INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORALARGUMENTS, DOCUMENTS
AERIAL INCIDENT OF 4 SEPTEMBER 1954
(UNITED STATES OF AblERICA v.UNION OF
SOVIET SOCIALLST REPUBLICS) COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
INCIDENT AÉRIEN DU 4 SEPTEMBRE 1954
(ÉTATS-UNIS D'AMÉRIQUE c. UNION DES
RÉPUBLIQUESSOCIALISTES SOVIÉTIQUES) APPLICATION INSTITUTING PROCEEDINGS
AND PLEADINGS
SECTION A.-APPLICATIONINSTITGTING PROCEEDINGS
PREMIÈRE PARTIE
REQUÊTE INTRODUCTIVE D'INSTANCE
ET MÉMOIRES
SECTION A.- REQUETE INTRODUCTIVE D'INSTANCE APPLICATION
INSTITUTING PROCEEDINGS '
THEAGENTOFTHEGOVERNMENTOFTHEUNITED
STATES OF AMERICA TO THE REGISTRAR OF THE
INTERNATIONAL COURT OF JUSTICE
DEPARTMEN TF STATE,
\YASHINGTON. JU~Y 25, 1958.
Sir:
I. This is a written application, in accordance with the Statute
and Rules of the Court, suhmitted hy the Government of the
United States of America instituting proceedings against the
Government of the Union of Soviet Socialist Republics on account
of certainwillful acts committed by military aircraof the Soviet
Government on September 4, 1954,in the international air space
over the Sea of Japan against a United States Navy Pz-V-type
aircraft, commonly known as a Neptune type, and against its
crew:
The subject of the dispute and a succint statement of the facts
and the grounds upon which the claim of the Government of the
United States of America is based are adequately setrth in a note
delivered to the Soviet Government on Octoher 12, 1956. A copy
of the note is attached to this application as an annex. The Soviet
Government has asserted its contentions of fact and of law with
reference to the United States Government's claim in other diplo-
matic correspondence on this subject, most recently in a note of
January ~1,1957, a copy of which is also attached to this application
as an annex.
2. The United States Government notes that the present dispute
concerns matters of the character specified in Article 36)of the
Statute of the Court, including subdivisions(a) through (dj. As
will be seen from the annexes, the legal dispute of the United
States Government with the Soviet Government involves serious
questions of internationallaw. Among them are the validity of
the Soviet Government's claim that it may; under international
law, unilaterallyextend its territorial limits in the international
air space over the waters of the Sea of Japan in excess of three
See PartIV,Correspondence. NI,p. 28, REQURTE
INTRODUCTIVE D'INSTANCE '
L'AGENT DU GOUVERNEMENT
DES ÉTATS-UNIS D'AMÉRIQUE AU GREFFIER
DE LA COUR INTERNATIONALE DE JUSTICE
[Traduction du GreiJe]
DEPARTEMENT D'ÉT~T,
\VASHINGTON. 25 juillet 1958.
Monsieur le Greffier,
I.Le présent doccment est une requète écrite par laquelle le
Gouvernement des Etats-Unis d'Amérique introduit, conformé-
ment au Statut et au Règlement de la Cour, une instance contre
le Gouvernement de l'Union des Républiques socialistes soviétiques,
à raison de certains actes commis volontairement par des avions
militaires du Gouvernement soviétique le 4 septembre 1954, dans
aéri~nint~rnational situé au-dessus de la mer du Japon,
l'espace
contre un appareil de la Marine des États-Unis du type Pz-V,
communément désigné typeNeptune, et contre son équipage.
L'objet du différend et un exposésuccinct des faits et des motifs
sur lesquels se fondela demande du Gouvernement des Etats-Unis
d'Amérique sont énoncés commeil convient dans la note remise au
Gouvernement soviétique le 12 octobre 1956. Copie de cette note
est jointe en annexeàla présente requête. Le Gouvernement sovié-
tique a exposé sesargumentsde fait et de droit au sujet de la récla-
mation du Gouvernement des Etats-Unis dans une autre corres-
pondance diplomatique relative à cette affaire et, tout récemment,
dans une note du 21 janvier 1957 dont copie est également jointe
en annexe à la présente requête.
2. Le Gouvernement des États-Unis constate que le présent
différend porte sur des questions relevandes catégories énoncées
au paragraphe z de l'article 36 du Statut de la Cour, comprenant
les subdivisions) àd). Comme le montrent les annexes, le différend
d'ordre juridique qui sépare le Gouvernement des Etats-Unis
et le Gouvernement soviétique met en jeu d'importantes questions
de droit international. Au nombre de ces dernières figure la vali-
dité de la prétention du Gouvernement soviétique à pouvoir en
droit international étendrunilatéralement ses limites territoriales,
'Voir Quatrième Partie, CorrespondnoI,p. 28.nautical miles from the mean low water mark of the shoreline of
the Soviet-held land masses in this area. In addition there are
involved the scope and application of international obligations
relating to the flight of military aircraft claimed to be intmding
and the interception of such aircraft and attack upon them by
military aircraft of the government making such claim; the nature
of the rights, prerogatives and powers of the United States Govern-
ment to conduct flights of military aircraft in the international
air space over the Sea of Japan; together with other issues of laa
and of fact which, if resolved in favor of the United States Govern-
ment. would urove breaches of international obl-gation bv the
Soviet Govcrnmeiit: and the iiature and extcnt of repar;itiundto be
made by tlicSoviet Governinerit for :dl these breaches.
