au long de la procédure orale, la Partie iranienne a tenté,
comme elle l’avait déjà fait lors de la procédure écrite, de déplacer le problème en demandant à la
Cour de répondre à des questions qui ne se posent pas de préférence aux questions qui se posent.
Les questions qui se posent, ce sont, comme la Cour l’a décidé avec force de res judicata en 1996,
celles de l’article X et celle de l’article XX. Sur les rapports entre ces deux dispositions nos
adversaires sont restés aussi discrets pendant le second tour des plaidoiries orales qu’ils l’ont été
pendant le premier. Sur ce problème je me permets de me référer à ma plaidoirie du 25 février
(CR 2003/11, p. 14 et suiv., par. 13.5 et suiv.). La question qui ne pose pas, c’est celle de la
légitime défense; mais c’est là-dessus que l’Iran insiste et invite la Cour à se prononcer.
27.10. Il me faut dire aussi un mot, Monsieur le président, des objections soulevées par le
professeur Crawford (CR 2003/16, p. 15 et suiv., par. 12 et suiv.) à mes développements relatifs à
l’étendue du contrôle judiciaire (CR 2003/12, p. 28 et suiv., par. 17.40 et suiv.). Mon collègue
soutient qu’il n’existe aucune marge d’appréciation au profit des Etats parties au traité de 1955.
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Parler d’une marge d’appréciation, soutient-il, favoriserait les Etats les plus puissants et créerait
une présomption de légalité du recours unilatéral à la force.
27.11. Pour faire justice de cette critique, j’observerai simplement que refuser toute marge
d’appréciation priverait la disposition de l’article XX de tout effet utile et mettrait ainsi en danger
l’équilibre établi par le traité. C’est donc à juste titre que le professeur Schachter a écrit, dans
l’article que j’ai déjà cité, que dans l’application des mesures intéressant la sécurité, l’Etat intéressé
doit posséder une «very wide margin of appreciation» (Schachter, International Law in Theory and
Practice, 1991, p. 221-222). A quoi s’ajoute ¾ et cela est décisif ¾ que lorsque dans l’affaire
Nicaragua la Cour a, comme je l’ai rappelé dans ma précédente intervention, délimité avec soin
l’étendue et les contours de son contrôle, elle a pris position, de manière explicite, en faveur de
l’existence d’une marge de pouvoir discrétionnaire (CR 2003/12, p. 29, par. 17.43 et suiv.).
27.12. Monsieur le président, pour terminer ces brèves observations, je voudrais faire
remarquer que, mises à part les quelques questions que je viens d’évoquer, nos adversaires n’ont
pas apporté une véritable contradiction aux analyses auxquelles j’ai procédé lors du premier tour de
la procédure orale (CR 2003/11, p. 12 et suiv. et 2003/12, p. 10 et suiv.).
27.13. En conclusion, c’est à juste titre, que les Etats-Unis ont estimé que les mesures
aujourd’hui contestées par l’Iran étaient nécessaires à la protection de leurs intérêts essentiels en
matière de sécurité. C’est ce que le professeur Matheson confirmera dans un instant.
27.14. Au moment de clore mon intervention, permettez-moi, Monsieur le président, de dire
à la Cour combien je me sens honoré d’avoir pu prendre la parole devant elle. Je vous remercie,
Monsieur le président, Madame et Messieurs les juges, de l’attention que vous avez bien voulu me
prêter, et je vous prie, Monsieur le président, de bien vouloir donner la parole au
professeur Matheson.
The PRESIDENT: Thank you, Professor Weil. I now give the floor to Professor Matheson.
Mr. MATHESON:
28. ARTICLE XX AND SELF-DEFENCE
28.1. Mr. President and distinguished Members of the Court, this morning, Mr. Bettauer
addressed the points made by counsel for Iran on disputed questions of fact. Professor Weil has
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just responded to Iran’s points about the conceptual aspects of Article XX. I will now respond to
the Iranian arguments concerning the applicability of Article XX and the right of self-defence to
the facts that we have demonstrated. I do not propose to repeat what we have said in the first
round, but only to address a few of the points made by counsel for Iran that seem to require
additional comment, and to summarize what we see as the overall posture of the case on these
matters.
