IntheNameof God
INTERNATIONALCOURTOFJUSTICE
CASE CONCERNING OIL PLATFORMS
(ISLAMICREPUBLICOFIRANV.
UNITEDSTATES OFAMERICA)
FURTHER RESPONSETOTHEUNITEDSTATES'
COUNTER-CLAIM
Submittedby the
ISLAMIC REPUBLICOFIRAN
Volume1
24 September2001 1
TABLEOFCONTENTS
PaRe
PART1 INTRODUCTION ..........................................................
.........................
CHAPTER1 PRELIMINARYPROCEDURALISSUES ............................
CHAPTERII STRUCTURE OF THISPLEADING ........................3..........
PARTII FACTUALISSUES ........................................................5.
.......................
CHAPTERHI THE GENERAL CONTEXT .................................5......................
Section 1. Introduction..............................................5........
................
Section 2. Iraq's responsibilityfor theconfl.........................6.........
Section3 . Iraq's responsibility forthe tankerw..............................
Section4 . Kuwait andSaudiArabiasupportedIraq ...................1......
Section5 . The United States'disregard of the obligations of a
neutral.................................................15.....
...............
Section 6. Iran's position inthePersian Gul..........................0........
Section 7. Conclusions ..............................................5........
....
CHAPTERIV THE SPECIFICINCIDENTS ...............................2..........
Section 1 Introduction..............................................7..........
....
. .
Section . Specificincidents.........................................9..............
A. TheBridgeton(24 July1987) ......................29..............
B. The TexacoCaribbean(10 August 1987) ...........31......
C. TheSeaIsleCity(16October1987) .................4....
D . TheLucy(15/16November 1987) ..................39...........
E. The EssoFreeport(16November 1987) .................
. ......................................
F The Diane(7February1988) 41
G . TheSamuelB Roberts(1 4 April 1985) .............41.......PARTIII LEGALISSUES ...........................................................
..........................
CHAPTERV JURISDICTIONANDADMISSIBILITY ..............................
Section1. Introduction ...............................................4.............
....
Section 2. Jurisdiction .................................................7..........
....
A. Jurisdictionrationemateriae ........................47.............
B. Jurisdictionrationepersonae ...................................
Section 3. Admissibility ..............................................51............
...........
A. Introduction: issues of admissibility remain
open ................................................51........
.............
B. New claims ........................................52........................
1. The United States' attemptsto inciude
new vessels ...................................52............
2. The United States' attemptto enlargethe
relevant timepenod ...........................53.........
C. The United States'failure properly to speciq
its counter-claim...................................54.....................
D. The United States' lackof standing toespouse
claims..............................................56............
...........
1. U.S.-flaggedvessels .........................-56..............
The Samuel BR . oberts...................6.....
(a)
(b) The Bridgeton and the Sea Isle
City.....................................56....................
2. Non-U.S.-flaggedvessels ......................63...........
E. Thequestion of prior negotiations ...................69..........CHAPTERVI "FREEDOM OF COMMERCE BETWEEN THE
TERRITORIES OF THE TWO HIGH
CONTRACTINGPARTIES"IN THE CONTEXT OF
ARTICLE X(1): IRAN DID NOT BREACH
ARTICLE X(l) OFTHETREATY ..........................1........
Section 1. The allegedIranianattacks on vesselsowned,flagged,
re-flagged or chartered by the United States or its
nationals do not constitutea breach of "fieedom of
commerce" as guaranteed by Article X(1) of the
Treatyof Arnity.......................................71..............................
A. The notion of "fieedom of commerce" as
interpretedbythe Court...........................2.........
B. Military escort cannot be conceived ofas an
activityancillarytomaritime commerce............77...
Section2. The meaning of "betweenthe territories of the two
High Contracting Partiest'in ArtiX(l), with regard
to the United States'counter-claim.....................7.........
Section3. There is no basisfor theUnited States' counter-claims
underArticleX(1)of the TreatyofAmity .................8.......
A. The specific counter-claims: the vessels
allegedly attackedby Iran were not protected
underArticleX(l) ofthe Treaty ofArnit............5..
B. The generic counter-claim:the allegcreation
by ban of conditions that were dangerousand
det.ime.tal to U.S. maritime commerce and
navigation.......................................8.............
CHAPTERVI1 ADDITIONAL LEGAL REASONS EXCLUDING
THE RESPONSIBILITY OF IRAN FOR THE
ALLEGEDATTACKS .....................................91.......................
Section 1. The lawof navalwarfare......................................................
A. The enemyorneutralcharacter of vessel...........9....
1. Parties tothe conflict and neutralStates
duringtheIran-IraqWar .....................9.........
2. Thenationality ofvessel.....................5...... B. Merchantvesselsasmilitarytargets ................9.......
m
C. Mines .........................................10.1...........................
Section2. Consequencesofthebreachof the lawof neutralityby I
the United State.......................................1.3...............
I
Section3. The prohibition ofthe use of force-its impacton the
dutyto paycompensation ...............................106....................
CHAPTERVI11 RESERVATION AS TO FURTHER IRANIAN I
RIGHTSANDCLAIMS ............................................................
PARTIV SUBMISSIONS ........................................................1.3.........................
LISTOFEXHIBITS
CERTIFICATION PART1
INTRODUCTION
1.1 This FurtherResponseto the United States' Counter-Claim is filed in accordance with
the Court'sOrder of 28 August 2001, which has authorized Iran to submit an additional
written pleading.In accordance with the Court'sOrder, this pleading relates solelyto the
United States' counter-claim.
CHAPTER1
PRELIMINARYPROCEDURALISSUES
1.2 At the outset, Iran must raise two proceduralissues, with regardto certain aspectsof
whichIranhas also addressed aseparateletterto the Court.
1.3 The first issue relates to the attemptby the United States to introducenew claims in
the Rejoinder and to reserve the right "to further develop1pertinent facts and arguments"
regarding vessels whichare not even coveredbythe counter-claimas set out in the Rejoinder'.
Iran will show in ChapterV, below, thatthenew clairns that are includedin the Rejoinderare
legallyinadmissibIe2,as would be any future new clairnssuch as those foreshadowedby the
United States'purportedreservationof rights.
1.4 Iran submits moreover that the time hasnow passed for the United States toproduce
any new evidence. If the United Stateshad had any further factsor arguments to develop, it
should havedone so in its Rejoinder, whichwas the United States' final written pleading in
this case. The written phase shouldnow be deemed to be closed,and the Court should refuse
to admitanyfurther evidence in this regard.