The United States Government, in filing this application to the
Court, submits to the Court's jurisdiction for the purposes of tbis
case. The Soviet Government appears not to have filed any decla-
ration with the Court thus far, although it was invited to do so by
the United States Government in note 176 of August 19, 1957, a
copy of which is also annexed hereto. The Soviet Government
in a note dated October IO, 1957. which is made an annex to the
present application, rejected the United States Government's
invitation. The Soviet Govemment is, however, qualified to submit
to the jurisdiction of the Court in this matter and may, npon noti-
fication of this application by the Registrar, in accordance with the
Rules of the Court. take the necessary steps to enable the Court's
jurisdiction over both parties to the dispute to be confirmed.
The United States Gqvernment thus founds the jurisdiction
of this Court on the foregoing considerations and on Article 36 (1)
of the Statute.
3. The claim of the Government of the United States of Anierica
is, briefly, that the Government of the Union of Soviet Socialist
Republics, on September 4, 1954, willfuiiy and unlawfully caused
fighter aircraft to penetrate into the international air space over
the Sea of Japan and without any provocation to attack and cause
the destruction of a Neptune type aircraft of the United States
Naval Air Arm, the11lawfully and peacefully flying in that air
space; that, of the crew, one member was trapped in the wreckage
of the Neptune and lost his life, and ail the others,though ultimately
rescued by search aircraft of the United States Government,
suffered injuries and shock. The damages suffered by the United
States Govemment for which the Soviet Government is liable are
specified in the annexed note. REQU~TE rNTRODUCTIVfi D'INSTANCE (25 VI158) 9
dans l'espace aérien international situé au-dessus des eaux de la
mer du Japon, au delà de trois milles marins à partir de la laisse
moyenne de basse mer de la ligne de côte des terres sous occupation
soviétique dans cette zone. Sont en outre mises en jeu la portée\
et l'application des obligations internationales relativean vol des
avions militaires accusés d'intrusion et à l'interception et- à l'at-
taque de ces appareils par l'aviation militaire du Gouvernement
les accusant d'intrusion; la nature des droits, prérogatives et
pouvoirs du Gouvernement des États-Unis en vue de faire voler des
avions militaires dans l'espace aérieninternational situé au-dessus
de la mer du Japon; ainsi que dyautres points.de droit et de fait
qui, s'ils étaient tranchés en faveur du Gouvernement des États-
Unis, établiraient des violations d'engagement international de
la part du Gouvernement soviétique; enfin, la nature et l'étendue
des réparations auxquelles le Gouvernement soviétique serait tenu
à raison de toutes ces infractions.
Le Gouvernement des États-unis, en déposant la présente
requête auprès de la Cour, déclare accepter sa juridiction aux fins
de la présente affaire. II ne semble pas qu'à ce jour le Gouvernement
soviétique ait déposéune déclaration auprès de la Cour, bien qu'il
ait étéinvité à le faire par le Gouvernement des Etats-Unis dans
la note 176 du 19 août 1957 jointe ci-après en annexe. Dans une
note du 10 octobre 1957, également jointe en annexe à la présente
requête,le Gouvernement soviétique a repoussécette suggestion du
Gouvernement des Etats-Unis. Le Gouvernement soviétique est
cependant qualifié pour reconnaître la juridiction de la Cour en
cette affaire, et illui est loisible, lorsque la présente requête lui
sera notifiéepar le Greffier conformément an Règlement de la Cour.
de prendre les dispositions nécessaires afin que soit confirmée la
juridiction de la Cour àl'égard desdeux parties au différend.
Le Gouvernement des États-unis fonde donc la compétence de
la Cour sur les considérations qui précèdent,ainsi quesur l'article6
(1)du Statut.
3. La demande du Gouvernement des États-Unis d'Amérique
peut se résumercomme suit: le 4 septembre 1954. le Gouvernement
de l'Union des Républiques socialistes soviétiques a volontairement
et illicitement envoyé des avions de chasse voler dans l'espace
aérieninternational situé au-dessus de la mer du Japon et attaquer
et détruire sans aucune provocation un appareil de type Neptune
appartenant aux forces aéro-navales des États-Unis, lequel volait
alors d'une manière licite et pacitique dans cet espace aérien;un des
membres de l'équipage, pris dans l'épave du h'eptune, y a trouvé
la mort et tous les autres, bien qu'ils aient finalement étésecourus
par des avions de recherche du Gouvernement des Rtats-Unis.
ont souffert de blessures et de commotions. Les dommages subis
par le Gouvernement des États-Unis et dont le Gouvernement
soviétique est responsable sont indiqués dans la note jointe en
annexe.IO APPLICATION I'JSTITUTING PROCEEDINGS (25 VI158)
In diplomatic correspondence with reference to the matter,
including the Soviet Government's note of January 21, 1957, al1
of which correspondence constitutes negotiations that must now
be determined to have been exhausted, the Soviet Government has
asserted a version of the facts and of the law contrary to that
asserted by the United States Government.
.4 dispute is therefore presented which is appropriate for hearing
and decision by this Court in accordance with the Statute and the
Rnles.
