Summary of the Judgment of 6 November 2003

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands

2003/4 Summary
2003 November 6

(Islamic Republic of Iran v. United States of America)

Summary of the Judgment of 6 November 2003

History of the proceedings and submissions of the Parties (paras. 1-20)

On 2 November1992, the Islamic Republic of
proceedings against the United States of America (hereinafter called “the United States”) in respect
of a dispute “aris[ing] out of the attack [on] and destruction of three offshore oil production
complexes, owned and operated for commercial purposes by the National Iranian Oil Company, by
several warships of the United States Navy on 19October 1987 and 18 April 1988, respectively”.

In its Application, Iran contended that these acts constituted a “fundamental breach” of

various provisions of the Treaty of Amity, Econom ic Relations and Consular Rights between the
United States and Iran, which was signed in Te hran on 15August1955 and entered into force on
16June1957 (hereinafter called “the 1955 Trea
Application invoked, as a basis for the Court’s
1955 Treaty.

Within the time-limit fixed for the filing of th e Counter-Memorial, the United States raised a
preliminary objection to the jurisdiction of the Court pursuant to Article79, paragraph1, of the

Rules of Court of 14April1978. By a Judgment dated 12December1996 the Court rejected the
preliminary objection of the United States according to which the 1955 Treaty did not provide any
basis for the jurisdiction of the Court and found that it had jurisdiction, on the basis of Article XXI,
paragraph 2, of the 1955 Treaty, to entertain the cl aims made by Iran under Article X, paragraph 1,
of that Treaty.

The United States Counter-Memorial included a counter-claim concerning “Iran’s actions in

the Gulf during 1987-88 which, among other things, involved mining and other attacks on U.S.-flag
or U.S.-owned vessels”. By an Order of 10 March 1998 the Court held that this counter-claim was
admissible as such and formed part of the proceedings.

Public sittings were held be tween 17 February and 7 March 2003, at which the Court heard
the oral arguments and replies on the claim of Ira n and on the counter-claim of the United States.
At those oral proceedings, the following final submissions were presented by the Parties: - 2 -

On behalf of the Government of Iran,

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

“The Islamic Republic of Iran respectf ully requests the Court, rejecting all
contrary claims and submissions, to adjudge and declare:

1. That in attacking and destroying on 19October1987 and 18April1988 the oil
platforms referred to in Iran’s Application, the United States breached its
obligations to Iran under Article X, paragr aph 1, of the Treaty of Amity, and that
the United States bears responsibility for the attacks; and

2. That the United States is accordingly under an obligation to make full reparation
to Iran for the violation of its internati onal legal obligations and the injury thus
caused in a form and amount to be determined by the Court at a subsequent stage
of the proceedings, the right being reserved to Iran to introduce and present to the
Court in due course a precise evaluation of the reparation owed by the United

States; and

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

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

“The Islamic Republic of Iran respectf ully requests the Court, rejecting all

contrary claims and submissions, to adjudge and declare:

That the United States counter-claim be dismissed.”

On behalf of the Government of the United States,

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

“The United States respectfully requests that the Court adjudge and declare:

(1) that the United States did not breach its obligations to the Islamic Republic of
Iran under ArticleX, paragraph1, of the 1955Treaty 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 en gaging 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 ArticleX, paragraph 1, of the

1955 Treaty; and

(2) That the Islamic Republic of Iran is accordingly under an obligation to make full
reparation to the United States for its breach of the 1955Treaty in a form and
amount to be determined by the Court at a subsequent stage of the proceedings.” - 3 -

Basis of jurisdiction and factual background (paras. 21-26)

The Court begins by pointing out that its task in the present proceedings is to determine
whether or not there have been breaches of the 1955 Treaty, and if it finds that such is the case, to
draw the appropriate consequences according to the submissions of the Parties. The Court is seised

both of a claim by Iran alleging breaches by the United States, and of a counter-claim by the United
States alleging breaches by Iran. Its jurisdiction to entertain both the claim and the counter-claim is
asserted to be based upon Article XXI, paragraph 2, of the 1955 Treaty.

The Court recalls that, as regards the claim of Iran, the question of jurisdiction has been the
subject of its judgment of 12December1996. It notes that certain questions have however been

raised between the Parties as to the precise sign ificance or scope of that Judgment, which will be
examined below.

As to the counter-claim, the Court also recalls that it decided by its Order of 10 March 1998
to admit the counter-claim, and indicated in that Order that the facts alleged and relied on by the

United States “are capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty
as interpreted by the Court”, and accordingly that “the Court has jurisdiction to entertain the United
States counter-claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by
ArticleX, paragraph1” (I.C.J. Reports 1998 , p.204, para.36). It notes that in this respect also
questions have been raised between the Parties as to the significance and scope of that ruling on

jurisdiction, and these will be examined below.

The Court points out that it is however establis hed, by the decisions cited, that both Iran’s
claim and the counter-claim of the United States can be upheld only so far as a breach or breaches
of ArticleX, paragraph1, of the 1955Treaty may be shown, even though other provisions of the
Treaty may be relevant to the interpretation of th at paragraph. ArticleX, paragraph1, of the

1955Treaty reads as follows: “Between the territ ories of the two High Contracting Parties there
shall be freedom of commerce and navigation.”

The Court then sets out the factual background to the case, as it emerges from the pleadings
of both Parties, observing that the broad lines of this background are not disputed, being a matter of

historical record. The actions giving rise to both the claim and the counter-claim occurred in the
context of the general events that took place in the Persian Gulf ⎯ which is an international
commercial route and line of communication of major importance ⎯ between 1980 and 1988, in
particular the armed conflict that opposed Iran a nd Iraq. In 1984, Iraq commenced attacks against
ships in the Persian Gulf, notably tankers carrying Iranian oil. These were the first incidents of

what later became known as the “Tanker War”: in the period between 1984 and 1988, a number of
commercial vessels and warships of various national ities, including neutral vessels, were attacked
by aircraft, helicopters, missiles or warships, or st ruck mines in the waters of the Persian Gulf.
Naval forces of both belligerent parties were operating in the region, but Iran has denied
responsibility for any actions other than incidents involving vessels refusing a proper request for

stop and search. The United States attributes re sponsibility for certain incidents to Iran, whereas
Iran suggests that Iraq was responsible for them.

The Court takes note that two sp ecific attacks on shipping are of particular relevance in this
case. On 16 October 1987, the Kuwaiti tanker Sea Isle City, reflagged to the United States, was hit

by a missile near Kuwait harbour. The United States attributed this attack to Iran, and three days
later, on 19October1987, it attacked two Iran ian offshore oil production installations in the
Reshadat [“Rostam”] complex. On 14April1988, the warship USSSamuelB.Roberts struck a
mine in international waters near Bahrain while returning from an escort mission; four days later
the United States employed its naval forces to atta ck and destroy simultaneously the Nasr [“Sirri”]
and Salman [“Sassan”] complexes. - 4 -

These attacks by United States forces on the Iranian oil platforms are claimed by Iran to
constitute breaches of the 1955Treaty; and the attacks on the SeaIsleCity and the
USS Samuel B. Roberts were invoked in support of the United States’ claim to act in self-defence.
The counter-claim of the United States is however not limited to those attacks.

The United States request to dismiss Iran’s claim because of Iran’s allegedly unlawful conduct
(paras. 27-30)

The Court first considers a contention to which the United States appears to have attributed a
certain preliminary character. The United States as ks the Court to dismiss Iran’s claim and refuse
it the relief it seeks, because of Iran’s allegedly unlawful conduct, i.e., its violation of the

1955 Treaty and other rules of international law relating to the use of force.

The Court notes that in order to make the finding requested by the United States it would
have to examine Iranian and United States actions in the Persian Gulf during the relevant period ⎯
which it has also to do in order to rule on the Iranian claim and the United States counter-claim. At

this stage of its judgment, it does not therefore need to deal with this request.