1.5 It must be stressed thatthis case doesnot concernrecent or continuing events.On the
contrary, the incidentscomplainedof by the UnitedStates occurred adecadebefore thefiling
I
2 U.S. Rejoinder, para.6.0404.n.
See,Chap.V, Section 3.B, below. m
of the UnitedStates' Counter-MemorialT . herecanbeno excuse forthe United States'failure
properlyto specifi its counter-claimat theoutset.TheUnitedStates' attemptto introducenew Ir
claims atthis final stageof the writtenpleadingsis symptomaticof the lack of seriousness of
the counter-ciaim, whichin Iran's submissionis no more than a bargaining ploy aimedat
I
securing the discontinuanceof the case. Moreoverit prejudices Iran'srightof defence and
shouldnotbecountenancedbythe Court.
m
1.6 Forthesereasons, andfor the reasonsmorefullydeveloped in ChapterV, below,Iran I
has refrained from respondingin detaileither to theUnitedStates' new claims relating to two
additional vesselsor to its threat of newclaimsrelatingtfurthervessels. I
1.7 The secondpreliminaryprocedural issuethatarisesconcemsthe apparent withholding
of evidencebythe United States.
1.8 In its Counter-Memoria13andagain in its Rejoinder4, the United States gives notice
that unidentified"U.S. analysts" will giveexpert evidencein the oral phase of the case
regarding satelliteimagery.Neither theCounter-Memorialnor the Rejoinder, whichwas the
United States' final written pleading inthese proceedings,was however accompaniedby any
writtenreportrelating tosuchexpertevidence.
1.9 In Iran'sview, it is irregular andinappropriate fora party to proceedings beforethe
Courtto cal1expert evidence without the experi tn question(a) beingsufficientlyidentifiedin
advance,withappropriate indicationsof the areaof expertise;and (b) having first presented a
writtenreportinthe regularcourseofthe writtenprocedure.
1.10 In the eventthe United States does seek to introducenew allegations or evidence in
relationto eitherof the abovetwo mattersduringtheoralphaseof the proceedings, and in the
event the Courtshould deem such allegationsor evidence to beadmissible, Iran reserves the
rightto respondthereto bothin the courseof theoralproceedingsand inwriting.
3
4 U.S ..ejoinder,para. 1.52.Counter-Clairn,para. 1.75. CHAPTERII
STRUCTUREOF THISPLEADING
2.1 Iran'sFurtherResponse is divided into fourparts.FolIowingthis introductoryPart 1,
Part II deals with the factual issues. ChapteIrIIplaces the incidents whithe subjectof
the United States'counter-clairnin their proper conte-ta context which the United States
continuesto ignore butwhich is offbndarnentalimportance in considerinthe counter-claim.
Chapter IV consistsof a statementof facts withregard tothe specificincidents relied uponby
the United Statesin its counter-claim, demonstrating that the counter-claiis based upon
mere allegations whichareunsupportedbyevidence.
2.2 PartIIIaddressesthe legalissues raisedbythe counter-claim. Chapter V willealwith
questionsofjurisdiction and admissibility. Chapter I will show that Iran did not breach its
obligation under Article X(1) of the Treaty ofArnity to guarantee freedom of commerce
betweenthe territoriesof the two Parties.In ChapterVII,Iranwill showthat even if the Court
wereto decide(contrary tothe submissions in the preceding Chapters) that the counter-claim
should not be dismissed, there are additional legal reasons which would exclude the
responsibilityof Iran. This is quite apart fromthe reservation concerningconduct "necessary
to protectits essential securityinterests",coveredbyArticleXX(l)(d) of the Treatyof Arnity;
this isdiscussedrieflyin ChapterVIII,where Iran's reservatioonthe pointismaintained.
2.3 Finally, PartV presents Iran's submissions with regard the United States'counter-
claim.
2.4 In additionto the Further Response (Volume 1)there is one volume of evidentiary
materials attachedto thispleading(VolumeII). PARTII
PACTUALISSUES
CHAPTERIII
THEGENERAL CONTEXT
Section 1. Introduction
3.1 TheUnited Statesdefinesits counter-claim in this caseas follows:
"...in attackingvessels in the [Persian] Gulf with mines and missilesand othenvise
engaging in military actionsthat were dangerous and detrimentalto maritime
commerce, the Islamic Republic of Iran breached its obligationto the United States
underArticle X of the 1955Treaty"].
3.2 The substanceofthis counter-claim appearsto havetwoaspects: (i) aseries of specific
claims involving individual vessels; and (ii) a generic claim artan'sleged actions created
conditions that were dangerous and detrimentatlo U.S. maritime commerce and navigation.
3.3 The focus of this Chapter will beon the allegationsof fact pertainingto the generic
claim.ChapterIVwill address the United States' allegationsconcerning the specific incidents.
3.4 With regard to its generic claim, the United States' versionof the relevant factual
background completely fails to take into account the contextof the war, in which Iran was
acting in self-defence against unprovoked aggression from its neighbour, Iraq.
3.5 The United States' presentation avoids nter alia, the followingvital facts. First, the
United States ignores Iraq's responsibilifor the conflictas a whole and the factthat it was
Iraq- and not Iran-which wasresponsiblefor the so-called "tankerwar".Iran was avictim of
I
U.S.Rejoinder,Submissions,p.227 Iraqi aggression andIranwas the main victimof the tankerwar.Iranhad no possible interest
in endangeringthe Persian Gulf,throughwhich nearlyal1itstradepasses.
3.6 Second,the United States accuses Iran of attacking neutralshippingwhile contenting
itself with the plainly false assertion that itwas "clearly a neutral with respectto [the]
confli~t"~I.t thus ignoresits own non-neutral behaviour in the PersianGulf,as well as the fact
that certain States,inparticular Saudi Arabia and Kuwait,were defacto allies of Iraq. The
United States dismisses Iran's discussion ofsuch facts as "diversionaIytactics" which have
"no legaleffecton this casew3O. n the contrary,as Iran willshowbelow,thesefacts are central
to the issues in this case.
3.7 Finally,the United States misrepresents Iran's actions in the Persian Gulfduring the
confiict. In this context, it ignores the evidence submittedby Iran showing that Iran's
commerce was the major sufferer in the conflict, thaIran sought toprotect its commerceby
legitimatemeans,and thatit did not target U.S. vessels.