The United States Government. in further pleadings herein,
will more fully set forth the issues of fact and the issues of law in
this dispute. It will request that the Court lind that the Soviet
Government is liable to the United States Government for the
damages caused; that the Court award damages in favor of the
United States Government against the Soviet Government in the
sum of $1,355.650.52 with interest, and such other reparation and
redress as the Court may deem to be fit and proper; and that the
Court make al1 other orders and awards, including au award of
costs, to effectuate its determination.
4. The undersigned has beeii appointed by the Government of
the United States of America as its Agent for the purpose of this
application and al1proceedings thereon.
Very truly yours,
(Signed) Loftus E. BECKER,
The Agent for the Government
of the United States of America.
Annexes :
I. Note from the United States Government to the Soviet
Government of October 12, 1956.
2. Note from the Soviet Government to the United States
Government of January 21,1957.
3. Note from the United States Government to the Soviet
Government of Angust 19, 1957.
4. Note from the Soviet Government to the United States
Government of October IO, 1957. REQUETE INTRODUCTIVE D'INSTAKCE (25 VII 58) IO
Dans la correspondance diplomatique relative à l'affaire, qui
comprend la note du Gouvernement soviétique du 21 janvier 1957
et dont l'ensemble constitue des négociations qui doivent mainte-
nant êtreconsidéréescomme épuisées.le Gouvernement soviétique
a présenté une version des faits et du droit contraire à celle du
Gouvernement des Etats-Unis.
Il se présente dès lors un différend que la Cour peut examiner
et trancher conformément à son Statut et à son Règlement.
Dans les pièces ultérieures de la procédure, le Gouvernement
des Etats-Unis exposera plus complètement les points de fait et de
droit du présent différend. Il demandera à la Cour: de dire que le
Gouvernement soviétique est responsable à l'égard du Gouverne-
ment des États-Unis du préjudice causé; d'accorder au Gouverne-
ment des Etats-Unis des dominages à verser par le Gouvernement
soviétique pour un montant de $1.355.650.52, plus les intérêts,
: ainsi que les autres réparations et remèdes que la Cour pourra juger
convenables et appropriés; et de rendre toutes autres ordonnances
et sentences, y compris une sentence relative aux frais de procédure,
en vue de donner effet ce qu'elle décidera.
4. Le soussigné a étédésignépar le Gouvernement des États-
Unis d'Amérique comme son agent aux fins de la présente requête
et de toute la procédure y relative.
Veuillez agréer, etc.
(Signd) .ILoftus E. BECKER,
Agent du Gouvernement
des États-unis d'Amérique.
Annexes :
I. Note du Gouvernement des États-unis au Gouvernement
soviétique, 12 octobre 1956.
2. Note du Gouvernement soviétique au Gouvernement des
Etats-Unis, 21 janvier 1957.
3. Note du Gouvernement des États-Unis au Gouvernement
soviétique. 19 août 1957.
4. Note du Gouvernement soviétique au Gouvernement des
Etats-Unis, IO octobre 1957. ANNEXES TO APPLICATION (KO. 1)
NOTE TO THE SOVIET GOVERNMENT
OF OCTOBER 12, 1956
No. 347.
Excellency :
1 have the honor to transmit, upon the instruction of my Govern-
ment, the following communication frorn my Government to your
Government :
The Government of the United States of America makes reference
again to the destruction in the air space over the international
waters of the Sea of Japan on September 4. 1954. of a United
States Navy PzV-type aircraft, commonly known as a Neptune
type, by military aircraft of the Government of the Union of Soviet
Socialist Republics. Because the United States Government
believed, andbelieves, that the repetition of such incidents might
endanger the maintenance of international peace and security, it
brought the incident to the attention of the Security Council of the
United Nations, which discussed the incident and its implications
on September IO, 1954.ASit statedinits note to the Soviet Govern-
ment, Number 202 of September 6, 1954,the United States Govern-
ment also reserved al1rights to claim damages for loss of property
and lives and for other circumstances resulting from the illegal
attack by Soviet aircraft.
A careful study and review of al1 the available evidence with
respect to the incident confirms the essential correctness of the
statements made by the United States Government and compels
the United States Goverment to deny the version of the facts of
the incident and reject the claims of justification for the attack
advanced hy the Soviet Government. The United States Govern-
ment in this connection has given careful consideration to the
statements of fact regarding the incident made by the Soviet
Government's representative in the Security Council on Septem-
ber IO, 1954, and in the Soviet Govemment's latest note on this
suhject, Number 74/OsA, received by the American Embassy at
Moscow on September 8, 1954.
The purpose of the present communication is to prefer against
the Soviet Government a formai international diplomatic claim
for damages as set forth below. ANNEXES TO APPLICATION (NO. 1)
Annex I
NOTE TO THE SOVIET GOVERNMENT
OF OCTOBER 12, 1956
No. 347.
Excellency :
1 have the honor to transmit, upon the instruction of my Govern-
ment, the following communication from my Govemment to your
Government :
The Government of the United States of America makes reference
again to the destruction in the air space over the international
waters of the Sea of Japan on September 4, 1954, of a United
States Navy PzV-type aircraft, commonly known as a Neptune
type, by military aircraft of the Govemment of the Union of Soviet
Socialist Republics. Because the United States Government
believed, and believes, that the repetition of such incidents might
endanger the maintenance of international peace and security, it
bronght the incident to the attention of the Security Council of the
United Nations, which discussed the incident and its implications
on September IO, 1954.ASit statedinits note tothe Soviet Govern-
ment, Number 202 of Septemher 6, 1954, the United States Govern-
ment also reserved al1rights to claim damages for loss of property
and lives and for other circumstances resulting . from the illegal
attack by Soviet aircraft.