Application of Article XX, paragraph 1 (d), of the 1955 Treaty (paras. 31-78)

The Court recalls that the dispute in the present case has been brought before it on the

jurisdictional basis of ArticleXXI, paragraph2, of the 1955 Treaty, which provides that “Any
dispute between the High Contractin g Parties as to the interpretation or application of the present
Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of
Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The Court further recalls that by its Judgment of 12 December 1996, it found that it had
jurisdiction, on the basis of this Article, “to entert ain the claims made by the Islamic Republic of
Iran under Article X, paragraph 1, of that Treaty” (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)). Its
task is thus to ascertain whether there has been a breach by the United States of the provisions of
Article X, paragraph 1; other provisions of the Treaty are only relevant in so far as they may affect
the interpretation or application of that text.

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

“The present Treaty shall not preclude the application of measures:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) necessary to fulfil the obligations of a High Contracting Party for the
maintenance or restoration of internati onal peace and security, or necessary to

protect its essential security interests.”

In its Judgment on the United States prelimin ary objection of 12 D ecember 1996, the Court
ruled that ArticleXX, paragraph1 (d) , does not afford an objection to admissibility, but “is
confined to affording the Parties a possible defence on the merits” (I.C.J. Reports 1996 (II) , p. 811,
para.20). In accordance with ArticleXXI, paragr aph2, of the Treaty, it is now for the Court to

interpret and apply that subparagraph, inasmuch as such a defence is asserted by the United States.

To uphold the claim of Iran, the Court must be satisfied both that the actions of the United
States, complained of by Iran, infringed the freed om of commerce between the territories of the
Parties guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the

essential security interests of the United States as contemplated by ArticleXX, paragraph1(d) . - 5 -

The question however arises in what order the Court should examine these questions of
interpretation and application of the Treaty.

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

Article X, paragraph 1. It is clear that the original dispute between the Parties related to the legality
of the actions of the United States, in the light of international law on the use of force. At the time
of those actions, neither Party made any mention of the 1955 Treaty. The contention of the United
States at the time was that its attacks on the oil platforms were justified as acts of self-defence, in
response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action
to the Security Council under Article51 of the Un ited Nations Charter. Before the Court, it has

continued to maintain that it was justified in acting as it did in exercise of the right of self-defence;
it contends that, even if the Court were to find that its actions do not fall within the scope of
Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and
appropriate actions in self-defence. Furthermore, as the United States itself recognizes in its
Rejoinder, “The self-defense issues presented in this case raise matters of the highest importance to

all members of the international community”, and both Parties are agreed as to the importance of
the implications of the case in the field of the use of force, even though they draw opposite
conclusions from this observation. The Court therefore considers that, to the extent that its
jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty authorizes it to examine and rule on
such issues, it should do so.

The question of the relationship between self-defence and Article XX, paragraph 1 (d), of the
Treaty has been disputed between the Parties, in par ticular as regards the jurisdiction of the Court.
In the view of the Court, the matter is one of in terpretation of the Treaty , and in particular of
Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty, when
providing therein that it should “not preclude the application of measures... necessary to protect

[the] essential security interests” of either party, intended that such should be the effect of the
Treaty even where those measures involved a use of armed force; and if so, whether they
contemplated, or assumed, a limitation that such use would have to comply with the conditions laid
down by international law. The Court considers that its jurisdiction under ArticleXXI,
paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia)

Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination
whether action alleged to be justified under that paragraph was or was not an unlawful use of force,
by reference to international law applicable to this question, that is to say, the provisions of the
Charter of the United Nations and customary international law.

The Court therefore examines first the application of ArticleXX, paragraph1(d) , of the
1955 Treaty, which in the circumstances of this case, as explained above, involves the principle of
the prohibition in international law of the use of fo rce, and the qualification to it constituted by the
right of self-defence. On the basis of that provision, a party to the Treaty may be justified in taking
certain measures which it considers to be “necessary” for the protection of its essential security
interests. In the present case, the question whether the measures taken were “necessary” overlaps

with the question of their validity as acts of self-defence.

In this connection, the Court notes that it is not disputed between the Parties that neutral
shipping in the Persian Gulf was caused consider able inconvenience and loss, and grave damage,
during the Iran-Iraq war. It notes also that this was to a great extent due to the presence of mines

and minefields laid by both sides. The Court has no jurisdiction to enquire into the question of the
extent to which Iran and Iraq complied with the in ternational legal rules of maritime warfare. It
can however take note of these circumstances, regarded by the United States as relevant to its
decision to take action against Iran which it consid ered necessary to protect its essential security
interests. Nevertheless, the legality of the actio n taken by the United States has to be judged by

reference to Article XX, paragraph 1 (d), of the 1955 Treaty, in the light of international law on the
use of force in self-defence. - 6 -

The Court observes that the United States has never denied that its actions against the Iranian
platforms amounted to a use of armed force. The Court indicates that it will examine whether each
of these actions met the conditions of ArticleXX, paragraph1(d) , as interpreted by reference to
the relevant rules of international law.

Attack of 19 October 1987 on Reshadat (paras. 46-64)

The Court recalls that the first installation attacked, on 19October1987, was the Reshadat
complex, which was also connected by submarine pipeline to another complex, named Resalat. At
the time of the United States attacks, these complexes were not producing oil due to damage
inflicted by prior Iraqi attacks. Iran has maintain ed that repair work on the platforms was close to

completion in October 1987. The United States has however challenged this assertion. As a result
of the attack, one platform was almost completely destroyed and another was severely damaged
and, according to Iran, production from the Reshad at and Resalat complexes was interrupted for
several years.

The Court first concentrates on the facts tendi ng to show the validity or otherwise of the
claim to exercise the right of self-defence. In its communication to the Security Council at the time
of the attack, the United States based this claim on the existence of “a series of unlawful armed
attacks by Iranian forces against the United States , including laying mines in international waters
for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft
without provocation”; it referred in partic ular to a missile attack on the Sea Isle City as being the

specific incident that led to the attack on the Iranian platforms. Before the Court, it has based itself
more specifically on the attack on the Sea Isle City , but has continued to assert the relevance of the
other attacks.

The Court points out that the United States has not claimed to have been exercising

collective self-defence on behalf of the neutral St ates engaged in shipping in the Persian Gulf.
Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in
exercise of the right of individual self-defence, the United States has to show that attacks had been
made upon it for which Iran was responsible; and that those attacks were of such a nature as to be
qualified as “armed attacks” within the meaning of that expression in Article51 of the United

Nations Charter, and as understood in customary la w on the use of force. The United States must
also show that its actions were necessary and prop ortional to the armed attack made on it, and that
the platforms were a legitimate military target open to attack in the exercise of self-defence.

Having examined with great care the eviden ce and arguments presented on each side, the
Court finds that the evidence indicative of Iranian responsibility for the attack on the Sea Isle City,

is not sufficient to support the contentions of the United States. The conclusion to which the Court
has come on this aspect of the case is thus that the burden of proof of the existence of an armed
attack by Iran on the United States, in the form of the missile attack on the Sea Isle City , has not
been discharged.

In its notification to the Security Council, and before the Court, the United States has
however also asserted that the Sea Isle City incident was “the latest in a series of such missile
attacks against United States flag and other non-be lligerent vessels in Kuwaiti waters in pursuit of
peaceful commerce”.

The Court finds that even taken cumulatively, and reserving the question of Iranian

responsibility, these incidents do not seem to the Court to constitute an armed attack on the United
States.

Attacks of 18 April 1988 on Nasr and Salman and “Operation Praying Mantis” (paras. 65-72) - 7 -

The Court recalls that the second occasion on which Iranian oil installations were attacked
was on 18April1988, with the attacks on the Salman and Nasr complexes. Iran states that the
attacks caused severe damage to the production facilities of the platforms; that the activities of the
Salman complex were totally interrupted for four years, its regular production being resumed only
in September1992, and reaching a normal level in 1993; and that activities in the whole Nasr

complex were interrupted and did not resume until nearly four years later.