Article XX
28.2. Let me start with Article XX. There can hardly be any question that the long and
violent Iranian campaign against neutral shipping in the Gulf presented a very serious threat to
essential security interests of the United States, both in the flow of oil and neutral commerce
generally, and in the protection of United States warships, merchant vessels and nationals
particularly. We have explained in some detail the reasons for our contention that the United States
reasonably determined that military action was necessary to protect these essential security
interests, and that it reasonably determined to take such action against the platforms (CR 2003/12,
paras. 18.18-18.40).
28.3. There is no need to repeat all of this. However, some points made during the Iranian
rebuttal argument deserve comment. First, counsel for Iran characterized the United States
position under Article XX as amounting to an assertion of the right “to enforce the alleged
collective interest of neutral States” (CR 2003/16, p. 17), and he objected that the United States
was not entitled to do this. With respect, this characterization of the United States position is
incorrect. It is certainly true that Iranian attacks against other neutral shipping were an important
part of the threat to essential security interests that the United States sought to protect through its
actions against the platforms.
28.4. However, this does not amount to United States enforcement of the rights of others.
Rather, the United States is asserting that its own essential interests were threatened and damaged
by Iranian attacks on other neutral shipping. Specifically, these attacks threatened seriously to
disrupt the flow of oil from the Gulf, which would have had severe effects on the United States
economy and on United States strategic interests, whether the ships attacked were of United States
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nationality or otherwise. These were interests of the United States, and the United States had the
right under Article XX to protect them, even if they coincided with the interests of others, which of
course they did.
28.5. Second, counsel for Iran argued on Monday that the United States position under
Article XX should be disregarded because the real “operative motive” of the United States in acting
against the platforms was allegedly its hostility toward Iran and its desire to assist Iraq
(CR 2003/16, p. 18). With respect, these repeated allegations by Iran, besides being untrue, are
irrelevant to the application of Article XX in the circumstances of this case.
28.6. Our showing of the threats to United States security interests and the necessity of the
United States response stands on its own, and must be evaluated as such for the purposes of this
Treaty. As the Court itself indicated in the Nicaragua case, if a State has a valid legal basis for its
actions, it is irrelevant that it might have had additional political motives, even if those motives
were “more decisive” (Judgment of 27 June 1986, para. 127). In other words, if the prerequisites
of Article XX are otherwise met, then Iran’s allegations that the United States was also motivated
by hostility toward Iran are legally of no consequence. We believe that it is obvious that the United
States did have essential interests in the protection of its ships and nationals from attack, and in the
maintenance of unimpeded commerce and navigation with friendly States in the Gulf, regardless of
its position on the conflict between Iran and Iraq. These interests are valid grounds for the
invocation of Article XX.
28.7. Finally, with respect to the hypothetical applicability of Article XX to the Iranian
actions described in the United States counter-claim, little needs to be said at this point. Iran had
suggested in its pleadings that it might assert that its attacks would have been justified as measures
necessary to protect its essential security interests under Article XX, but counsel for Iran have not
attempted to make this case in the present oral proceedings, and Professor Murphy had previously
shown that there would be absolutely no basis for such an argument (CR 2003/13, pp. 40-42).
Iran’s security interests in no way were threatened by such maritime commerce, and if they had
been threatened in any particular case, Iran had available non-forcible means of dealing with such
threats.
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Self-defence
28.8. Let me next turn to the question of self-defence. Again, we do not believe that the
Court need rule on this question, given the valid basis in Article XX for United States actions. And
I do not in any event propose to repeat what we said in the opening round: only a few additional
points need to be made.