A careful studv and review of al1 the ;vailable evidence with
respect to the incident confirms the essential correctness of the
statements made hy the United States Government and compels
the United States Goverment to deny the version of the facts of
the incident and reject the claims of justification for the attack
advanced by the Soviet Government. The United States Govern-
ment in this connection has given careful consideration to the
statements of fact regarding the incident made by the Soviet
Government's representative in the Security Council on Septem-
ber IO, 1954, and in the Soviet Government's latest note on this
subject, Number 74/OsA, received by the American Embassy at
Moscow on September 8, 1954.
The purpose of the present communication is to prefer against
the Soviet Government a forma1 international diplomatic claim
for damages as set forth helow.12 AN'IEXES TO APPLICATION (NO. 1)
1
The United States Government is prepared to prove by evidence
in an appropriate forum, and it. charges, the following:
I. By virtue of the Security Treaty between the United States
of America and Japan signed at San Francisco on September 8,
1951, as well as by virtue of its rights under international law, the
United States Government on, and from time to time prior to,
September 4, 1954, dispatched military aircraft from the territory
of Japan over adjacent international air space including the inter-
national air space over the Sea of Japan. These facts were
undonbtedly well known at al1relevant times to the Soviet Govern-
ment.
2. Shortly hefore two o'clock in the afternoon of September 4,
1954, a P2V Neptune-type patrol aircraft, bearing Nnmber 1283j7,
of the United States Navy Air Arm departed from its base at
Atsugi, Japan, under orders fromappropriate United States Navy
authorities to conduct a routine patrol mission in the international
air space over the Sea of Japan upon a course from Niigata, Japan.
The mission was entirely peaceable in character, and it was directed,
and it was conducted, under the authorization of the Security
Treaty with Japan and in the exercise of the United States Govern-
ment's rights under international law.
Upon its departure the Neptune-type aircraft had on board a
crew of ten persons; al1 members of the United States Navy and
al1nationals of the United States.
The crew, officersand enlisted men,werecompetent byeducation,
training, and ski11to perform the various tasks relevant to the
flight, particularly aerial navigation and pilotage. The Neptune
aircraft and the equipment thereon were at al1 times during the
flight in efficient and good working order.
The aircraft in the course of its flight attained, and at al1 times
relevant .to the present claim maintained, except as recited below,
an altitude of about 8,000 feet, and it maintained a normalcruising
speed of approximately 180 knots. At no time did the aircraft
leave, after departing from Japanese territorial air space, the
international air space of the Sea of Japan. As it approached closer
to the land mass at the northern end of the Sea of Japan, the crew
made repeated and careful navigational checks, confirmed by
visual observation on the part of the crew and facilitated hy the
fact that weather and visibility in the area were good, to insnre
that they were flying, and wonld continue to fly, exclusively in the
international air space well over the universally acknowledged high
seas of the Sea of Japan.
At 5:58 o'clock in the afternoon, while the airplane was flying
on a course of 090 degrees magnetic, over the high seas of the Sea
of Japan, its position was approximately 41 degrees 51 minutes ANNEXES TO APPLICATIOK (ii0.1) I3
north and 132 degrees 47 minutes east. At 6:07'o'clock in the
afternoon, the course was changed to 067 degrees magnetic. The
ground speed of the aircraft at the time continued at approximately
180 knots andits altitude was approximately 8,000 feet.
The course of 067 degrees had heen continued for approximately
five minutes, when, without prior signal or warning, Soviet fighter
aircraft of the MIG type, at least two in number, came up behind
the Neptune aircraft, approaching it in an offensive, hostile firing
position, with the glaring Sun behind the fighters,and then, having
determined that this was a United States Neptune, still without
any prior warning opened fire upon the Neptune several seconds
after 6:r2 o'clock shooting numerous rounds of ammunition at it
from the rear in a manner calculated to effect the Neptune's
immediate destruction. The pilot of the Neptune, perceiving that
he was under hostile attack froni the rear, although not seeing nor
having seen the attacker or other Soviet aircraft, turned sharply
to the right and went simultaneously into a steep dive at a rate of
descent of approximately 2,000 to 3,000 feet per minute, attempt-
ing to fly farther and farther away from the Soviet land mass and
seeking the protective cover of a cloud bank approximately ten
miles farther away; but to no avail. The attacking Soviet aircraft,
unrelenting, resumed the hostile attitude, from above and to the
rear right of the Neptune; as the Neptune was descending, oneof the
Soviet aircraft approached from the rear right and from that rear
position resumed hostile firing against the Neptune at 6:13 o'clock.
The Neptune, continuing its steep dive in its attempt to reach the
cloud bank above described, made evasive maneuvers to the right
and left, carrying it farther still from the Soviet land mass. At the
second firing pass by the Soviet aircraft, the pilot of the Neptune
intensified evasive maneuvers directed toward reaching the cloud
bank shelter. But the Soviet fighters, still unrelenting, resumed
firing positions to the rear of the Neptune, now at an altitude of
approximately 3,000 feet from the surface of the sea, and reopened
firing attack and this time succeeded in hitting the left wing of the
Neptune causing it visible, multiple injuries. Only then did the
attacking Soviet MIG aircraft disengage and climb back to higher
altitude westward.