3.8 Eachof thesepoints willbe addressed below.Asthe Courtwill recall, Iranhas already
set out the relevant background facts in detail in its earlier pleadings. nlythe main points
willbe surnmarisedbelow.
Section 2. Iraq's res~onsibilitv for the conflict
3.9 Iran has discussed insome detail in its earlierpleadingsthe scale and nature ofIraq's
aggression, involving occupation of Iranianterritory and theuseof chemical weapons against
-
civilianpopulations5.
2 Ibid., para. 5.10, h. 316.
3 Ibid., paras. 1.09-1.10and 5.10.
4 See, Iran's Mernorial,Par1, Chaps. II and III; Iran's Observations andSubrnissions on the U.S.
PreliminaryObjection, Annex; andIran's Reply and Defence to CounteC,hap.2.
5 See Iran's Mernorial, paras.1.58-1.74;and Iran's Reply and Defencteo Counter-Claim, paras.2.8-2.14.
See also, ibid., FreedmanReport, paras. 57-66.3.10 Inthiscontextthe followingpoints shouldbe noted:
-
Throughout the conflict Iran called on thS eecurityCouncil to recognisethe
Lraqiaggression, to demand Iraqi withdrawal to intemationally recognised
boundaries,to condemnIraqi chemical weapons attacks, and to condemnIraq's
attacks on shippingin the PersianGulf.
- It was not until 1987, in Resolution598, adoptedunderArticles 39 and40 of
the United NationsCharter,that the Security Council recognised that a breach
ofthepeace had occurred. Iraq's initial attackadoccurred seven yearsearlier6.
-
Subsequent toResolution 598negotiations for acease-firewere pursuedby
Iran until January1988, when Iran'sForeignMinister wrote to the Secretary-
General agreeingto the Secretary-General's cease-fire implementation plan7.
-
Iran had repeatedlywarned that Iraq would fail to abide by its purported
cornmitmentto a cease-fire,and would use the opportunityof any such cease-
fire to repeat and further its aggression against Iran.This is exactly what
happened. Iraq floutedthe cease-fireby (i) canying out further Scud missile
attacks on Iranian cities; (ii) making further incursions intoIranian territory,
and occupying even larger areasthan in its September 1980 invasion; and (iii)
renewing its chemicalattacks on civilianpopulationsg.It was notuntil August
1988 that a cease-firewas established. Iraqi occupatioof Iranianterritory did
notend until August1990whenIraq invadedKuwait.
3.11 The conclusion that Iraqwas fully responsibIefor startingand continuing the conflict
was borne out by the Secretary-General's Report rendered pursuant to paragraph6 of
Resolution 598. Theinclusionof this paragraph in Resolution 598 had consistently beenone
of Iran's main demandsI.tcalledupon the Secretary-General:
6 See, Iran'sMernorial,Exhibit24.
7 See, e.g., Iran's Memorial,paras1.6964-
8 See,ibid .aas. 1.69-1.71. "... to explore, in consultation withIran and Iraq, the questionof entrusting an
impartialbody with inquiring into responsibility forthe conflict and to report to the
SecurityCouncilas soonaspossiblev9.
3.12 As a resultof independent investigations carried out in implementation of paragrap 6h
of Resolution 598,the Secretary-General issued a Report on 9 December 1991 whichplaced
full responsibilityforthe entireconflicton Iraq.The Reportnotedthat:
".. the war between Iran and Iraq, which was goingto be waged for so many years,
was started in contraventionof international law,and violations of international law
give riseto responsibility forthe c~nflict"'~.
It went onto note that thespecificconcernof the internationalcornmunityin this contexw t as
"the illegal useof force andthe disregard for the territorialintegrityof a MemberState"ll.
3.13 The Reportthen gave its finding that the "outstanding event"under these violations
was:
"... the attackof 22 September 1980against Iran, whichcannotbejustified underthe
Charterof the United Nations, any recognized rulesand principles of internationallaw
or any principles of international moralityand entails the responsibility for the
conflict"12.
The Report pointedout that Iraq's explanations for its actiono sn 22 September 1980 "donot
appear sufficient or acceptable to the international co~nrnunity"~a ~nd added that Iraq's
aggression against Iran"which was followed by Iraq'scontinuous occupationof Iranian
territoryduringthe conflict" was "in violation of the prohibitioo nf the use of force, which is
regardedas one of the rules ofjus cogens"I4.Iran'sposition, therefore, was eventuallyfully
vindicated.
9 See, ibid., Exhi24,para. 6.
'O See, ibid., Exhi42,para.5.
II Ibid.
12 Ibid., para.6.
13 Ibid.
14 Ibid., para.7. 3.14 It is significantthat Iraqi responsibility was established in a report rendpursuantto
a Security Council Resolution adoptedunder Articles 39 and 40of the Charter. It is also
significant that the reportdetennined legal responsibility for theentire conflict, arising not
only from the initial act of aggression but alsofromthe subsequent continuousoccupationof
Iranianterritory.
3.15 The Court will recall thatthis was probably theIongestand most destructive conflict
of the secondhalf of the 20" century.The original Iraqi invasion extendedalong a 450-mile
front intoan areacontainingsome 90percent of Iran'soil production.Throughoutthe conflict
Iran's civilian population wassubject to repeated missile and chemical weapon attacks. As
early as 1981 Iran protested Iraq's attacks, and in particular its chemica alttacks, to the
SecurityCouncil. Independent reportsby an expert commission establishedby the Secretary-
GeneraI were issued in 1984, 1985, 1986, 1987 and 1988. Each confirmed Iraqi use of
chemical weapons against military and civilian targets. None found evidence of chemical
attacksby Iran". Casualties sufferedby Iran duringthe courseof the confiictwere enormous,
leaving a legacy of loss and injurywhich is still feltby its people.The overall economic cost
of the war to Iranis incalculable;on highly conservative assumptions, the direcc tost was in
the orderof U.S. $ 1,000billion.
3.16 In Iran'ssubmission, the scale and nature of Iraq's aggressionare fundamental to an
appreciationof this case. As will be seen below,they are legally significant inthe context of
the United States'counter-claim.