The nature of the attacks on the Salman and Na sr complexes, and their alleged justification,
was presented by the UnitedStates to the United Nations Security Council in a letter from the
United States Permanent Representative of 18April1988, which stated inter alia that the United
States had “exercised their inherent right of self-defence under intern ational law by taking

defensive action in response to an attack by the Islamic Republic of Iran against a United States
naval vessel in international waters of th e PersianGulf”, namely the mining of the
USS Samuel B. Roberts; according to the United States, “This [was] but the latest in a series of
offensive attacks and provocations Iranian naval fo rces have taken against neutral shipping in the
international waters of the Persian Gulf.”

The Court notes that the attacks on the Salm an and Nasr platforms were not an isolated
operation, aimed simply at the oil installations , as had been the case with the attacks of
19October1987; they formed part of a much more extensive military action, designated
“Operation Praying Mantis”, conducted by the United States against what it regarded as “legitimate

military targets”; armed force was used, and damage done to a number of targets, including the
destruction of two Iranian frigates and other Iranian naval vessels and aircraft.

As in the case of the attack on the Sea Isle City , the first question is whether the United
States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine
laid by Iran. The Court notes that mines were be ing laid at the time by both belligerents in the

Iran-Iraq war, so that evidence of other minelayi ng operations by Iran is not conclusive as to
responsibility of Iran for this pa rticular mine. The main evidence that the mine struck by the
USS Samuel B. Roberts was laid by Iran was the discovery of moored mines in the same area,
bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel
Iran Ajr. This evidence is highly suggestive, but not conclusive.

Furthermore, no attacks on United States-f lagged vessels (as distinct from United
States-owned vessels), additional to those cited as justification for the earlier attacks on the
Reshadat platforms, have been brought to the Court’s attention, other than the mining of the
USS Samuel B. Roberts itself. The question is therefore whethe r that incident sufficed in itself to

justify action in self-defence, as amounting to an “armed attack”. The Court does not exclude the
possibility that the mining of a single military vess el might be sufficient to bring into play the
“inherent right of self-defence”; but in view of all the circumstances, including the
inconclusiveness of the evidence of Iran’s responsibility for the mining of the
USS Samuel B. Roberts, the Court is unable to hold that the attacks on the Salman and Nasr
platforms have been shown to have been justifia bly made in response to an “armed attack” on the

United States by Iran, in the form of the mining of the USS Samuel B. Roberts.

Criteria of necessity and proportionality(paras. 73-77)

The Court points out that in the present ca se a question of whether certain action is

“necessary” arises both as an element of internatio nal law relating to self-defence and on the basis
of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted, whereby the
Treaty does “not preclude . . . measures . . . necessary to protect [the] essential security interests” of
either party. The Court therefore turns to the criteria of necessity and proportionality in the context
of international law on se lf-defence. One aspect of these criteria is the nature of the target of the

force used avowedly in self-defence. - 8 -

The Court indicates that it is not sufficiently convinced that the evidence available supports
the contentions of the United States as to the sign ificance of the military presence and activity on
the Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman
and Nasr complexes. However, even accepting those contentions, for the purposes of discussion,
the Court finds itself unable to hold that the attacks made on the platforms could have been

justified as acts of self-defence. In the case both of the attack on the Sea Isle City and the mining
of the USS Samuel B. Roberts , the Court is not satisfied that the attacks on the platforms were
necessary to respond to these incidents.

As to the requirement of proportionality, the a ttack of 19 October 1987 might, had the Court
found that it was necessary in response to the Sea Isle City incident as an armed attack committed

by Iran, have been considered proportionate. In the case of the attacks of 18 April 1988, however,
they were conceived and execut ed as part of a more extens ive operation entitled “Operation
Praying Mantis”. As a response to the mining, by an unidentified agency, of a single United States
warship, which was severely damaged but not s unk, and without loss of life, neither “Operation
Praying Mantis” as a whole, nor even that part of it that destroyed the Salman and Nasr platforms,

can be regarded, in the circumstances of this case, as a proportionate use of force in self-defence.

Conclusion (para. 78)

The Court thus concludes from the foregoing that the actions carried out by United States

forces against Iranian oil installations on 19October1987 and 18April1988 cannot be justified,
under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the
essential security interests of the United States, since those actions constituted recourse to armed
force not qualifying, under international law on the question, as acts of self-defence, and thus did
not fall within the category of measures contemplated, upon its correct interpretation, by that
provision of the Treaty.

Iran’s claim under Article X, paragraph 1, of the 1955 Treaty (paras. 79-99)

Having satisfied itself that the United States may not rely, in the circumstances of the case,
on the defence to the claim of Iran afforded by Article XX, paragraph 1 (d), of the 1955 Treaty, the

Court turns to that claim, made under ArticleX, paragraph1, of that Treaty, which provides that
“Between the territories of the two High Contrac ting Parties there shall be freedom of commerce
and navigation.”

In its Judgment of 12December1996 on the preliminary objection of the United States, the

Court had occasion, for the purposes of ascertaining and defining the scope of its jurisdiction, to
interpret a number of provisions of the 1955 Treaty, including Article X, paragraph 1. It noted that
the Applicant had not alleged that any military ac tion had affected its free dom of navigation, so
that the only question to be decided was “whether the actions of the United States complained of by
Iran had the potential to affect ‘freedom of commerce’” as guaranteed by that provision (I.C.J.
Reports 1996(II) , p.817, para.38). After examining th e contentions of the Parties as to the

meaning of the word, the Court concluded that “ it would be a natural inte rpretation of the word
‘commerce’ in Article X, paragraph1, of the Tr eaty of 1955 that it includes commercial activities
in general ⎯ not merely the immediate act of purchase and sale, but also the ancillary activities
integrally related to commerce” (ibid., p. 819, para. 49).

In that decision, the Court also observed that it did not then have to enter into the question
whether ArticleX, paragraph1, “is restricted to commerce ‘between’ the Parties” (I.C.J. Reports
1996 (II), p.817, para.44). However it is now common ground between the Parties that that
provision is in terms limited to the protection of freedom of commerce “between the territories of
the two High Contracting Parties”. The Court observes that it is oil exports from Iran to the United

States that are relevant to the case, not such exports in general. - 9 -

In the 1996 Judgment, the Court further emphas ized that “ArticleX, paragraph1, of the
Treaty of 1955 does not strictly speaking protect ‘commerce’ but ‘freedom of commerce’”, and
continued: “Unless such freedom is to be rendered illusory, the possibility must be entertained that
it could actually be impeded as a result of acts entailing the destruction of goods destined to be
exported, or capable of affecting their trans port and storage with a view to export” (ibid. , p.819,

para. 50). The Court also noted that “Iran’s oil pr oduction, a vital part of that country’s economy,
constitutes an important component of its foreign trade”, and that “On the material now before the
Court, it is... not able to determine if and to what extent the destruction of the Iranian oil
platforms had an effect upon the export trade in Iranian oil . . .” (ibid., p. 820, para. 51). The Court
concludes by observing that if, at the present stage of the proceedings, it were to find that Iran had
established that such was the case, the claim of Iran under Article X, paragraph 1, could be upheld.

Before turning to the facts and to the details of Iran’s claim, the Court mentions that the
United States has not succeeded, to the satisfaction of the Court, in establishing that the limited
military presence on the platforms, and the evidence as to communications to and from them, could
be regarded as justifying treating the platforms as military installations (see above). For the same

reason, the Court is unable to regard them as outside the protection afforded by ArticleX,
paragraph 1, of the 1955 Treaty, as alleged by the United States.

The Court in its 1996 Judgment contemplat ed the possibility that freedom of commerce
could be impeded not only by “the destruction of goods destined to be exported”, but also by acts

“capable of affecting their transport and their st orage with a view to export” (I.C.J. Reports
1996 (II), p.819, para.50). In the view of the Court, the activities of the platforms are to be
regarded, in general, as commercial in nature; it does not, however, necessarily follow that any
interference with such activities involves an im pact on the freedom of commerce between the
territories of Iran and the United States.