28.9. First, counsel for Iran suggested on Monday that, to sustain an argument of
self-defence, the United States must show both a “forest” and individual “trees” ¾ that is, both that
armed attacks occurred against individual United States targets and that these individual attacks
formed a larger pattern of continuing attack (CR 2003/15, p. 56). In fact, we have shown both the
“forest” and the “trees” in this case, in that the evidence shows that Iran conducted a whole series
of attacks on United States ships and openly announced its intention to do so for the purpose of
driving United States shipping from the Gulf. Nonetheless, it would be sufficient for the purposes
of self-defence to show one or more individual “trees” without necessarily showing the “forest” ¾
that is, to show that Iran conducted armed attacks against one or more United States ships without
necessarily proving some overall continuing pattern (see Rejoinder of the United States,
paras. 5.14-5.15, 5.22, in which the United States argued that an attack on a single merchant ship
may indeed be an armed attack for which the flag State has a right of self-defence). This is
particularly true in the present case, where one of these “trees” was a United States warship and the
others were United States merchant vessels under the protection of United States warships.
Whether you believe that Iran was merely trying to fell individual “trees”, or rather to give the axe
to the entire “forest” ¾ which we have shown to be the case ¾ the right of self-defence still
applies.
28.10. Second, counsel for Iran argued on Monday that the missile attack on the Sea Isle City
could, at best, have only been an attack on Kuwait because it took place while the ship was in
Kuwaiti territorial waters (CR 2003/15, p. 56). But the fact that the ship was in Kuwaiti waters ¾
and therefore that the attack could be seen as an armed attack on Kuwait ¾ does not mean that it
was not an armed attack on the United States as well. For example, it is widely considered that an
armed attack on an embassy is an attack on the State to which that embassy belongs, even though it
is of course located in the territory of another State (e.g., Dinstein, War, Aggression and
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Self-Defence 177; see also Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, para. 57); and the same considerations apply to an attack on a ship in foreign territorial
waters.
28.11. Whatever the rights of a coastal State to exercise jurisdiction over foreign vessels in
its waters, it remains the case that the flag State has a concurrent right to exercise control over its
flag vessels and has every independent interest and right to defend them from attack by a third
State. Surely the right of self-defence should not be dependent on precisely which juridical parts of
the seas a ship happens to be at the time of the attack. And in any event, there is in the present case
no question of any intrusion by the United States into the sovereignty of Kuwait: Kuwait was very
supportive of United States actions, and the United States actions against the platforms did not take
place in the territory or waters of Kuwait or in any way harm Kuwaiti interests. It would be
bizarre, under such circumstances, to deny the United States its inherent right of self-defence
against an attack by Iran simply because Iran chose to conduct its attack while the ship in question
was temporarily in the waters of another State.
28.12. Third, counsel for Iran reiterated on Monday his contention that the laying of
mines ¾ even in international waters ¾ cannot be an armed attack on the flag State of any ship
that may strike one of those mines unless that particular ship ¾ and that particular flag State ¾
were specifically targeted for attack. I have already addressed this issue at length last week
(CR 2003/12, paras. 18.46-18.48); I will not attempt to repeat that argument. We have in fact
shown that Iran specifically targeted United States vessels for such attacks: beyond that I would
only observe at this point that it is simply incredible to think that no State would have a right of
self-defence if such indiscriminate minelaying took place in international waters, that any number
of neutral ships could be damaged or sunk without there ever having been an armed attack on
anyone, and that the flag States of the ships attacked would be limited to diplomatic protest, or to a
futile attempt to clear mines from vast areas of the high seas. This simply cannot be the scope of
the right of self-defence when it comes to such indiscriminate methods of warfare.
28.13. Contrary to the suggestion made by counsel for Iran (CR 2003/15, p. 57), nothing in
the Nicaragua case says anything like this. In that case, the Court was of course not called on to
decide whether the United States had attacked any State other than Nicaragua, but certainly the
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Court did not hold that other States were not the victims of armed attack: and the Court made clear
that it considered the laying of mines in the territorial waters of a State to be unlawful in such
circumstances both with respect to the territorial State and to any other State whose vessels
exercise the right of innocent passage in such waters or enjoy a “right of access to ports”
(Judgment, para. 214).