Section3. Iraq'sresponsibilitvfor the tankerwar
3.17 Withinthe overall context of an aggression whichIraq started and maintained, it was
also Iraqwhichinitiated and pursued the tankerwar. A Lloyd's Maritime Information Service
report filedby the United States lists some 546 incidents throughoutthe conflictI6.The same
report indicates that morethan 50 Iraqi attacks-andno Iranianattacks - occurred inthe period
from May 1981 untilMay 1984.These Iraqi attackswere against vessels trading with Iran,
15
16 Iran's Memorial,Exhibit1and 12.
U.S.Counter-Mernorial andCounter-Claim, Exhibit9. and included vessels ofvarious nationalities, including Saudi Arabian, British, Liberian,
Panamanianand Iranianflaggedvessels.
3.18 Iraq argued that its attacks werejustified under rules of internationallaw. Iraq's
Permanent Representative at the United Nations stateid n June 1986 Iraq'sposition that the
rulesof international law:
"... permit attackson vessels engaged in acts of trade orunneutral service with a
belligerentin a situationofan armedconflict"".
Iraq alsoarguedthat:
"... liftingIranianoil, and consequently providingIran withfinancial resources which
enableit to continue itsaggression.. .is impermissibletradeunderinternationallaw in
the context of the armedconflictbetweenIranand Iraq"18.
3.19 In response,Irancondemned the Iraqi attacks.Iran's PermanenR t epresentative at the
United Nations called on the international communitty o take steps to secure freedom of
commerceandnavigation in the PersianGulf
"In order to internationalise the war, Iraq has been openlyannouncing its
indiscriminate attacks on unarmed commercial vesselasnd oil tankers in the Persian
Gulf with great pride and has disrupted the peaceand securityof the Persian Gulf,
undermining the freedomof navigation and commerceinthismoststrategic part of the
world, thereby endangering the securityand interests ofnationsintheregion.
On theotherhand,sincethe inceptionof the imposedwar,the Islamic Republicof Iran
has madeevery effortto prevent the spill-over of thewar intothe Persian Gulf, while
maintaining full respect forthe freedom of navigation. 1wishto reiteratethat sincethe
initiationof Iraqi attacks on ships in the Persian Gulf,we have repeatedlyannounced
in international fora the readinessof the Islamic RepublicofIran toCO-operatein every
possible way with the Secretary-Generalof the United Nationsandforother relevant
international organisations in securing the freedom ofnavigationin and the securityof
the PersianGulf Il9.
"
18 See,U.S.Counter-Mernorial andCounter-Claim,Exhibit2, p.29.
19 Ibid.
Ibid.p.30. 3.20 In the event, as Sir Anthony Parsons,then British Permanent Representative at the
United Nations, has noted:
"...there was no specific, international condemnationof the Iraqi attacks andno
seriousattempts madeto persuade or coerceIraqinto desisting fromthem"".
Proposals forcondemnationof Iraqi attacks and for multilaterao lr U.N.-sponsoredefforts to
protect shipping foundered because it was felt that Security Council approval would nob te
forthcoming.The cardinal reason for thiswas U.S. opposition.Javier Perezde Cuellar,then
Secretary-General, notedthat the United States was "unremittingly hostile to Iran, and
therefore itwas not inclined to supportanySecurity Council action that mighb te favorableto
TehranV2'.
3.21 Iraq wasresponsible forbringing the war to the Persian Gulf, and responsibility was
attributedto Iraqat al1stages of the conflict for thevast majority of attacks.A number of
characteristicsof theseattacksshouldbehighlighted:
-
Iraqi attacks were carried out irrespectiveof the flag of the vessel.Vesselsof
many differentflags are knownto have been attackedby Iraq, including Saudi
and Kuwaiti flagged vessels andeven a U.S. warship,the U.S.S.Stark?'.
- Iraq'sattacks occurred throughout the Persian Gulf, and no jtst in areas close
toIranianportsz3.
- Iraq had weaponscapableof causing massive destruction, including Silkworm
missilesz4.
20 Iran'sObservations and Submissionson theU.S. PreliminaryObjection, Exhibit 16,p. 19.
21 Iran'sReplyand Defenceto Counter-Claim,Exhibit6, p. 178.
22 Iran's Replyand Defenceto Counter-Claim, paras.et seq.
23 Ibid.
24 Ibid.,paras.4.57etseq. - The vast majorityof attacks thatoccurredin the tankerwar - especiallythose
causinganysubstantial darnage - involved attacks againstIranianshippingand
vessels tradingwith Iran. It was commerce with Iran which was the prime
targetofthe tankerwa?.
3.22 As noted above, Iran on several occasions called on the internationalcornrnunityto
take action againstIraqiattacksin the Persian Gulf. As SirAnthonyParsons also noted,"Iran
had no interest in endangeringthe sea lanes through which al1her exports and most ofher
importspassedNZT 6.his viewis reflectedby othercommentators:
".. the Iraniansare the party most interested inkeepingthe [Persian]Gulf open to
tankers...The United States could do far moreto paci&the [Persian] Gulf, if that is
what itreallywantsto do, by persuadingIraq to stop its attacks onIranian shipping,
whichare what startedandperpetuatethe naval warinthe [Persian]Gulf'".
Section 4. Kuwait andSaudi Arabia supported Iraq
3.23 It is a matterof notoriousfact that both Kuwait and Saudi Arabia supportedIraqin its
aggression againstIran, and Iran has cited substantial evidenceto confirm this, including
statementsby seniorU.S. officiais.For exarnple,a November 1987Reportto the U.S. Senate
Committeeon Foreign Relations noted that Kuwait had "chosento serve asIraq'sentrepotand
thus as itsde factoally"28.hesameReportgoesonto note:
"Kuwaitpermittedthe use of its airspace for Iraqi sorties againsItran, agreed to open
its ports andtemtory for the transshipment of war materiel (mostly of French and
Soviet origin), and joined with the Saudis in providing billionsof dollars in oil
revenuesto helpfinancethe Iraqiwar effort.In clearand unmistalcableterms, Kuwait
took sides"".
25 Ibid .aras. 2.1etseq.
26 Iran'sObservationsand Submissionson the U.S.PrelirninaryObjection,Exhibit 16,pp. 19-20.
27 See, Iran'sMernorial,Exhibit34.
2s Ibid .xhibit28,p.27.
29 Ibid ..37. Onecornmentatorstatesthat there were "500 to1000heavytrucks adaycartinggoodsto Iraq"
fiom Kuwait30.