The Court considers that where a State destroys another State’s means of production and
transport of goods destined for export, or mean s ancillary or pertaining to such production or
transport, there is in principle an interference with the freedom of inte rnational commerce. In
destroying the platforms, whose function, taken as a whole, was precisely to produce and transport
oil, the military actions made commerce in oil, at that time and from that source, impossible, and to

that extent prejudiced freedom of commerce. Whil e the oil, when it left the platform complexes,
was not yet in a state to be safely exported, the fa ct remains that it could be already at that stage
destined for export, and the destruction of the pl atform prevented further treatment necessary for
export. The Court therefore finds that the prot ection of freedom of commerce under ArticleX,
paragraph1, of the 1955 Treaty applied to the platforms attacked by the United States, and the

attacks thus impeded Iran’s freedom of commerce. However, the question remains whether there
was in this case an in terference with freedom of commerce “between the territories of the High
Contracting Parties”.

The United States in fact contends further that there was in any event no breach of Article X,
paragraph 1, inasmuch as, even assuming that the attacks caused some interference with freedom of

commerce, it did not interfere with freedom of comm erce “between the territories of the two High
Contracting Parties”. First, as regards the attack of 19 October 1987 on the Reshadat platforms, it
observes that the platforms were under repair as a result of an earlier attack on them by Iraq;
consequently, they were not engaged in, or contributing to, commerce between the territories of the
Parties. Secondly, as regards the attack of 18 April 1988 on the Salman and Nasr platforms, it

draws attention to United States Executive Order 12613, signed by President Reagan on
29October1987, which prohibited, with immediate effect, the import into the United States of
most goods (including oil) and services of Ir anian origin. As a consequence of the embargo
imposed by this Order, there was, it is sugges ted, no commerce between the territories of the
Parties that could be affected, and consequently no breach of the Treaty protecting it. - 10 -

Iran has asserted, and the United States has not denied, that there was a market for Iranian
crude oil directly imported into the United States up to the issuance of Executive Order12613 of
29 October 1987. Thus Iranian oil exports did up to that time constitute the subject of “commerce
between the territories of the High Contractin g Parties” within the meaning of ArticleX,
paragraph 1, of the 1955 Treaty.

The Court observes that at the time of the a ttack of 19 October 1987 no oil whatsoever was
being produced or processed by the Reshadat and Resalat platforms, since these had been put out of
commission by earlier Iraqi attacks. While it is tr ue that the attacks caused a major setback to the
process of bringing the platforms back into production, there was at the moment of the attacks on
these platforms no ongoing commerce in oil produced or processed by them.

The Court further observes that the embargo imposed by Executive Order 12613 was already
in force when the attacks on the Salman and Nasr platforms were carried out; and that, it has not
been shown that the Reshadat and Resalat platforms would, had it not been for the attack of
19October1987, have resumed production before the embargo was imposed. The Court must

therefore consider the significance of that Executive Order for the interpretation and application of
Article X, paragraph 1, of the 1955 Treaty.

The Court sees no reason to question the view sustained by Iran that, over the period during
which the United States embargo was in effect , petroleum products were reaching the United

States, in considerable quantities, that were derive d in part from Iranian crude oil. It points out,
however, that what the Court has to determine is not whether something that could be designated
“Iranian” oil entered the United States, in some fo rm, during the currency of the embargo; it is
whether there was “commerce” in oil between the territories of Iran and the United States during
that time, within the meaning given to that term in the 1955 Treaty.

In this respect, what seems to the Court to be determinative is the nature of the successive
commercial transactions relating to the oil, rather than the successive technical processes that it
underwent. What Iran regards as “indirect” commerce in oil between itself and the United States
involved a series of commercial transactions: a sale by Iran of crude oil to a customer in Western
Europe, or some third country other than the Unit ed States; possibly a series of intermediate

transactions; and ultimately the sale of petroleum products to a customer in the United States. This
is not “commerce” between Iran and the United States, but commerce between Iran and an
intermediate purchaser; and “commerce” between an intermediate seller and the United States.

The Court thus concludes, with regard to the attack of 19October1987 on the Reshadat

platforms, that there was at the time of those attacks no commerce between the territories of Iran
and the United States in respect of oil produced by those platforms and the Resalat platforms,
inasmuch as the platforms were under repair and inoperative; and that the attacks cannot therefore
be said to have infringed the freedom of commer ce in oil between the territories of the High
Contracting Parties protected by Article X, paragraph 1, of the 1955 Treaty, particularly taking into
account the date of entry into force of the embargo effected by Executive Order 12613. The Court

notes further that, at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all
commerce in crude oil between the territories of Iran and the United States had been suspended by
that Executive Order, so that those attacks also cannot be said to have infringed the rights of Iran
under Article X, paragraph 1, of the 1955 Treaty.

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

* - 11 -

The Court furthermore concludes that, in view of this finding on the claim of Iran, it
becomes unnecessary to examine the argument of the United States (referred to above) that Iran
might be debarred from relief on its claim by reason of its own conduct.

United States Counter-Claim (paras. 101-124)

The Court recalls that the United States has fi led a counter-claim against Iran and refers to
the corresponding final submissions presented by the United States in the Counter-Memorial.

The Court further recalls that, by an Order of 10 March 1998 it found “that the counter-claim
presented by the United States in its Counter-Memorial is admissible as such and forms part of the

current proceedings.”

Iran’s objections to the Court’s jurisdiction and to the admissibility of the United States
counter-claim (paras. 103-116)

Iran maintains that the Court’s Order of 10 March 1998 did not decide all of the preliminary
issues involved in the counter-claim presented by the United States; the Court only ruled on the
admissibility of the United States counter-claim in relation to Article80 of the Rules of Court,
declaring it admissible “as such”, whilst reserving the subsequent procedure for further decision.
Iran contends that the Court should not deal with the merits of the counter-claim, presenting five

objections.

The Court considers that it is open to Iran at this stage of the proceedings to raise objections
to the jurisdiction of the Court to entertain the counter-claim or to its admissibility, other than those
addressed by the Order of 10March1998. It points out that this Order does not address any
question relating to jurisdiction and admissibility not directly linked to Article 80 of the Rules. The

Court indicates that it will therefore proceed to address the objections now presented by Iran.

The Court finds that it cannot uphold the first objection of Iran to the effect that the Court
cannot entertain the counter-claim of the United States because it was pres ented without any prior
negotiation, and thus does not relate to a disput e “not satisfactorily adjusted by diplomacy” as

contemplated by ArticleXXI, paragraph2, of the 1955Treaty. The Court points out that it is
established that a dispute has arisen between Iran and the United States over the issues raised in the
counter-claim; and that it is sufficient for th e Court to satisfy itself that the dispute was not
satisfactorily adjusted by diplomacy before being submitted to the Court.

The Court finds that the second objection of Iran, according to which the United States is in
effect submitting a claim on behalf of third States or of foreign entities and has no title to do so, is
devoid of any object and cannot be upheld The Court recalls that the first submission presented by
the United States in regard to its counter-claim simply requests the Court to adjudge and declare
that the alleged actions of Iran breached its obligations to the United States, without mention of any
third States.

In its third objection, Iran contends that the United States counter-claim extends beyond
ArticleX, paragraph1, of the 1955 Treaty, the only text in respect of which the Court has
jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the terms of
paragraph1 of that Article. The Court notes that the United States, in presenting its final

submissions on the counter-claim, no longer relies, as it did at the outset, on ArticleX of the
1955Treaty as a whole, but on paragraph1 of that Article only, and, furthermore, recognizes the
territorial limitation of ArticleX, paragraph1, referring specifically to the military actions that
were allegedly “dangerous and detrimental to co mmerce and navigation between the territories of
the United States and the Islamic Republic of Iran ” (emphasis added) rather than, generally, to

“military actions that were dangerous and detrimen tal to maritime commerce”. By limiting the - 12 -

scope of its counter-claim in its final submissi ons, the United States has deprived Iran’s third
objection of any object, and the Court finds that it cannot therefore uphold it.