28.14. Third, counsel for Iran objected on Monday to the analogy I had earlier drawn to the
attacks of 11 September, concerning which I had pointed out that Iran’s view of self-defence, if
applied to those attacks, would mean that the right to take action in self-defence would have ended
once the hijacked aircraft had struck their targets. Counsel argued that the 11 September attacks
were different because the Security Council had in that case determined that the attacks were a
threat to the peace and acknowledged the existence of a right of self-defence (CR 2003/15, p. 16).
But, of course, the right of self-defence is not dependent on acknowledgment by the Security
Council, as Iran well knows; indeed, Iran would never have agreed that it did not have a right of
self-defence against Iraqi attack because the Council had not acknowledged it. And in any event,
as we have shown, the Council did condemn Iranian actions against neutral shipping, did treat them
as “Iranian attacks” and did characterize them as amounting to a threat to the peace.
28.15. But more to the point, the Council’s acknowledgment of the right of self-defence in
the case of 11 September precisely proves the point that in such circumstances the right to act in
self-defence does not necessarily end just because the specific attack in question ends. In fact,
although the two cases of course differed in various respects, the circumstances of 11 September
were in this respect very much the same as in the present case. Al Qaeda had committed a series of
attacks on United States targets and so had Iran; Al Qaeda had made known its intention to
continue these attacks and so had Iran; Al Qaeda had the capability of conducting further attacks
and so had Iran; the likelihood of such further attacks by Al Qaeda posed a serious threat to United
States lives, and the same was true with respect to Iran; measures not involving the use of force
would not have given adequate protection against further Al Qaeda attacks, and the same was true
with respect to Iran; forcible action in self-defence was therefore justified to protect against further
attacks from Al Qaeda, and the same was true with respect to Iran. In every respect relevant to this
case, the situations were essentially identical. And in the case of Al Qaeda, the Security Council
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agreed that the United States was entitled to act in the exercise of self-defence. The same
conclusion would apply in this case.
28.16. Finally, counsel for Iran again argued on Monday that the United States actions
served no legitimate protective purpose because the platforms were not being used for military
functions as alleged by the United States, and consequently that those United States actions met
neither the necessity nor the proportionality tests of the doctrine of self-defence. We have laid out
our evidence on this point at great length, both in this round and previously, and I will not attempt
to repeat that now. I would only make one point.
28.17. Even if Iran suffered significant damage as a result of the United States actions, as
counsel for Iran have repeatedly argued (e.g., CR 2003/15, p. 60), that does not resolve the question
of proportionality. If an installation that normally has a commercial role is used for military
purposes and therefore becomes the object of military action in self-defence, it would not be
unusual for there to be collateral economic damage that, in and of itself, does not serve the
defensive purpose. That fact does not by itself make the action unlawful; only if the damage is
actually disproportionate is this so. In the present case, we have shown not only that the
consequences of the United States actions were not in excess of what was necessary to deter or stop
Iranian attacks, but also that the damage caused by United States actions was not excessive in
relation to the loss of United States life and property that would have resulted if Iran had continued
those attacks.
The overall posture of the case on Article XX and self-defence
28.18. Let me conclude with a brief comment on the overall posture of this case as regards
Article XX and self-defence. It is important to deal with the specific points of fact and law that we
have been discussing. But the Court’s decision on Article XX, and if necessary on the right of
self-defence, depends not merely on the accumulation of these individual points. In the end, the
Court must ultimately decide a more fundamental question: what could the international
community have expected ¾ what could international law have required ¾ the United States to do
when faced with the long and brutal Iranian campaign against United States and other neutral
shipping? The United States had resorted to diplomatic approaches, to the United Nations Security
- 29 -
Council, to defensive military deployments, but the attacks continued. Indeed, Iran began to use
more dangerous and indiscriminate methods of attack, particularly the laying of mines in shipping
channels and the launching of long-range anti-ship missiles. United States warships and merchant
ships, along with their crews, were seriously at risk.