3.24 Kuwait's andSaudiArabia's support was notjust economic in nature.These countries
also regularly allowed theuse of their temtory by Iraqimilitary forces.As noted above, the
Senate Report refersto the use of Kuwaiti airspace for Iraqi attacks. Iran has submitted
substantial evidenceshowingthe use of Kuwait'sBubiyan island and Kuwaiti interna1waters,
ports and airbasesby Iraqi forces3'.SaudiArabiaalsoallowedIraqimilitaryaircraftto reîuel
in its tedo$'. Cordesmanand Wagner,two U.S. commentators,notethat Kuwait "seemsto
have allowed the Iraqi Navyto send small shipsdownthe Sebiyehwatenvaybetween Kuwait
and Bubiyan Island" and thus gain access to thePersianGulf'.Thereare nurnerous references
to Saudi Arabia providingAWACS intelligencereportsto Iraq3"Saudi Arabian forces even
took part activelyin the fighting.In 1984, apparently using U.S. intelligencd eata, the Saudi
airforcedowned anIranianfighte?'.
3.25 Saudi Arabia andKuwait also providedmassivefinancial aid to Iraqfor its wax- effort
and undertheWarReliefCnide Oil Agreementcommittedthemselves toprovidingto Iraq the
proceeds of neutralzone cnide salesJ6.Bythe end of the war"Baghdadowed the best part of
100billion dollars to the oil-richArabstates whichhadfinanced [its] wareffortf13'.
3.26 These States werealso direct or indirect suppliers ofarms to Iraq. Inter alia, Saudi
Arabia paid forfive Super Etendardjet fightersdelivered to Iraqby France.Both Kuwait and
SaudiArabia guaranteedthe performanceof foreign companies' defencc eontractswith Iraq3'.
The Report to the Senate Committee cited above refers to Kuwaitiports being used for
Iran's Replyand Defenceto Counter-Clairn,Exhibit4, p. 77.
See, ibid.,Statementof Gen. Fadavi,pp. 4-8.
See, ibid.,p. 8;and U.S.Counter-Memorialand Counter-Cla, xhibit 1,p. 23.
Iran'sObservationsand Submissionson the US. PreliminaryObjection,Exhibit 18,p. 278.
See, Iran's Replyand Defenceto Counter-Claim,FreedrnanReport,para.25(F).
Walker, G.K., "The Tanker War 1980-1988:Law and Policy", InternationalLaw Studies, Vol. 74,
2000,p. 53.See, Exhibit 1.
See, Iran's Mernori, xhibits25, 26 and 27, p. 105.
Iran's Reply and Defence to Counter-Claim, Exhibit 1, p. 55. Claims relating to some of these
arrangements have been thesubject of decisions rendered by the United Nations Compensation
Commission.See, Exhibit2.
Walker,op.cit.p. 47. See, E'xhibit1. transhipment of war material. Moreovers,everal States in theregion were known to have
issued end-user certificates forilitarymaterialin fact destinedfor Iraq. Evidenceproduced
in the Scott Report, an independent judiciaelnquiry into theBritish Government's arms sales
practiceto Iraqduringthis period,confirmsthis:
"...theIraqishave no problems overobtai~ngequipmentthanksto the willingnessof
countriessuchas SaudiArabiaand Jordanto actasthenotionalend-user.
An SISReport dated13November1986reportedinformation that end-user certificates
had been supplied by Abu Dhabi (6 shipments), Jordan (11 shipments), Oman and
Saudi-Arabia(1shipment)for munitionswhichhadbeenpassed on to Iraqw3'.
In other words,not only were proceeds fiom thecommercialmaritime trade of anumberof
Persian Gulf States being used to finance thIeraqi war effort, but also there wassignificant
trade in military equipmentgoingto the portsof thesecountries, but destined ultimately for
Iraq.Again,the UnitedStatesis carefùlto avoidconsiderationoftheseissues.
3.27 Kuwait has repeatedly acknowledgea dnd publiclyapologizedfor its support ofIraq in
the war.Inan interviewin September 1994,Kuwait's Foreign Minister stated:
"1would like to usethis opportunityforusto askIranpublicly.. .for forgiveness forus
having supported Iraq inthe war againstIran fiom 1980to 1988. We committed a
greaterrorthenW4'.
Earlier,in August 1990on a visitto Tehran, theForeignMinister had expressed regret for the
position taken by his Governmentin the war, as well asfor the resolutions adoptedby the
Gulf Cooperation Council atthe time, whichhe deplored and confirmedhadbeen madeunder
pressurefromIraq.A similarmessage wasgivenin 1992byanother Kuwaitiofficia14'.
39 Iran'sReplyand Defence toCounter-Claim,Exhi5,para. E2.14.
40 Ibid E,,hibit13.
41 Ibid. Section5. The United States'disre~ardoftheobli~ationsof a neutral
3.28 Notwithstanding Iraq's responsibility for the war and the nature of itsattacks in the
Persian Gulf,the UnitedStates supportedIraqboth in thewarand in its actions inthe Persian
Gulf. The United States adopted this position despite its profession of neutralityin the
conflict.
3.29 It is well known, and widely confirmed by a variety of sources, including U.S.
officiais, that the United States supportedIraq diplomatically, politically, economically and
militarily, whileat the sarne time taking increasinglyhostile actions against IranThe United
Statesalso assistedIraqin the tanker war.
3.30 Diulomatic and political support: The United States supportedIraq in the Security
Council and elsewhere. As noted above, in the Security Councilit opposed al1attempts to
identiQ Iraq as the aggressoror in any way to blarneIraq either for refusing to withdraw to
intemationally recognisedboundaries, or for its actionsin the tanker war,or for its use of
chemical weapons4'.TheUnited Statesalso actedto rehabilitate Iraqbytakingit off its listof
States supporting terrorismin 1982andbyresumingfull diplornaticrelations with it in 198443.
For the U.S.Defense Department'sDirectorfor Counter-Terronsm, there was no doubtabout
Iraq'scontinued involvement in terrorism. The true reason for removing Iraqfrom the list
"was to help[Iraq] succeed in the war againstIranuu.Under U.S. law, the removal ofIraq
from the list of States supporting terrorism and the renewal of fulldiplomatic relations
allowed an increase intrade with Iraq, the grantingof large U.S. financialcredits, and the
exportto Iraqof dual-useequipment.
3.31 Econornic assistance:As a result, trade between the United States and Iraq increased
substantiallyduring the course of the war. Between1983 and 1989, tradebetween the two
countries grewfrom $571 million to $3.6 billion4'.Substantial U.S.Export-Import(EXIM)
42 See,also, Iran'sObservations and SubmissionsoU.Se. relirninaryObjection, Annex,para. 10;and
Iran'sReplyand Defenceto Counter-Clairn,FreedmanReport, para.).