The Neptune's left wing was set on tire in consequence of this
final attack.The fire continued to spread quickly through the wing
to the fuselage, and when the Neptune had reachedan altitude of
400 feet over water and the protection of the cloud bank, the pilot
determined that it was necessary to abandon the aircraft in the
interest of the safety of the crew. The Neptune thereupon was
landed on the sea and came to a complete stop within 50 t- 7s yards
after the initial impact.
Th~- U----~ State~ ~ ~~r~m~nt has determined that the oint
of the first attack by the soviet fighter aircraft, above deschbed,
was over the high seas to the southeast of Cape Ostrovnoi, in the
2 -I‘t ASNEXES TO APPLICATION (NO. 1)
neighborhood of 42 degrees 22 minutes north and 134 degrees and
II minutes eait, or further to the south and east of that position,
that is, not closes to Soviet terntory than approximately 33 to 40
nautical miles: that the point of the second attack by the Soviet
fighter aircraft was slightly further to the east, but in the same
area although, as indicated above, at lower altitude; that the point
of the third attack was atthe edge of the cloud bank, approximately
IO miles to the east of the position of the first attack, and in the
neighborhood of 42 degrees 22 minutes north and 134 degrees 24
minutes east, and even farther from Soviet territory than the
earlier attacks.
Of the ten niembers of the crew on board the Neptune aircraft,
nine succeeded in making their way ont of the aircraft to the sur-
face of the sea and entered a survival raft which had been carned
aboard. Such was the deadliness of the damage effected by the
Soviet aircraft however that one member of the crew, Ensign Roger
H. Reid, was trapped in the fuselage which sank as the crew mem-
bers were leaving it and while he was attempting to put out an
additional survival life raft.
The nine surviving crew members in their survival raft remained
afloat in the area in which they had been shot down. No attempt
whatever was made by any authority of the Soviet Government
at rescue of the survivors. As the result of an emergency radio
message sent from the Neptune aircraft upon the Soviet attack,
rescue aircraft of the United States Government from Japan and
Korea discovered the survivors shortly beforedawn on September 5,
1954, at 42 degrees 19 minutes north and 134 degrees 20 minutes
east, and the survivors were duly rescued and returned to Japan.
Al1were in a state of shock resulting from the incident and their
exposure, and one suffered physical injuries resulting directly from
the unlawful action of the Soviet aircraft. In spite of a diligent and
careful search by aircraft and surface vessels, the body of Ensign
Roger H. Reid could not be found.
3. The United States Government concludes from its investi-
gation that the two Soviet MIG-type attacking aircraft were
dispatched by responsible Soviet ground authorities and their
pilots were then and continuously thereafter under the control,
and performed the actions of approach and firing upon the explicit
direction, of responsible Soviet ground authorities.
4. The United, States Government must conclude from its
consideration of al1 the evidence and al1 the surrounding circum-
stances that the acts of interception of the Neptune aircraft,
attack upon it and its destruction, were deliberate and calculated
on the part of responsible Soviet Government authorities; that
each of these acts was committed with full knowledge on the part
of such authorities that the Neptune aircraft was then lawfully
flying in the international air space over the Sea of Japan; and that ASSEXES TO APPLICATIOS (XO. 1) I5
thcse acts were directed and committed with the preconceived
intention of accomplishing both the destruction of the aircraft
and the death or injury of the crew.
II
The Soviet Government in its various notes to the United States
Government on this incident has given a version of the facts which
has by now taken on the character of a stereotype. The United
States Government finds as :I rcsult of its investigation that the
Soviet Government's version contains material misstatements of
fact. These rnisstatements were repeated and additional ones were
made by the Soviet representative in the Security Council on
September IO, 1954, in the course of the discussion of this incident
in the Secunty Council.
Of these material misstatements of fact the most significant
are the following:
I. The Soviet Government states and has reiterated that the
Neptune aircraft at 18 hours 12minutes local time on September 4,
1954, "violated the state frontier of the USSR in the region of
Cape Ostrovnoi to the east of the Port Nakhodka". At no tirne,
in any of its notes or in the statements made by the Soviet repre-
sentative in the Security Council, has the Soviet Government stated
any position in coordinates of latitude and longitude at which
any known or claimed frontier of the Soviet Government in this
area was crossed by the Neptune aircraft in the course of its flight.
The United States Governmcnt categorically denies any such
crossing at any time during the flight and reiterates that the Nep-
tune aircraft at al1times stayed within the international air space
over the Sea of Japan.
z. The Soviet Government states that two Soviet fighters
approached the Americain airplane "for the purpose of showing
it that it was within the limits of the frontiers of the Soviet Union
and of proposing that it immediately leave the air space of the
USSR". This statement the United States Government catego-
rically denies. At no time did the attacking Soviet aircraft or any
other aircraft make any approach to the Xeptune in flight in any
attitude consistent with any peaceable purpose, conveying any
signalor attempting to communicate any such message whatsoever;
on the contrary, the Soviet fighteraircraft approached the Neptune
aircraftfrom behincl and made their presence known only by firing
from hostile firing positions calculated to effect the immediate
destruction of the Neptune aircraft and without any prior warning
whatsoever. The United States Government notes again that this
stereotype Soviet allegation, made in the Soviet versions of other
incidents of similar illegality, is not supported by any alleg t'O~S
as to the means or methods by which the Soviet fighter aircraft are
claimed to have undertaken to convey the alleged message.16 ANNEXES TO APPLICATION (NO. I)
3. The Soviet Government further states that the American
airplane "opened fire on the Soviet airplanes" when the latter
approached for the above-mentioued purpose. This statement the
United States Government categorically denies. The only firing
byany member of the crew of the Neptuneaircraft took place while
the Neptune was in its sharp descent and seeking disengagement,
when one of the attacking Soviet fighters, having already fired on
the Neptune aircraft for the purpose of destroying it, appeared
again in continuation of the hostile attacks and one of the Neptune
crew, in self-defense and in avain attempt to ward off a repetition
of the previous hostile attack, sent tireiri the direction of the on-
coming attacker, which simultaneously fired at the Neptune.