In its fourth objection Iran maintains that “the Court has jurisdiction to rule only on
counter-claims alleging a violation by Iran of freedom of commerce as protected under

Article X (1), and not on counter-c laims alleging a violation of freedom of navigation as protected
by the same paragraph”. The Court notes nevertheless, that Iran seems to have changed its position
and recognized that the counter-claim could be fo unded on a violation of freedom of navigation.
The Court further observes that it also concluded in 1998 that it had jurisdiction to entertain the
United States Counter-Claim in so far as the facts alleged may have prejudiced the freedoms (in the
plural) guaranteed by ArticleX, paragraph1, of the 1955 Treaty, i.e., freedom of commerce and

freedom of navigation. This objection of Iran thus cannot be upheld by the Court.

Iran presents one final argument against the admissibility of the United States counter-claim,
which however it concedes relates only to part of the counter-claim. Iran contends that the United
States has broadened the subject-matter of its claim beyond the submissions set out in its

counter-claim by having, belatedly, added complaints relating to freedom of navigation to its
complaints relating to freedom of commerce, and by having added new examples of breaches of
freedom of maritime commerce in it s Rejoinder in addition to the in cidents already referred to in
the Counter-Claim presented with the Counter-Memorial.

The Court observes that the issue raised by Iran is whether the United States is presenting a
new claim. The Court is thus faced with identifyi ng what is “a new claim” and what is merely
“additional evidence relating to the original cl aim”. It is well established in the Court’s
jurisprudence that the parties to a case cannot in the course of proceedings “transform the dispute
brought before the Court into a dispute that would be of a different nature.” The Court recalls that
it has noted in its Order of 10March1998 in the present case that the Counter-Claim alleged

“attacks on shipping, the laying of mines, and ot her military actions said to be ‘dangerous and
detrimental to maritime co mmerce’” (I.C.J. Reports 1998 , p.204, para.36). Subsequently to its
Counter-Memorial and Counter-Claim and to that Order of the Court, the United States provided
detailed particulars of further incidents substantiati ng, in its contention, its original claims. In the
view of the Court, the United States has not, by doing so, transformed the subject of the dispute

originally submitted to the Court, nor has it modi fied the substance of its counter-claim, which
remains the same. The Court therefore cannot uphold the objection of Iran.

Merits of the United States Counter-Claim (paras. 119-123)

Having disposed of all objections of Iran to its jurisdiction over the counter-claim, and to the
admissibility thereof, the Court considers the counter-claim on its merits. It points out that, to
succeed on its counter-claim, the United States must show that: (a) its freedom of commerce or
freedom of navigation between the territories of the High Contracting Parties to the 1955 Treaty
was impaired; and that (b) the acts which allegedly impaired on e or both of those freedoms are
attributable to Iran.

The Court recalls that ArticleX, paragraph1, of the 1955 Treaty does not protect, as
between the Parties, freedom of commerce or freedom of navigation in general. As already noted
above, the provision of that paragraph contains an important territorial limitation. In order to enjoy
the protection provided by that text, the commerce or the navigation is to be between the territories

of the United States and Iran. The United States bears the burden of proof that the vessels which
were attacked were engaged in commerce or navigation between the territories of the United States
and Iran.

The Court then examines each of Iran’s alle ged attacks, in chronological order, from the

standpoint of this requirement of the 1955 Treaty a nd concludes that none of the vessels described
by the United States as being damaged by Iran’s alleged attacks was engaged in commerce or - 13 -

navigation “between the territories of the two Hi gh Contracting Parties”. Therefore, the Court
concludes that there has been no breach of Article X, paragraph 1, of the 1955 Treaty in any of the
specific incidents involving these ships referred to in the United States pleadings.

The Court takes note that the United States has also presented its claim in a generic sense. It
has asserted that as a result of the cumulation of attacks on US and other vessels, laying mines and
otherwise engaging in military actions in the Pers ian Gulf, Iran made the Gulf unsafe, and thus
breached its obligation with respect to freedom of commerce and freedom of navigation which the
United States should have enjoyed under Article X, paragraph 1, of the 1955 Treaty.

The Court observes that, while it is a matter of public record that as a result of the Iran-Iraq
war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for the
Court to decide that ArticleX, paragraph1, was br eached by Iran. It is for the United States to
show that there was an actual impediment to commerce or navigation between the territories of the

two High Contracting Parties. However, the Unite d States has not demonstrated that the alleged
acts of Iran actually infringed the freedom of comm erce or of navigation between the territories of
the United States and Iran. The Court also notes that the examination above of specific incidents
shows that none of them individually involved an y interference with the commerce and navigation
protected by the 1955 Treaty; accordingly the generic claim of the United States cannot be upheld.

The Court has thus found that the counter-cl aim of the United States concerning breach by
Iran of its obligations to the United States un der ArticleX, paragraph1, of the 1955Treaty,
whether based on the specific incidents listed, or as a generic claim, must be rejected; there is
therefore no need for it to consider, under this head, the contested issues of attribution of those

incidents to Iran. In view of the foregoing, the United States claim for reparation cannot be upheld.

*

The full text of the operative paragraph (para. 125) reads as follows:

“For these reasons,

T HE C OURT ,

(1) By fourteen votes to two,

Finds that the actions of the United States of America against Iranian oil platforms on
19October1987 and 18April1988 cannot be justified as measures necessary to protect the
essential security interests of the United States of America under ArticleXX, paragraph1(d) , of
the 1955 Treaty of Amity, Economic Relations an d Consular Rights between the United States of

America and Iran, as interpreted in the light of international law on the use of force; finds further
that the Court cannot however uphold the submission of the Islamic Republic of Iran that those
actions constitute a breach of the obligations of the United States of America under ArticleX,
paragraph1, of that Treaty, regarding freedom of commerce between the territories of the parties,
and that, accordingly, the claim of the Islamic Re public of Iran for reparation also cannot be

upheld;

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

AGAINST : Judges Al-Khasawneh, Elaraby;

(2) By fifteen votes to one, - 14 -

Finds that the counter-claim of the United States of America concerning the breach of the
obligations of the Islamic Republic of Iran underArticleX, paragraph1, of the above-mentioned
1955 Treaty, regarding freedom of commerce and navi gation between the territories of the parties,
cannot be upheld; and accordingly, that the counter-claim of the United States of America for

reparation also cannot be upheld.

IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,

Owada, Tomka; Judge ad hoc Rigaux;

AGAINST : Judge Simma.

___________ Annex to Summary 2003/4

Declaration of Judge Ranjeva

Subscribing to the conclusions set out in the Judgment, Judge Ranjeva raises the distinction
arising in respect of the same se t of facts between the violation of freedom of commerce between
the two Parties and the non-violation of freedom of commerce between those Parties’ territories.

In his declaration Judge Ranjeva draws attention to the fact that the Judgment pierces the veil

of the dispute: the Court sought to give priority to thorough consideration of the point of law to
which the Parties ascribed the greatest importance : whether the use of force was justified under
ArticleXX, paragraph1, of the 1955Treaty or the principle of self-def ence under international
law. The negative response given in the operative part itself reflects the Court’s decision to adopt
an approach grounded on an analysis of the elements of the claim: its cause (cur) and its subject
(quid). It would have been appropriate under th ese circumstances to look to Article38,

paragraph2, of the Rules of Court and to refer directly to the concept of the cause of the claim.
Another approach, masking the cause of the claim, would have affected the subject of the litigants’
true intent and favoured wholly artificial consider ations or purely logical ones, given the strategy
employed in presenting the claims and arguments. In the present proceedings the Respondent’s
attitude helped to forestall the theoretical deba te concerning the tension between the consensual

basis of the Court’s jurisdiction and the principle jura novit curia.