43 Ibid para.25(A)and(G).
44 Iran'sReplyand Defenceto Counter-Clairn,Exhibit7.
45 Ibid. Bank and Comrnodity CreditCorporationcreditswerealsograntedto enableIraqi purchase of
U.S. goods, andas much as $730 million ofdirectexports of sensitive dual-usetechnology
oc~urred~~.
3.32 Militarv assistance: The United States also provided direct and indirect military
assistanceto Iraq. This included sharing of intelligenceinformation,joint military briefings
and providing assistance to Iraqin obtainingweapons fromthird countries.These facts have
alreadybeenreferred to inIran'spleadings andhave notbeen contestedby the United States47.
The intelligence-sharing arrangementhas been referredto explicitlyin U.S. Congressional
Records, its purpose being descnbed there as to provideIraq with"intelligence andadvice
with respect tothe pursuit of the ~ar"~~T . he AWACSassistance, eitherdirect or through
Saudi Arabia, is also well-atte~ted~~ T.he U.S.-supplieddata was said to include satellite
reconnaissance photos of strategic Iraniansitesfor targetingbombing raids, dataon Iranianair
force and troop positions, communicationsintercepts, andother vital military information50.
One commentator notes thatIraqreceived:
"...reports every 12 hours onthe Iranianmilitaryactivity on the ground - culled fiom
the information gatheredfiom the many Amencansatellites orbiting the [Persian] Gulf
and from the ArnericanAwacs - which werepassed on to Baghdadvia Riyadh. This
information played a vital role in aiding the effectivenessof th oeperationsmountedby
Baghdadw5'.
These facts are confirmedby Iraqi sources". They have also been confirmed under oath in
judicial proceedings in the UnitedStates by HowardTeicher, a staff memberof the U.S.
National SecurityCouncilfrom 1982to1987:
"CL4 Director Casey personally spearheaded the effort to ensure that Iraq had
sufficient militaryweapons, ammunition and vehicles to avoid losing the Iran-Iraq
war... the United States actively supported theIraqiwar effortby supplying the Iraqis
with billions of dollarsof credits,by providing U.S. military intelligence andadviceto
46 Ibid., Freedman Report, para.25(B), (C) and (D).
47 See, e.g., Iran'sObservations and Submissionson the U.S.PreliminaryObjection, Annex, para. 12.
48 Iran'sMemorial, Exhibit47.
49 Iran's Reply and Defence to Counter-Claim, Exhib4,p. 120. See, also, ibid., Freedman Report,
para. 25(F).
50 Ibid., Exhibit 8,p. 46.
JI Ibid., Exhibit4, p. 160.
52 Ibid., Exhibit 9. the Iraqis,and by closely monitoring third country arms sales toIraqto make sure that
Iraq had the miIitary weaponry required. The United States aiso providedstrategic
operationaladviceto the Iraqisto better use theirassetsincombatvs3.
3.33 Arms sales: Apart fiom military and intelligence assistance, observers aiso confirm
that the United Statesspecificallyencouragedarms salesto Iraq. One author reports asenior
U.S. diplomat in Baghdad proposing that there be a "covert selective lifting"of U.S.
"restrictions onhird-partytransfers of U.S.-licensedmilitary equipmentto IraquSJA . ccording
to thesarneauthor such arms apparently were receivedby Iraq fiom Egypt, Jordan, Kuwait
and Saudi Arabiaand "[almongthe weaponsso supplied wereTOW anti-tankmissiles, Huey
helicopters, small arms, mortars, and one-ton MK-84bomb~"~~ A.t the same time as it was
pursuing this policy of supportfor Iraq, the United Stateshad put into place Operation
Staunch againstIran inthe springof 1983.The aimof this policy was to stopor discourageal1
third States as faras possible from sellingarms to Iran.CasparWeinberger,then Secretaryof
Defense, confirmedthat the aim of this policy was to limitIran's"ability to secure weapons,
ammunition,andothers~pplies"~~ A.l1suchactionsbythe United States have to be considered
in the lightof the fact that Iran was the victiof aggression and thatIraq was responsiblefor
the conflict.At a minimum, the United States had the obligationto act neutrally to treat each
belligerent equally andimpartially.It manifestly failedto do so.
3.34 U.S. actions in the PersianGulf The United States directly supported Iraqi attacks in
the PersianGulf:
- m, thereis evidencethat the Iraqi policy oftakingthe warto the PersianGulf
was instigatedby the United States. As one authornotes:
"Americanforeign-policy specialists helpedIraq evolve the strategythat came
to beknownas 'the tanker war', arguing forcefully for Iraq atitacks on shipping
to andfiom Irann5'.
53
Ibid., Exhibit 10, para. 7. This statement was filed in an action before the Florida DistrictCourt. The
United States, which was a party to the action, challenged Mr. Teicher's statementlargely on the
54 prounds ofits irrelevanceto that action.
55 Ibid., Exhibit8, p. 45.
56 Ibid.
57 See, ibid., Exhibit 11,p. 1449.
Iran's Replyand Defence to Counter-Claim, Exhibit 3, p. 166. See, also, ibid., Freedman Report,
para. 19,n.17. Second,the United States assistedIraq inspecificattacks on vessels:
"What happened ... was that as the Iraqis flew their airplanesdown the
[Persian] Gulf, they would talkto our oficers. As the relationshipgrew on a
daily basis, thepetty officerswouldgive them thebearings and rangeof tankers
that were trading with Iran, thushelping the Iraqisto choose theirtarget~"~~.
Iran has submitted the text of various intercepted communications between
Iraqi and U.S. forces which confirm this, together withdetails of vessels that
were attackedbythe Iraqi forces as a resultS9.
- Third, as noted above, the United States opposedany attempt by the
internationalcommunityto condemnIraqforits attacks.
The main effectof suchU.S. policy wasto damageIraniancommerce.In such circumstances
it isquiteextraordinaryfor the United Statesto seekto bringa claim in this Court concerning
Iran's allegedimpedingof Iranian-U.S.commerce.
3.35 The United States appeared tojustifj Iraqi attacks on the basis that international
shipping trading with Iran was a legitimate military target. Professor Freedman refers to
President Reagan's statement in 1984that "theenemy'scommerce andtrade is a fair target",
contrastingthatwith attackson vessels trading with "neutrals"like Saudi Arabia andKuwait60.