As was pointed out in the Security Council discussion, and as the
Soviet Government is well aware, an allegation that a patrol air-
craft of the Neptune type initiated hostile firing at a fighter-air-
craft of the MIG type is senseless.
4. The Soviet Government states that the Soviet airplanes
"were obliged to open answering fire": This 'the United States
Government categorically denies. At the time of the attack the
Neptune aircraft was following an easterly course which, if con-
tinued, would place it progressively farther and farther away from ,
the Soviet-held land mass. The MIG-type Soviet aircraft, more-
over, could easily place itself out of range of the Neptune's arma-
ment when the crew member fired in vain self-defense, and this
must have heen obvious. Had the Soviet pilots been instructed or
had they intended to convey any signals to the Neptune aircraft,
they could easily with their speed and maneuverability disengage
the Neptune aircraft and remain out of range of its guns and still
observe it and communicate any signal. They were not "obliged"
to fire at the Neptune.
5. The Soviet Government states that after the opening of
answering fire upon it the American airplane "withdrew in the
direction of the sean and that Soviet authorities have no further
information of the fate of the Neptune aircraft. As the facts above
recited show, the attacking Soviet fighters did not disengage until
the obviously mortally wounded Neptune aircraft had reached an
altitude so low above the surface of the sea as to make further
attack by fighter aircraft risky as well as unnecessary, and was
approaching the protective cover of a low lying cloud layer approx-
imately ten miles to the right of the Neptune at the point of first
attack. These facts were known tothe Soviet pilots and undoubtedly
were communicated to the competent higher Soviet authorities.
The United States Government notes that having'wrongfully
accomplished the destruction of the Neptuneaircraft the responsihle
Soviet authorities made no attempt to mitigate their wrong by at-
tempting to effect any rescue of the survivors even though, contrary
to fact, the Soviet Government asserts.that the Soviet action ANNEXES TO APPLICATIOX (NO. 1) I7
against the Neptune aircraft took place within Soviet territorial
air space.
III
The United States Government concludes, and it charges, that
the foregoing actions of the pilots of the Soviet aircraft and of the
competent Soviet authorities made the Soviet Government guilty
of deliberate violations of international law on account of which
it has become liable to the United States Government for damages
and other amends. The United States Government has dealt in
other communications to the Soviet Government with allegations
by the Soviet Government of versions of fact and implications of
law similar to those contained in the Soviet Government's notes
regarding the present incident. Particular reference is made to
the United States Government's note of October y, 1954, concerning
the case of the United States B-50 aircraft shot down by Soviet
aircraft over the Sea of Japan on July zy, 1953. In regard to the
preserit incident, however, the United States Government desires
specifically to state:
I. To the extent that the Soviet Government claims a violation
of any Soviet frontier, the United States Government again declares
that the limit of the territory of the Soviet Government in the
area in which the present incident occurred extends no farther
than three nautical miles from the mean low water mark of the
Soviet-held land mass, following the sinuosities of the coast and the
sinuosities of each of the Soviet-held islands. The United States
Government prefers, however, to challenge the Soviet Govern-
ment's territorial claims in this regard only in the channels of
peaceful diplomatic negotiation and judicial determination. The
present incident occurred in international air space well outside
any territorialair space officially claimed by the Soviet Government
at any time so far as is known. But the United States Government
reasserts that in its opinion there is no obligation under interna-
tional law to recognize any Soviet claims to territorial waters or
air space in excess of three miles from the Soviet coast.
2. The Soviet Government, in its note of September 8, 1954,
has made statements questioning the conduct by United States
military aircraft of patrol flights over the Sea of Japan. The United
States Government reiterates that any peaceable flights conducted
by United States military aircraft in international air space have
the unquestionable sanction of international law and that particu-
larly the flight of the Neptune aircraft in the international air space
over the Sea of Japan recited above was so sanctioned. In addition,
as the United States Govenment has stated, apart from their
general international law sanction, peaceable flights in this area
by United States military aircraft, and the flight of the Neptune
in the present case, were and are specifically sanctioned and18 ASSESES TO APPLICATION (NO. 1)
envisaged by the Securily Treaty of September 8; 1951, bet\veen
the United States of America and Japan. The Goverliment of
Japan has. at al1relevant times, been, and it is, a sovereign govern-
ment having littoral rights along the Sea of Japaii and in the air
space above it.
3. Any shootirig by the crew of the Neptune aircraft at the
attacking hI1G-type aircraft in the circumstaiices described above
was lawful in the exercise of the right of self-defensIn the circum-
stances described above, had the purpose of the Soviet fighter
aircraft been to communicate signals or warnings, it was the duty
of their pilots and of their ground controllers to cngage in no
hostile approach or fire as a method of cominunication or to engage
in any hostile inaneuver or attitude in flight.