28.19. Under these circumstances, what limits did the 1955 Treaty place on United States
action? Was the United States required under the Treaty to withdraw its shipping from the Gulf
and abandon its vital interests in the flow of oil and commerce in that region ¾ which was Iran’s
announced objective? No ¾ Article XX makes clear that measures necessary to protect such
essential security interests do not violate the Treaty.
28.20. If the United States remained in the Gulf, was it required under the Treaty to abstain
from military action and permit Iranian attacks to continue and escalate, at the cost of seeing its
ships damaged or sunk, and its nationals injured or killed? No ¾ military action is one legitimate
means of protecting a party’s essential security interests and if such action was necessary to protect
these interests, it was excluded from the Treaty; and under the right of self-defence, a State need
not refrain from military action in the event of armed attack to prevent or terminate such attacks
when non-forcible means are inadequate.
28.21. Then if the United States was justified in taking military action, was it required to
limit that action to passive defence of its vessels, hoping that it would somehow be able to put
warships in the path of every mine or missile and that those warships would be so fortunate as to be
able safely to destroy those mines or missiles before they struck their targets? No ¾ a State cannot
possibly be required by the law of self-defence to limit itself to measures that had proven both
ineffective and highly dangerous, as these most certainly had.
28.22. If, then, the United States was justified in taking military action in response against
Iranian forces or facilities that were a significant part of the threat of continuing attack ¾ as were
the Iranian platforms, was it nonetheless required to direct that action only against Iranian targets
that presented greater risks of civilian casualties, or of involvement in the Iran-Iraq conflict, or of
United States casualties, than were presented by action against the platforms? No ¾ certainly the
law of self-defence does not require such a choice.
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28.23. In short, Mr. President, the United States acted as it had to do, and as it was entitled to
do. United States action was consistent with the law of self-defence, but the Court need not rule on
that issue and should rather dispose of the case on the basis of Article XX of the Treaty. Certainly
the Treaty did not require the United States to take alternative courses of action that would have
meant the abandonment of essential United States security interests, or the endangering of United
States ships and nationals, or the acceptance of continuing serious disruption to commerce between
the parties to the Treaty, or the resort to actions that would have caused much greater damage and
involvement in the ongoing Iran-Iraq conflict. On this fundamental level, we firmly believe that
United States actions against the platforms were within Article XX and did not violate the Treaty.
28.24. Mr. President, this concludes my presentation. I now suggest you recognize the
United States Agent, Mr. Taft, to conclude the presentation of the United States.
The PRESIDENT: Thank you, Professor Matheson. I now give the floor to His Excellency
Mr. Taft, the Agent of the United States of America.
Mr. TAFT:
29. CLOSING AND SUBMISSIONS OF THE UNITED STATES
29.1. Thank you, Mr. President.
29.2. Mr. President, Members of the Court. I will summarize the United States position and
conclude our presentation in rebuttal. At the outset, however, I would like to thank you,
Mr. President, and Members of the Court, for your patience and careful attention to all the oral
pleadings over the past weeks. I would also like to thank the members of the Court staff,
particularly the interpreters and those in the Registrar’s office in charge of preparing transcripts of
each day’s proceedings and making arrangements for use of the courtroom. They have really been
terrific; you are lucky to have them and I thank them.
29.3. Let me first summarize the facts that have been established in the record of the case.
29.4. The Court should find that over a period of four years Iran carried out a series of armed
attacks on United States and other neutral shipping in the Gulf. These attacks included the missile
attack on the Sea Isle City and the mine attack on the Samuel B. Roberts. These attacks and others
endangered American lives and caused extensive damage to persons and property. United States
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ships that were not damaged by Iranian attacks were required to adjust sailing routes and schedules
and to incur substantial additional costs. Freedom of commerce and navigation between the United
States and Iran were impeded as a result of these attacks.
29.5. The Court should find that the United Nations, the United States, other international
organizations and other States tried many times to persuade Iran through diplomatic means to stop
its attacks on neutral shipping. Neither these efforts nor the defensive naval operations undertaken
by the United States and other States prior to October 1987 were effective in safeguarding United
States shipping from the Iranian attacks.