This stance explains why the United States wouldnot support multilateral efforts to protect
international shipping, such as the proposa1to allow reflaggingunder the flagof the United
58 Friedman,A., Spider'sWeb -Bush,Saddam, Thatcher and the DecadeofDeceit,p. 41. See, Exhibit3.
59 See, Iran'sReplyand Defenceto Counter-Clairn,Statementof Col. Rezai and relatedannexes;see, also,
ibid., Statementof Gen. Fadavi, para. 25 andAnnexH.
60 Iran's Replyand Defence to Counter-Claim, FreedmanReport,para. 71. President Reagan'sdistinction I
between vesselstrading with the belligerents andvessels trading with Kuwaitand Saudi Arabias,
however,spurious. As shown above, Kuwaitand Saudi Arabia were alliesof Iraq, directlysupporting
Iraq'saggression,and both countrieswere exportingoil onbehalfof Iraq and wereallowing theirports I
to be usedfor Iraqisupplies. Nations6'.Any such protection would have hinderedIraq'sattacks on shipping trading with
Iran.
3.36 In this context the United States'decision to reflag Kuwaiti tankerscan be seen as
another exampleof supportby the UnitedStates for Iraq.This has been recognisedby senior
U.S. oficials. The Assistant Secretaryof Defense at the time noted thatin reflagging Kuwaiti
ships theUnited States "becamede facto allies of Iraq"6. enator SamNunn,Chairmanof the
SenateArmedServicesCornmittee,madethe sarnepoint, notingas follows with regard to the
Administration'sclaim that reflaggingwas designed to ensure the free flow of oil and to
promote freedomof navigation:
"1.ensuringthe free flow of oil to protectU.S. andworld supplv - but the free flowof
Persian Gulf oil is not now being seriously challenged. Only about 1 percent of
[Persian] Gulf shipping has been disrupted. In addition, Iranexports more oil than
Kuwait, yet the United States has not expressed concem about the frf elow of Iranian
oil.
2. promotinn freedom of navigation - but the challenges to freedomof navigation
originate with Kuwait'sally Iraq. It is difficulttoustifi U.S. actionson this principle
when America is indirectly protectingthe interests of Iraq whostartedthe 'tankerwar'
and who has conducted about 70 percent of the ship attacks, including attacks on
vesselsof America's allies"63.
As oneCongressman noted in considering U.S. reflaggingpolicy:
"The realityis that not only we are tilting toward Iraq, but we are trying to help Iraq
winthe sea warby guarding Iraqi and KuwaitishippingWa.
3.37 The United States also took military action against Iran. Here intimidation and direct
action were used. On countless occasions, U.S. military forces violated Iran's territorial
sovereignty, infringed its airspaceand intercepted its aircraft and naval vessels in violatinf
international lad5. The United States also carried out electronic jarnming of Iran's
61 ProfessorFreedmanrefersto the proposais to provide international protectionto shippingor reflagging
undera U.N. flaIbid para. 55.
62 Iran'sMernorial,Exhibit51.
63 Ibid .,hibit32, p. 1467.
64 Iran'sReplyand Defenceto Counter-Claim,Exhibit 12,p. 107.
65 See,Iran's Mernorial,Exhi3i1. cornrnunicationswhile at the sarnetirneopenly communicatingwith Iraqi forcesengagedin
attacks against~hipping~~.
3.38 U.S. officia1recomition of su~port for Iraq: U.S. policy was not determined by
concerns for international shippingor fieedomof navigation. Rather,it waspartof anoverail
policy of support forIraq, about whichU.S. officials have been explicit.In general terms,
Mr. H. Kissinger has statedfianklyandwith characteristic reaiism tha" tthe Reaganand Bush
administrations supported Iraq againstIran"67 In July 1987,a U.S. spokesmanadrnittedthat
the United States had "an important stakein Iraq's continuing abilitto sustainits defenseP8.
Vice-President Bush stated thatat the time, the United States was lookingfor means "to
bolster Iraq's ability and resolveto withstand Iranian atta~ks"~~ A.ssistant Secretary Korb
noted thatin reflagging Kuwaiti vesselsthe United Stateshadahidden agenda:
"...when wewentin,we wantedto ensurethat Iran didn't win thaw t arfiom Iraq. That
was Ourreal objective, andso wewere doinga lot of things to ensurethat we could
teach theIraniansa les~on"'~.
Suchstatementsby U.S. officialsareof particular probative value in this case T.hey stand in
complete contrat with the UnitedStates'professionsof neutrality in itspleadingsbefore this
Court.
Section6. Iran's positionin thePersianGulf
3.39 By way of background toits counter-claim,the United Statesmakes the following
specific assertions aboutIran'sactions in the PersianGulf:
-
Thatthe internationalcommunityrepeatedly condernned allegedIranianattacks
on vessels tradinginthePersian Gulf;
66
See, ibid., and Exhibit 48see,also, Iran's Reply and Defence to Counter-Claim, Statement of
67 Col. Rezai.
68 Iran's Mernorial,Exhibit45.
69 Ibid., Exhibit49, p. 66.
70 Ibid., Exhibit51.. - That Iran'soficials acknowledgedcarryingoutsuchattacks;
-
Thatvariouspress reports confirm Iran's responsibilitfor suchattacks;
- That Iran deliberatelytargetedneutralvesselsandspecifically U.S. vessels.
3.40 With regard tothe international community's attitude to the tanker war, as noted
above,Kuwaithas stated thatthe Gulf Cooperation Council onlycondemned Iranat the time
under pressurefiom Iraq, and Kuwait hassubsequentlyrepeatedly apologised to Iran foi rts
support ofIraq7'.Furthermore,no State has brought any claim or action against Iran asa result
of Iran's alleged attacks.
3.41 As also notedabove, Iran on several occasions called for internationae lfforts to end
Iraq'shostile actionsin the PersianGulf or at least for condemnation of such attacks. Iran
itself hadno interest in a tanker wa- it had more to losethan anyoneelse. However,there
wasno SecurityCouncil condemnation of attacksbyIraq.
3.42 The United States alleges thatvarious Iranian officials admitted responsibility for
carrying out attacks in the Persian Gulf. Irandenies that the statementsof such officials, if
readcarefully andin their original language, reflectsuchan admission.Suchstatementshave
to be understoodin context.Theywere made at prayer meetings oirn radio interviews for the
home audience at atime when there was a major threatto Iran'stemtorial integrity and when
Iran's civilian population was itselfderattack.