IV
The United States has suffered the following items of damage
in direct consequence of the foregoing illegal acts and \liolations
of duty and international legal obligations, for xvhich the Soviet
Government is liable, and the United States Government demands
that the Soviet Government pay the foilowing suins on acconnt
thereof:
I. Loss of the United States Xavy PzV-5 aircraft, Neptune type,
No. 128357, and the equipment thereon, amounting in total to
Bg39.183.00.
2. Damages to the United States by the willful and unlawfnl
conduct ofthe Soviet Government. amounting in total to $316.467.52.
3. Damages to the next of kin, nationals of the United States,
for the death of crew member Ensign Roger H. Reid. amounting
to $~0.000.00.
4. Injuries to the nine surviving members ofthecrew, amoiinting
to $~0,000.00.
'~OTAL . . . . .$1,355,650.52
The United States Government has not included in its demand
for damages, specified above, any sum on account of items of
intangible injury deliberately and intentionally caused to the
United States Government and to the American people by the
wrongful actions of the Soviet Government in this case. In this
regard the United States Government has determined to defer to a
future date the formulation of the kind and measure of redress or
other action which the Soviet Government should take which
would he appropriate in international law and practice to confirm
the illegality of the actions directed by the Soviet Government
against the United States Government and against the American
people. ANNEXES TO APPLIC.4TIOA' ((NO. 2) I9
The United States Government calls upon the Soviet Government
to make its detailed answers to the allegations and demands made
in this communication. Should the Soviet Government in its answer
acknowledge its indebtedness to the United States on account of
the foregoing and agree to pay the damages suffered, the United
States Government is prepared, if requested, to present detailed
evidence in support of its calculations of damages suffered and
alleged.
Accept, Excellency, the renewed assurances of my highest
consideration.
Annex z
NOTE FROM THE SOVIET GOVERNMENT
OF JANUARY 21,1957
No. 510%
In connection with the note of the Government of the United
States of America No. 347 of October 12, 1956, the Government of
the Union of Soviet Socialist Republics considers it necessary to
state the following.
The circumstances of the violation of the frontier of the USSR
in the region of Cape Ostrovnoi on September 4, 1954, hy an
American aircraft of the "Neptune" type were set forth in the
notes of the Soviet Government of September 5 and 8,1954.
In these notes it was communicated that according to precisely
estahlished facts on September 4, 1954, at 1812 hours local time
an American military twin-engined aircraft of the type "Neptune"
violated the frontier of the USSR in the region of Cape Ostrovnoi.
On the approach to the American aircraft of two Soviet fighter-
aircraft witli the aim of indicating to it that it was within the
limits of the frontier of the Soviet Union, and of proposing that
it leave the air space of the USSR, the American aircraft under
reference opened fire on the Soviet airplanes. In view of such a
hostile, unjustifiable act of the violating American aircraft toward
the Soviet aircraft, the latter were forced to open return fire, after
which the American aircraft withdrew toward the sea. Soviet
authorities have no information about the further fate of the vio-
lating aircraft.
The carefully verified data set forth in the Soviet notes fully
corresuond to realitv. and it was not necessarv for the SovietAartv,
in contradistinctiondto the American, to repface several times one
set of data with another, declaring that the information given
earlier was erroneous.
In this connection attention cannot but be directed to the
following.20 4NXEXES TO APPLICATION (NO. 2)
In note No. 202 of September 6, 1954, the Government of the
USA stated that the encounter of the American aircraft with the
Soviet fighters occurred over the open sea IOO miles to the east of
Vladivostok. But soon it retracted its assertion since it turned out
that the point IOO miles to the east of Vladivostok was not located
over the open sea, but on the territory of the USSR.
On September IO, 1954, the US representative, Mr. Lodge,
speaking in the Security Council ofthe United Nations Organization,
named a new point for the encounter of the aircraft with the
coordinates 4~~15'north latitude and 134'24' east longitude and
stated that "there could be no doubt" about the encounter at
precisely this point. However, as is obvious from the text of the
U.S. Government's note of October 12, 1956. at present the Ameri-
can party indicates still a third point with the coordinates 42'22'
north latitude and 134'11' east longitude. In reality the encounter
of the aircraft occurred in the air space of the USSR in the region
of Cape Ostrovnoi at a point with coordinates 42'42' north latitude
and 133'39' east longitude, as the American military command is
undoubtedly aware.
The statement of tbe American party concerning whether the
American aircraft opened fire on the Soviet fightershas also iinder-
gone changes. Thus, in the note of the Government of the USA
No. 203 of September 6, 1954, it was maintained that the American
aircraft during the course of the whole time of flight did not open
fire on the Soviet aircraft. However, in the note of October 12,
1956, the American party already acknowledges that the American
aircraft opened fire on the Soviet fighters.
The numerous changes by the American party in the version
of the flight of the aircraft "Neptune" in the region of Cape Ostrov-
noi and of its action upon the encounter with the Soviet aircraft
testifies that the American party is trying in every way to escape
responsibility, and nothwithstanding the facts, to create the
impression that the American aircraft did not violate the frontier
of the Soviet Union and was the victim of an attack by Soviet
fighters over the open sea.