Declaration of Judge Koroma

In the declaration he appended to the Judgment, Judge Koroma stated that it was crucial and

correct, in his view, that the Court had determined that measures involving the use of force and
purported to have been taken under the Article of the 1955 Treaty relating to the maintenance or
restoration of international peace and security, or necessary to protect a State party’s essential
security interests, had to be judged on the basis of the principle of the prohibition under
international law of the use of fo rce, as qualified by the right of self-defence. In other words,
whether an action alleged to be justified under the Article was or was not an unlawful measure had

to be determined by reference to the criteria of the United Nations Charter and general international
law.

He agreed with the Court’s decision, as reflected in the Judgment, that the actions carried out
against the oil installations were not lawful as me asures necessary to protect the essential security

interests of the United States, since those actio ns constituted recourse to armed force not
qualifying, under the United Nations Charter and gene ral international law, as acts of self-defence,
and thus did not fall within the category of measures contemplated by the 1955 Treaty.
Judge Koroma maintained that that finding constituted a reply to the submissions of the Parties and,
accordingly, the issue of non ultra petita did not arise.

He also subscribed to the Court’s finding th at the protection of freedom of commerce under
the 1955 Treaty applied to the oil installations an d that the attacks, prima facie, impeded Iran’s
freedom of commerce within the meaning of that ex pression in the text of the Treaty, but did not
violate the freedom of commerce. JudgeKoro ma considered this finding not devoid of
significance. - 2 -

Separate opinion of Judge Higgins

Judge Higgins has voted in favour of the dispositif , because she agrees that the claim of Iran
that the United States has violated Article X, paragraph 1, of the Treaty of Amity cannot be upheld.

However, she believes that this determination makes it unnecessary for the Court also to

address in its Judgment the question of whether the United States could justify its military attacks
on the oil platforms under ArticleXX, paragraph1(d) , of the same Treaty. This is because the
Court itself has said, in its Judgment on Prel iminary Objections in 1996, that ArticleXX,
paragraph 1 (d), is in the nature of a defence. In the absence of any finding of a breach by the
United States of Article X, paragraph 1, the issue of a possible defence does not arise.

Judge Higgins observes that there are two particular reasons why there should not have been
a finding on Article XX, paragraph 1 (d) , in the dispositif. The first is that the Court usually treats
a defence as part of its reasoning in deciding whether a Respondent has acted contrary to an
international legal obligation. It is its conclusion which normally constitutes the dispositif, and not
its reasoning as to any possible defence or justif ication. The second reason is that, given the

consensual basis of jurisdiction, the Court is limited in the dispositif to making findings upon
matters that the Applicant has requested for dete rmination. The final submissions of Iran do not
include any request for a determination on Article XX, paragraph 1 (d).

Even if it had been correct for the Court to deal with that clause, Judge Higgins believes that
it should then have interpreted the particular provi sions in the light of general international law as

to their specific terms. In her view, the Court has not interpreted the actual terms of ArticleXX,
paragraph 1 (d), but has essentially replaced them, assess ing the United States military action by
reference to the law on armed attack and self-defence.

Finally, in Judge Higgins’s opinion, in the handling of the evidence that would fall for

consideration in any examination of ArticleXX, paragraph1(d) , the Court has not specified the
standard of evidence to be met; nor dealt with the evidence in sufficient detail; nor dealt with it in
an even-handed manner.

Separate opinion of Judge Parra-Aranguren

Judge Parra-Aranguren declared that his vote for the operative part of the Judgment should
not be understood as an expression of agreement with each and every part of the reasoning
followed by the Court in reaching its conclusions. In particular he indicated his disagreement with
the first sentence of paragraph 125 (1) stating that the Court: “Finds that the actions of the United
States of America against Iranian oil platforms on 19October1987 and 18April1988 cannot be

justified as measures necessary to protect the esse ntial security interests of the United States of
America under Article XX, paragraph 1 (d) , of the 1955 Treaty of Amity, Economic Relations and
Consular Rights between the United States of America and Iran, as interpreted in the light of
international law on the use of force.”

The reasons for his disagreement are the following:

The Court decided in its 12 December 1996 Judg ment that: “it has jurisdiction, on the basis
of ArticleXXI, paragraph2, of the Treaty of 1955, to entertain the claims made by the Islamic
Republic of Iran under Article X, paragraph 1, of that Treaty” (Oil Platforms (Islamic Republic of
Iranv. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996(II) ,

p. 821, para. 55 (2)).

In its first and main submission Iran requests the Court to reject all contrary claims and
submissions and to adjudge and declare “That in attacking and destroying on 19 October 1987 and - 3 -

18April1988 the oil platforms referred to in Ir an’s Application, the United States breached its
obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that the United States
bears responsibility for the attacks.”

Thus Judge Parra-Aranguren considered that the subject-matter of the dispute submitted by
the Islamic Republic of Iran (hereinafter Iran) to the Court was whether the military actions of the

United States of America (hereinafter the United States) breached its obligations to Iran under
Article X, paragraph 1, of the Treaty of Amity, Economic Relations and Consular Rights signed in
Teheran on 15August 1955 (hereinafter the 1955Tr eaty), in force between the parties. Therefore
the task of the Court was to decide the claim pr esented by Iran, i.e., to examine and determine
whether the United States violated its obligations under Article X, paragraph 1, of the 1955 Treaty.

In his opinion it is only if the Court came to the conclusion that the United States breached its
obligations under Article X, paragraph 1, of the 1955 Treaty that it would have jurisdiction to enter
into the consideration of the defe nce advanced by the United States to justify its military actions
against Iran, in particular whether they were justified under Article XX, paragraph 1 (d), of the
1955 Treaty as necessary to protect its “essential security interests”.

In the Court’s view there are particular considerations militating in favour of an examination
of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1.

The first particular consideration militating in favour of reversing the order of examination
of the Articles of the 1955 Treaty, as explained in paragraph 37 of the Judgment, is that: “It is clear

that the original dispute between the Parties rela ted to the legality of the actions of the United
States, in the light of international law on the use of force”; “At the time of those actions, neither
Party made any mention of the 1955 Treaty”, the Un ited States contending that “its attacks on the
oil platforms were justified as acts of self-defence, in response to what it regarded as armed attacks
by Iran”; and “on that basis it gave notice of its action to the Security Council under Article 51 of
the United Nations Charter”.

As the second particular consideration, para graph38 of the Judgment indicates that, in its
Rejoinder, the United States itself recognizes that “The self-defense issues presented in this case
raise matters of the highest importance to all me mbers of the international community”; and that
Iran also stresses the great importance of those issues.

In the opinion of Judge Parra-Aranguren there can be no doubt that matters relating to the
use of force and to self-defence are of the highes t importance to all members of the international
community. He also stated that, while being perfectly well aware at that time of the two particular
considerations indicated above, the Court in its 1996 Judgment expressly interpreted ArticleXX,
paragraph 1 (d), of the 1955 Treaty “as affording only a defence on the merits”, concluding that it

“is confined to affording the Parties a possible defence on the merits to be used should the occasion
arise” (Oil Platforms (Is lamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I.C.J. Reports 1996 (II), p. 811, para. 20).

Consequently, Judge Parra-Aranguren is convinced that there are no “particular
considerations militating in fa vour of an examination of th e application of ArticleXX,

paragraph 1 (d) , before turning to ArticleX, paragraph1”. On the contrary, there are strong
considerations in favour of not doing so. The second sentence of paragraph125(1) of the
Judgment dismisses the claim presented by Iran because the Court came to the conclusion that the
United States had not violated ArticleX, paragraph1, of the 1955Treaty. In the opinion of
Judge Parra-Aranguren, that is the end of the story. Therefore he concluded that the Court did not

have jurisdiction to examine the defences a dvanced by the United States on the basis of
Article XX, paragraph 1 (d), to justify its hypothetical violatio n of ArticleX, paragraph1, of the
1955 Treaty. - 4 -

Separate opinion of Judge Kooijmans

Judge Kooijmans has voted in favour of the dispositif since he agreed with its substance. He
is, however, of the view that the Court’s finding that the actions of the United States against the oil
platforms cannot be justified as measures necessary to protect its essential security interests is not
part of the decision on the claim and therefore should not have found a place in the dispositif . That

creates the hazardous precedent of an obiter dictumin the operative part of a judgment.