29.6. And finally, the Court should find that Iran made use of its oil platforms in identifying
targets, co-ordinating and in several instances launching its attacks on neutral shipping. These
platforms were not, at the time of the United States operations against them, engaged in commerce
between Iran and the United States. The operations against the platforms played an important role
in bringing to an end Iran’s attacks on United States and other neutral shipping, something that
over the course of four years no other steps had been able to do.
29.7. The legal conclusions that follow from these facts may, likewise, be shortly stated.
29.8. Iran’s attacks on United States and other neutral shipping impeded the freedom of
commerce and navigation between Iran and the United States, thus violating Article X,
paragraph 1, of the 1955 Treaty.
29.9. Because Iran’s unlawful acts, including its violation of Article X, paragraph 1, were the
direct cause of and made necessary the United States operations against the oil platforms, Iran is
precluded from challenging those operations under the same provision of the Treaty that it has
violated.
29.10. The United States operations against the oil platforms did not violate Article X,
paragraph 1, of the Treaty because the operations did not impede the freedom of commerce, as
defined by this Court, between the territories of Iran and the United States.
29.11. Iran’s attacks on neutral shipping also threatened essential security interests of the
United States. Because the operations against the oil platforms were measures necessary to protect
United States essential security interests, they are not precluded by the Treaty. They were also
lawful exercises of the United States inherent right to self-defence.
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29.12. As the Court will have seen, the facts in this case are straightforward. They obviously
do not, however, fit in very well with Iran’s legal case. How has Iran attempted to deal with this
problem in presenting its arguments to this Court? Essentially, in three ways. First, as I mentioned
in opening the United States presentation this morning, Iran tries to focus the Court’s attention on
points that ¾ whether true or not ¾ have no legal significance. Second, Iran ignores key facts,
when they undermine its position. Third, when finally brought face to face with facts that
undermine its position, Iran insists that such facts are not proven until all other imaginable
explanations of events are conclusively disproved.
29.13. I will not repeat here the catalogue of irrelevant facts Iran has tried to bring to the
Court’s attention. I reviewed the most important of them this morning.
29.14. Among the key facts Iran ignores are: extensive reports by a wide range of
organizations and governments about Iran’s attacks on United States and other neutral shipping in
the Gulf ¾ there were more than 200 of these; and United States diplomatic efforts to persuade
Iran to stop its attacks ¾ there were five of these in the five months prior to the first operation
against Iran’s oil platforms. Only by ignoring Iran’s attacks and the many efforts to bring them to
an end peacefully can Iran make it appear as if United States essential security interests were in
little danger in the Gulf or that there was no need for the use of force to protect them. Only if these
facts are ignored do United States operations appear as unprovoked actions designed to damage
Iran’s prospects in its war with Iraq. And, so, Iran ignores them.
29.15. There are, however, some difficult facts that Iran cannot ignore. The Iran Ajr was
caught laying mines in the Gulf. Iran’s missiles were seen on their way from the Faw area to hit
the Sea Isle City on the same day as satellite photography shows Iran’s missile launching sites there
to be operational. Iran’s mines ¾ its calling cards ¾ were found laid in fields where several
United States ships hit mines. Documents, eyewitness accounts and the pattern of attacks show
that the oil platforms were used to support Iran’s attacks on United States and other neutral
shipping. Iranian officials have made statements acknowledging responsibility for the attacks and
threatening future attacks. Counsel for Iran, Professor Momtaz, has written that Iran conducted
attacks on neutral shipping. How does Iran deal with these facts?
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29.16. Its preferred approach in these circumstances is twofold. First, it puts its imagination
to work. It fantasizes about other possible explanations for observed events. Some of these
fantasies are truly remarkable. Iran asks the Court to believe the Iran Ajr was transporting mines,
not laying them. The Court has seen the photographs. Iran asks the Court to believe Iraq launched
a missile from a non-existent launch site. Again, the Court has seen the photographs. It asks the
Court to believe that the Norwegian Ambassador files erroneous reports with his Foreign Ministry.