With this aim the American party is attempting again to place
in doubt the legality of the establishment by the Soviet Union of
the twelve-mile limit of territorial waters. Attempts of this kind,
as was pointed out in the note of the Soviet Government of Decem-
ber 31. 1954, are groundless and have no basis whatsoever.
The Government of the USA in its note states that the American
aircraft "Neptune" could not have violated the borders of the
USSR if only because during its flight on September 4, 1954, there
was clear weather, good visibility and the aircraft was navigated
by a qualified crew. In this connection the Soviet Government
considers it necessary to point out that good conditions of the
flight of the aircraft in question merely confirm the correctness of
the conclusion contained in the Note of the Soviet Government of 21
ANNEXES TO APPLICATION (NO.3)
September 8, 1954, that the violation by this aircraft of the frontier
oftheUSSR was not accidental and was connected with the carrying
out of a specific assignment of the military command of the USA.
It is appropriate to recall that three other American aircraft which
violated the Soviet frontier December II, 1956, invaded the air
space of the Soviet Union, as was indicated in the Note of the
Soviet Government of December 15, 1956, also in conditions of
clear weather with good visibility.
On the basis of the foregoing, the Soviet Government states that
if the American party has incurred any damage whatsoever in
connection with the incident which took place September 4, 1954.
then the responsibility for that damage and for al1 other conse-
quences connected with the incident nnder reference lies entirely
on the American party, inasmuch as it has heen precisely deter-
mined that the US military aircraft, having violated the frontier
of the USSR, invaded the air space of the Soviet Union and withont
any basis opened fire on Soviet fighters. In view of this the Soviet
Government rejects as unfounded the claim set forth in the Note
of October 12 of the Government of the USA.
The Soviet Government entirely confirms its notes of Septem-
ber j and 8, 1954.
.4nnex 3
NOTE TO THE SOVIET GOVERNMENT OF AUGUST 19,1957
'rio. 176.
Excellency,
1have the honor to transmit, upon the instruction of my Govern-
ment, the following communication from my Government to your
Goveriiment :
The Government of the United States of America has received
the note No. 5/OSA of January 21, 1957, replying to the United
States Government's note delivered by its Embassy in Moscow as
note No. 347 of October 12,1956, relating ta the destruction in the
air space over the international waters of the Sea of Japan on
September 4, 1954, by military aircraft of the Government of the
Union of Soviet Socialist Republics of a United States Navy
PzV-type aircraft, commonly known as a Neptune type. The
United States Government notes that the Soviet Government has
categorically rejected the United States Government's claim for
damages; that the Soviet Government has disputed the United
States Government's allegations of fact on this subject as well as
its allegations of law. It notes fnrther that the Soviet Government,
in material variance from the allegations of the United States22 ANSEXES TO APPLICATION (NO.4)
Government in its note of January 21, 1957, contends that the
"encounter" took place at "a point with coordinates 42'42' north
latitudeand 133~39'east longitude", which the Soviet Government
claims is within Soviet territorial air space. The United States
Government denies the factual as well as the legal validity of this
contention and further reasserts that the actions of the Soviet
Government against the P2V aircraft were without warning and
unprovoked, and, under the circumstances which obtained, illegal.
In view of the foregoing considerations, the United States
Government believes, and hereby notifies the Soviet Government,
that it deems that an international dispute exists between the two
Governments falling within the competence of the International
Court of Justice and proposes that that dispute be presented for
hearing and decision in the International Court of Justice. Since
the Soviet Government has thus far not filed with that Court any
declaration of acceptance of the compulsory jurisdiction of that
Court, the United States Government invites the Soviet Govern-
ment to file an appropriate declaration with the Court, or to enter
into a Special Agreement, by which the Court may be empoivered
in accordance with its Statute and Rules to determine the issues
of fact and law betiveen the parties. The Soviet Government is
requested ta inform the United States Government of its intentions
with respect to such a declaration or Special Agreement.
Accept, Excellency, the renewed assurances of my liighest
consideration.
Annex 4
NOTE FROM THE SOVIET GOVERNMENT
OF OCTOBER 10, 1957
No. 61losa.
In connection with Note No. 176 of the Government of the
United States of America dated August 19, Igj7, the Government
of the Union of Soviet Socialist Republics considers it necessary
to state the following:
In its notes of September 5 and 8, 1gj4, and in the note of
January 21, 1957, the Soviet Government has already set down on
the basis of factual information the conditions of the violation on
September 4, 1954, of the state border of the USSR in the region
of Cape Ostrovnoi by an American airplane of the type "Neptune".
From the above-mentioned notes of the Soviet Government it
is clear that the American airplane violated the state border of the
USSR in the region of Cape Ostrovnoi on September 4, 1954, and
without provocation opened fire on Soviet intercepters guarding the
state border of the USSR. ANNEXES TO APPLICATlON (NO.4) 23
Taking into consideration that the facts of the violation by the
American airplane of the state border of the USSR and of its firing
upon Soviet airplanes fulfilling the function of defense of the state
border of the USSR are exactly established and that, in view of this,
responsibility for the above-mentioned incident lies fully on the
American side, the Soviet Government does not see any basis for
turning this question over for examination by the international
court as is proposed in the note of the Government of the USA of
August 19,-1957.
The Soviet Government confirms its notes of September j and
8, 1954. and of January 21, 1957.
Requête introductive d'instance