In his separate opinion Judge Kooijmans first gives a more detailed overview of the factual
context than is presented in the Judgment.

He then deals with the substance of the dispute before the Court, which deals with the

question whether the United States violated its obligation under ArticleX, paragraph1, of the
1955Treaty concerning freedom of commerce, and not whether it used force in breach of the
United Nations Charter and customary law.

He is of the view that Article XX, paragraph 1 (d) , of the 1955 Treaty enabling the parties to

take measures necessary to protect their essential security interests, is not an exoneration clause but
a freestanding provision and that the Court therefore correctly concluded that it was free to choose
whether it would first deal with Article X, or with Article XX, paragraph 1 (d). But once the Court
had found that the United States could not invoke Article XX, it had to decide the case on grounds
material to Article X, paragraph 1, itself. Its conclusion with regard to Article XX, paragraph 1 (d),
became irrelevant for the disposition on the claim and therefore should not have found a place in

the operative part of the Judgment.

Judge Kooijmans also dissociates himself from the way in which the Court puts the
measures, invoked by the United States as “necessar y to protect its essential security interests”,
directly to the test of the general rules of law on the use of force including the right to self-defence,

thereby misinterpreting the scope of its jurisdiction.

In the last part of his opinion, Judge Kooijmans indicates what in his opinion would have
been the proper approach to deal with the legal aspects of ArticleXX, paragraph1(d) . In this
respect he follows the distinction made by the Court in its 1986 Judgment in the Nicaragua case
between a test of reasonableness with regard to the assessment of the threat to the security risks and

a legality test with regard to the necessity of the measures taken. Applying this method and using
the rules of general international law on the use of force as a means to interpret the meaning of
“necessary”, Judge Kooijmans concludes that the actions against the oil platforms do not constitute
measures which can be deemed necessary to protect the essential security interests of the United
States.

Dissenting opinion of Judge Al-Khasawneh

JudgeAl-Khasawneh felt that the formal structure of the dispositif amalgamating as it does
two distinct findings in one paragraph was unorthodox and unfortunate. It also left
JudgeAl-Khasawneh with a difficult choice of accep ting the paragraph as a whole or leaving it.

He felt compelled to dissent because he disagreed with the finding that the United States was not in
violation of its obligations under ArticleX, paragraph1, of the 1955 Treaty on the freedom of
commerce. That finding was arrived at by u npersuasive reasoning that draws an artificial
distinction between protected commerce (direct commerce) an d unprotected commerce (indirect
commerce). He pointed out that international trade law thresholds were ill-suited as a yardstick for

treaty-protected commerce, moreover the Judgment was unduly restrictive of the definition of
freedom of commerce which included not only actual but also potential commerce.
JudgeAl-Khasawneh felt also that the approach could not be supported on the basis of textual
analysis and was at variance with earlier jurisprudence. - 5 -

Regarding the United States counter-claim which was rejected by the Court,
Judge Al-Khasawneh felt this was a consequence of the Court’s narrow interpretation of protected
commerce and felt it would be better if the Court had upheld claim and counter-claim. The main
difficulty with the United States claim was however the problem of attribution to Iran.

Judge Al-Khasawneh felt that the Court should have been clearer in its use of language when

it came to rejecting United States claims that thei r actions against the oil platforms were justified
by Article XX, paragraph 1 (d) , of the 1955 Treaty as necessary measures to protect United States
essential security interests. The use of force ma de it inevitable to discu ss these criterion in the
language of necessity and proportionality which form part of the concept of the non-use of force.

Separate opinion of Judge Buergenthal

Judge Buergenthal agrees with the Court’s Judgment to the extent that it holds that the
United States of America did not breach Article X, paragraph 1, of the 1955 Treaty between it and
Iran. He also agrees with the Court’s decision rejecting the counter-claim interposed by the United

States against Iran. That decision of the Court is justified, in his view, for the very reasons, mutatis
mutandis, that led the Court to find that the United States did not breach the obligations it owed
Iran under ArticleX, paragraph1, of the 1955Tr eaty. But Judge Buergenthal dissents from the
Court’s conclusion that the actions of the United States, in attacking certain Iranian oil platforms,
cannot be justified under ArticleXX, paragraph1(d) , of the Treaty “as interpreted in the light of
international law on the use of force”. He cons iders that this pronouncement has no place in the

Judgment, much less in the operative part thereof.

Judge Buergenthal believes that the Court’ s Judgment, as it relates to ArticleXX,
paragraph 1 (d), is seriously flawed for the following reasons. First, it makes a finding with regard
to Article XX, paragraph 1 (d), of the 1955 Treaty that violates the non ultra petita rule, a cardinal

rule governing the Court’s judicial process, which does not allow the Court to deal with a
subject ⎯ here ArticleXX, paragraph1(d) ⎯ in the dispositif of its judgment that the parties to
the case have not, in their final submissions, asked it to adjudicate. Second, the Court makes a
finding on a subject which it had no jurisdiction to make under the dispute resolution clause ⎯

Article XXI, paragraph 2⎯ of the 1955Treaty, that clause being the sole basis of the Court’s
jurisdiction in this case once it found that the United States had not violated Article X, paragraph 1,
of the Treaty. Third, even assuming that the Court had the requisite jurisdiction to make the
finding regarding Article XX, paragraph 1 (d), its interpretation of that Article in light of the
international law on the use of force exceeded its jurisdiction. Finally, JudgeBuergenthal
considers that the manner in which the Court anal yses the evidence bearing on its application of

Article XX, paragraph 1 (d), is seriously flawed.

Dissenting opinion of Judge Elaraby

Judge Elaraby voted against the first paragraph of the dispositif , essentially dissenting on

three points.

First, the Court had jurisdiction to rule upon the legality of the use of force. Particularly that
the Court held that the United States use of force cannot be considered as legitimate self-defence in
conformity with the “criteria applicable to th e question” which the Court identified as “the
provisions of the Charter of the United Nations and customary international law”. United States

action amounted to armed reprisals and their illegalit y as such should have been noted. The Court
missed an opportunity to reaffirm and clarify the law on the use of force in all its manifestations.

Second, the Court’s refusal to uphold Iran’s cl aim of a violation of Article X, paragraph 1,
was based on unsound premises in facts and in law. What is relevant is not whether the targeted - 6 -

platforms were producing oil at the time of the attacks, but rather whether Iran as a whole was
producing oil and exporting it to the United States . The test is whether the freedom of commerce
between the territories of the two Parties had be en prejudiced. Once the embargo was imposed,
indirect commerce was allowed and in fact continued. The ordina ry meaning of the Treaty in its
context supports the argument that its purview covers commerce in a broad sense. Also, Article X,

paragraph 1, does not exclude such indirect comm erce. The ten days between the first attack and
the imposition of the embargo would have sufficed to declare that the freedom of commerce was
prejudiced. Hence, the obligation emanating from Article X, paragraph 1, was breached.

Third, the Court was right in ex amining ArticleXX, paragraph1(d) , before ArticleX,
paragraph 1. It had jurisdiction to enhance its contribution to the progressive development of the

law by ruling more exhaustively on the use of force.

Separate opinion of Judge Owada

Judge Owada concurs in the final conclusion of the Court that neither the claims of the

Applicant nor the counter-claim of the Respondent can be upheld, but he is not in a position to
agree to all the points in the dispositif nor with all the reasons leading to the conclusions. For this
reason Judge Owada attaches his separate opinion, focusing only on some salient points.