And so forth.
29.17. But Iran is not satisfied with simply putting out implausible scenarios. It next
demands that the United States prove that these scenarios are impossible. And we have done our
best. But, I would remind the Court, the United States has already carried its burden of proof with
regard to the critical facts in the case. The United States is not required, in addition, to prove that
every alternative scenario that Iran can conceive of is impossible. In making its findings the Court
must weigh evidence against evidence, not, as Iran prefers, evidence against speculation.
29.18. Mr. President, Members of the Court, that is what I wanted to say about the facts of
the case, the findings the Court should make, and the manner in which it should reach them. The
United States believes that the Court will readily conclude ¾ what is generally known ¾ that Iran
was responsible for a series of attacks on United States and other neutral shipping in the Gulf and
that the United States used military force to bring these attacks to an end. The Court has heard the
legal arguments applying the language of the Treaty to the facts and it will decide the issues as it
sees best.
29.19. In addition to their legal arguments, however, under the Treaty, both Parties have also
asked the Court to consider how its ruling in this case will be seen as setting standards concerning
when States may resort to the use of force. This is an important point, though we should keep in
mind while thinking about it that the 1955 Treaty is but one component in the system of
international law and certainly not the most significant one when it comes to regulating the use of
force. That is to say, the fact that some uses of force may not be in breach of the 1955 Treaty does
not mean that such uses of force are not subject to other controls, including the actions of the
Security Council, which has continuous responsibility for maintaining peace and security.
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29.20. Iran evidently misses this point, when its counsel darkly warns the Court that finding
that the United States was not precluded by the 1955 Treaty from using force to protect its essential
security interests in the extraordinary circumstances of this case will somehow unleash the United
States to act as a global policeman. Obviously, the 1955 Treaty authorizes nothing of this kind. In
fact, the Treaty does not “authorize” the use of force at all. What it does do is say that measures to
protect essential security interests, not excluding measures involving the use of force when
necessary, are not precluded by the terms of this single Treaty. If the Treaty did not exist ¾ and
the number of States that do not have such bilateral treaties between them is legion ¾ the situation
would be the same.
29.21. Yet, we may wish to consider Iran’s vision just a bit further. Of course, no one wants
a world with a self-appointed policeman operating free from the restraints of international law. No
one wants to be such a policeman: and there is no such policeman. But no one wants a world that
is safe for outlaws either, a world where States are unable to protect their essential security interests
against attacks by other States. Iran conducted just such attacks over a period of four years and
now it asks this Court to say that the 1955 Treaty prevented the United States from protecting itself.
There is no reason to believe that the Parties to the Treaty intended to allow such a result. The
language of Article XX indicates that they took care not to do so.
29.22. Mr. President, Members of the Court, despite all that you have heard about Iran’s war
with Iraq, Iran’s rights of self-defence in that war, and Iraq’s activities against neutral shipping in
the Gulf, the claims that you actually have before you are limited to the 1955 Treaty.
29.23. For Iran to prevail on its own claim under the Treaty, the Court must determine three
things:
¾ First, that Iran’s own unlawful conduct, including under the 1955 Treaty, which made
necessary the United States measures at issue, does not preclude Iran from invoking the Treaty
and maintaining its claim in the Court. The United States has demonstrated that fundamental
principles such as reciprocity and the principle of ex injuria jus non oritur do in fact preclude
Iran’s claim in the exceptional circumstances of this case. Iran has argued that for the Court to
adopt this approach would undermine other international legal régimes, such as those for
countermeasures and the use of force, but has not dealt squarely with the application of these
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principles to Iran’s conduct in the manner urged by the United States here. The Court should
decide that it can and should apply these principles of fundamental fairness in the
circumstances before it.