First, on the question of the basis of the decision of the Court, Judge Owada takes the view
that the Court should have examined ArticleX, paragraph1, prior to ArticleXX, paragraph1(d) .

Article XX, paragraph 1 (d), constitutes a defence on the merits of the claims of the Applicant on
ArticleX, paragraph1, and should for that reason be considered only if and when the Court finds
that there has been a breach of Article X, para graph 1. The Court cannot freely choose the ground
upon which to pass judgment when its jurisdiction is limited to the examination of ArticleX,
paragraph 1.

Second, on the question of the scope of Articl eX, paragraph1, JudgeOwada is in general
agreement with the Judgment, but makes the point that the term “freedom of commerce” as used in
the 1955 Treaty refers to “unimpeded flow of mercantile transaction in goods and services between
the territories of the Contracting Parties” and cannot cover the activities of the oil platforms. Apart
from the factual ground on which the Judgment is based, the Court for this reason cannot uphold

the claim that the “freedom of commerce” in Article X, paragraph 1, has been breached.

Third, on the question of the sc ope of ArticleXX, paragraph1(d) , which in his view the
Court does not have to take up in view of its fi nding on Article X, paragraph 1, Judge Owada is of
the opinion that the interpretation and ap plication of Article XX, paragraph 1 (d) , and the question
of the self-defence under international law in general are not synonymous and that the latter as such

is not the task before the Court. The examination of the latter problem by the Court should be
confined to what is necessary for the interpreta tion and application of Article XX, paragraph 1 (d) ,
in view of the limited scope of the jurisdiction of the Court.

Finally, Judge Owada raises the question of as ymmetry in the production of evidence in this

case, which leads to a difficult situation for the Court in verifying the facts involved. While
accepting the basic principle on evidence, actori incumbit onus probandi, Judge Owada would have
liked to see the Court engage in much more in-dep th probing into the problem of ascertaining the
facts of the case, if necessary proprio motu.

Separate opinion of Judge Simma

Judge Simma starts his separate opinion by explaining why he voted in favour of the first
part of the dispositif of the Judgment even though he agrees with the Court’s treatment of only one - 7 -

of the two issues dealt with therein, namely that of the alleged security interests of the United
States measured against the international law on self-defence. As to the remaining parts of the
dispositif, Judge Simma can neither agree with the Cour t’s decision that the United States attacks
on the oil platforms ultimately did not infringe upon Iran’s Treaty right to respect for its freedom of
commerce with the United States, nor does Judge Simma consider that the way in which the Court

disposed of the so-called “generic” counter-claim of the United States was correct. Rather, in
JudgeSimma’s view this counter-claim ought to have been upheld. Regarding the part of the
dispositif devoted to this counter-claim, JudgeSimma thus had no choice but to dissent. The
reason why Judge Simma did not also dissent from the first part of the dispositif (and prefers to call
his opinion a “separate” and not a “dissenting” one) even though he concurs with the Court’s
decisions on only the first of the two issues decide d therein, is to be seen in a consideration of

judicial policy: Judge Simma welcomes that the Court has taken the opportunity, offered by United
States reliance on Article XX of the 1955 Treaty, to state its view on the legal limits on the use of
force at the moment when these limits find them selves under the greatest stress. Although
JudgeSimma is of the view that the Court has fulf illed what is nothing but its duty in this regard
with inappropriate restraint, Judge Simma does not want to disassociate himself from what after all

does result in a confirmation, albeit too hesitant, of the jus cogens of the United Nations Charter.

Since matters relating to the United States use of force are at the heart of the case,
Judge Simma finds the Judgment’s approach of dealing with Article XX before turning to Article X
of the 1955 Treaty acceptable. On the other hand, what the Court should have had the courage to
do was to restate, and thus to reconfirm, the fundamental principles of the law of the United

Nations as well as customary international law on the use of force in a way conforming to the
standard of vigour and clarity set by the Court already in the Corfu Channel case of half a century
ago. This, unfortunately, the Court has not done.

In Judge Simma’s view the Court could have clarified what kind of defensive

countermeasures would have been available to the United States: in Judge Simma’s view, hostile
military action not reaching the threshold of an ar med attack within the meaning of Article51 of
the United Nations Charter, like that by Iran in the present case, may be countered by proportionate
and immediate defensive measures equally of a m ilitary character. However, the United States
actions against the oil platforms did not qualify as such proportionate countermeasures.

In Judge Simma’s view, the Court’s treatme nt of ArticleX on freedom of commerce
between the territories of the Parties follows a step-by-step approach which he considers correct up
to a certain point but which then turns into wrong directions: first, the platforms attacked in
October 1987 could not lose their protection under Article X through being temporarily inoperative
because, according to Judge Simma, the freedom under the Treaty embraces also the possibility of

commerce in the future. Secondly, according to Judge Simma, the indirect commerce in Iranian oil
going on during the time of the United States emba rgo is also to be regarded as protected by the
Treaty.

Turning to the United States counter-claim, Judge Simma finds the way in which the Court
has dealt with it blatantly inadequate, particul arly with regard to the so-called generic

counter-claim which, in Judge Simma’s view, should have been upheld. Judge Simma then sets out
to develop the arguments, put forward somewhat unpersuasively by the United States, in support of
the generic counter-claim. The fact that in the present instance (unlike in the Nicaragua case), it
was two States which created the situation adve rse to neutral shipping in the Gulf, is not
determinant. According to Judge Simma, all that matters with regard to the generic counter-claim

is that Iran was responsible for a significant portion of the actions impairing the freedom of
commerce and navigation between the two countries; it is not necessary to determine the particular
extent to which Iran was responsible for them. Ne ither could it be argued that all the impediments
to free commerce and navigation which neutral sh ips faced in the Gulf were caused by legitimate
acts of war carried out by the two belligerents, and that therefore neutra l shipping entered the
maritime areas affected by the Gulf war at its own risk. In Judge Simma’s view, Iran’s actions - 8 -

constituted a violation of Article X of the 1955 Treaty; an impediment on the freedom of
commerce and navigation caused by those actions is evidenced by the increase in labour, insurance,
and other costs resulting for the participants in commerce between the countries during the relevant
period.

Judge Simma then turns to refuting the argument that the acts alleged to have constituted an

impediment to the freedom of commerce and navigation under the Treaty cannot be attributed to
Iran with certainty and that therefore it is impo ssible to find Iran responsible for those acts.
JudgeSimma demonstrates that a principle of joint-and-several responsibility can be developed
from domestic legal systems as a general principle of law by which the dilemma in the present case
could have been overcome.

Finally, Judge Simma argues that the so -called “indispensable-third-party” doctrine
consecutively accepted and rejected by the Court’s earlier jurisprudence would not have stood in
the way of accepting the United States counter-claim as well-founded.

Separate opinion of Judge Rigaux

The operative part of the Judgment comprises tw o points: in the second it is concluded that
the counter-claim of the United States of America mu st be rejected; the first is divided into two
parts, the second of which rejects the claim of the Islamic Republic of Iran for reparation while in
the first the American attacks on the oil platforms are held not to have satisfied the requirements of

the applicable provisions of the 1955 Treaty, as in terpreted in the light of international law on the
use of force.

Judge Rigaux voted in favour of the two points in the operative part, with some reservations
as to the first. The two clauses constituting it woul d appear inconsistent: it is a contradiction both
to hold that use of armed force against the oil platforms was unlawful and to reject the claim for

reparation for the injury caused by the unlawful act. However, the Court’s affirmation of the
principle prohibiting the use of armed force except in those situations where contemplated by
international law appeared to Judge Rigaux sufficie ntly important that he felt obliged to vote in
favour of it, notwithstanding the refusal to uphold Iran’s rightful claim.

The reasoning supporting the rejections of the two actions contains two elements common to
them, i.e., the interpretation given to the notion of “indirect” commerce and the idea that “future”
commerce falls outside the scope of freedom of commerce. Judge Rigaux finds those two elements
debatable.

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