¾ Second, the Court would have to determine that Iran has proven that the United States
interfered with freedom of commerce and navigation between the territories of the Parties
within the meaning of the 1955 Treaty. Iran has failed to carry its burden on this issue. To
prevail, Iran should have proven that the crude oil produced by the platforms was a product
capable of being exported, and that the United States actions destroyed the crude oil or the
means for its transport or storage. Further, Iran should have proven that at the time of the
United States actions, the oil platforms were actually engaged in exporting crude oil to the
United States ¾ not to third States ¾ such that those actions impeded the freedom of Iran to
engage in such commerce. Iran has not proven either of these points and therefore its claim
should be dismissed on this ground.
¾ Third and finally, to find for Iran on its claim, the Court would have to determine that the
measures that the United States undertook against the platforms were not necessary to protect
its essential security interests. For the Court to reach such a conclusion in this case would be
manifestly wrong. The United States has shown that its vessels were being attacked by Iran
during the period in question and that Iran was conducting attacks against other neutral
shipping that threatened essential United States security interests. The United States has
proved that it pursued all possible means short of the use of force to stop these Iranian attacks
before using force. The United States has proved that Iran was using its oil platforms for
offensive military purposes and that the United States reasonably concluded that its measures
against the platforms would help prevent future Iranian attacks. The United States need not
prove anything more than this under the Treaty. In particular, the Court need not and should
not adopt rarefied academic theories about the self-defence doctrine, for example, to adopt
Iran’s theory that it can lay minefields in international waters with impunity, so long as it acts
indiscriminately.
29.24. Mr. President, Members of the Court, for the reasons stated, the United States submits
that you should deny Iran’s claim.
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29.25. With respect to the United States counter-claim, the Court’s task is even more
straightforward.
29.26. Iran does not appear to have pursued its argument that the conduct of the United
States precludes its action in this Court. In any case, the principles of reciprocity and ex injuria jus
non oritur do not even arguably apply in the context of the United States counter-claim.
29.27. Nor has Iran argued that its attacks on United States vessels were required to protect
its essential security interests. Such an argument would have been, of course, inconsistent with its
refusal to accept responsibility for its actions, although I trust that the Court is under no illusions
about Iran’s responsibility in this regard.
29.28. The only issue with respect to the United States counter-claim, therefore, is whether
the United States has proved that Iran impeded the freedoms of commerce and navigation between
the territories of the two Parties within the meaning of the 1955 Treaty. I will not repeat
Professor Murphy’s discussion of this issue this morning. He showed that there was extensive
commerce and navigation between the two States that Iran’s actions impeded, to the detriment of
the United States and its nationals. The United States submits that it has met its burden of showing
that Iran’s actions violated its obligations under the Treaty.
29.29. Mr. President, Members of the Court, in light of the foregoing, the United States
makes the following submissions:
29.30. The Government of the United States requests the Court to adjudge and declare:
(1) That the United States did not breach its obligations to the Islamic Republic of Iran under
Article X, paragraph 1, of the 1955 Treaty between the United States and Iran; and
(2) That the claims of the Islamic Republic of Iran are accordingly dismissed.
With respect to its counter-claim, the United States requests that the Court adjudge and
declare:
(1) Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with mines and
missiles and otherwise engaging in military actions that were dangerous and detrimental to
commerce and navigation between the territories of the United States and the Islamic Republic
of Iran, the Islamic Republic of Iran breached its obligations to the United States under
Article X, paragraph 1, of the 1955 Treaty; and
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(2) That the Islamic Republic of Iran is accordingly under an obligation to make full reparation to
the United States for its breach of the 1955 Treaty in a form and amount to be determined by
the Court at a subsequent stage of the proceedings.
Mr. President, Members of the Court, that concludes the United States pleadings in this case.
Thank you very much.
The PRESIDENT: Thank you, Mr. Taft. The Court takes note of the final submissions
which you have read on behalf of the United States of America. This brings to an end the second
round of oral argument by the United States. Oral argument in the case will resume next Friday
7 March, from 10 a.m. to 11.30 a.m. in order for the Islamic Republic of Iran to be heard on the
counter-claim of the United States. The sitting is closed.
The Court rose at 4.35 p.m.
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