3.43 The only document producedby the United States inthis regard which appearsto be
more specific is an interna1Nonvegian communication reporting upon a conversation that
allegedly occurred between Mr. Sheikoleslam, Iran's DeputyForeignMinisterin 1988,and the
Norwegian Ambassador7*R . efemng to that communication,Mr. Sheikoleslam has attested
71
72 See,para.3.27, above.
U.S.Rejoinder, Exhibit198.that, while having no recollection of the discussion reported in the Norwegian
communication, his colleague Mr.Kamyab didmeetwith theArnbassador afew daysearliern.
The minutes of thatmeetingare attachedto Mr. Sheikoleslam's affidavit.Theyshowthat the
tone of the meeting was fkiendlyand that, farfiom claiming responsibility for attacks on
neutral vessels,Mr. Kamyabexpressed regret forthe killingof the captainof a Nonvegian
vesselby haqi forces. Mr.Sheikoleslamfbrtherstates that hewouldnot,andto the best of his
recollection didnot, expressly orby implication, acceptanyresponsibilityon the part of Iran
forany attacksonneutral shipping.
3.44 With regardto the U.S. assertion that Irantargetedneutral vesselsand that various
press reportsconfirmIran'sresponsibilityfor such incidents, the following generaclomments
shouldbenoted:
- m, asshown above, Iraq was responsible for the tanker war, and any
hindrance of commercein the Persian Gulf was recognised to beagainstIran's
interests.
- Second,byfar the greatestsufferersin the tankerwarwereIranianvessels and
vessels trading with Iran.
- Third,Iranwas engaged in extensive stop-and-search activities throughout the
war in orderto stop theillegaltransport of goods destined director indirectly
for Iraq74.These actions were consistentwith international law and were
recognisedto be so7'.Inmany instances vessels resisted stop-and-search I.
somecases, Iranianforces were ableto arrestandsearch the vesselin question.
In others, althoughthe vessel did not show that the goods were destinedfor
Iraq, it wasknown that Iraq was the "end-~ser"~~ O.ne authornotes that in a
73 See,Exhibit4.
74
75 See, Iran's ReplyDefence to Counter-Claim, Statemenotf Gen. Fadavi. 3-39.3
For the U.S. attitude, see, Iran's Replyand Defence toCounter-Claim, FreedmanReport, para.34,
76 fn .8.
See, Iran'sObservations and Submison the U.S.PreliminaryObjection,AM~X,para. 28; see, also,
Iran'sReplyand Defence toCounter-Claim,Statementof Gen. Fadavi, paras. 33-39. periodof 18months Iran had searchedover 1200 vesselsand seized the cargo
of thirty7'.
- Fourth,even the tables alleging attacksby Iran attached tothe U.S. pleadings
showthatout of 230 allegedIranianattacks,inover halfof these no damageor
only ver- slight darnage was caused.In almost200 cases there is no evidence
of anyserious injuries. Thereare onlya handfulof allegationsof vessels being
severelydamaged as a result of alleged Iranianattacks7*E. xhibits filed with the
United States'Counter-Memorial confirmthat Iran neither had the weaponry
northe intentionto inflict majordarnage onother vessels:
"[Theair launched missilesused by Iran]are.. . of little use against large ships
and can be fired only by day. At sea. the Iraqis had weauons of destruction,
whilethe Iranians had only weaponsof harassment.. . The Iranian navydid not
have manyships suitablefor the attackofrner~hantrnen"'~.
Fiflh,overalIthe United Statesfattitudeto theconflictcontributed significantly
to the tendencyof vesselsnot to allowlawfulstop-and-searchactivitiesby Iran.
By its presence in the Persian Gulfand by its interferencewith Iranian naval
forces,the United Statesobstructed Iran in the exerciseof rights which were
lawful both in terms of thejus ad belltlmand thejtrs in bello. The tables of
alleged Iranianattacks failto makeanydistinctionon this basis.
3.45 TheUnitedStatescontinues to assertthat Iranmadeuse of oil platforms in the Persian
Gulf for purposesof canying out attacks on vessels.In this context itseeks to attach great
significanceto an operationplan found on the IranAjr, whichit alleges shows that Iran was
using the platforms for these purposesgOT . he United States appears not tohave read the
document inquestion.The document is in fact an operationplan (or contingencyplan) stating
what actions are to be taken by Iranian forces in the event that foreign forces, in
77 Iran'sMemorial,Exhibit30.
78
See, Iran'sObservationsand Submissions on the U.S. PreliminaryObjection, Annex, para. 29. At least
70 percent of al1attacks were, accordingU.S. sources themselves,attributed to Iraq. See, Iran's
79 Memorial,Exhibit32, p1467.
80 U.S.Counter-Memorialand Counter-Claim,Exhibit 18,pp.5-6;emphasisin original.
U.S. Rejoinder,Exhibit203.particular U.S. forces, wereto join Iraq by attacking Iranian islands and oil production
facilitiesin the Persian Gulf. The document is not an operation order, which calls for
effective, specific actionto cany out an operationplan. This terminology is well recognised
and is identicalto the terminology usedby theUnitedStates in its military manuals8'.
3.46 It was in the context of this contingencyplan that the oil platformswhich rnightbe
subjectto attack were to reporton such matters as the movement of foreign vessels in their
vicinity, enemy mine-laying activity,steps to occupythe oil-producing areas or any direct
attackS2.
3.47 The United Statesmilitary no doubt has contingency plans evenin peacetime for
innumerable hypothetical eventualities, most of which are unlikely ever to occur. The
justification for Iran havingsuch a contingencyplan wassubsequently borne out:the United
Statesdidattack Iranianoil-producing facilities.
3.48 In any event, none of the vessels which are referredto in the United States'counter-
claimis allegedto have beenattackedfromtheplatformsS3.
3.49 Finally,the United States asserts that Iranspecificallytargeted U.S. vessels or vessels
in which the United States hadan interest. The allegedattacks on the Bridgeton, Sea Isle Ci@
andSamuelB.Roberts -the onlythree U.S.-flaggedvesselsabout whichthe United States has
attemptedto make such an allegation - will be discussedin the next Chapter. It is relevant
however to recall here the testimony of the Commanderof the U.S.S.Sides, who was in
chargeof a U.S.navyvesselin the Persian Gulfatthesametime astheseincidents tookplace:
81 See, Exhibit5.
82 See, U.S. Rejoinder,Exhibit203, pp. 23-24.
83 The United States has alleged three specificattacks on vessels frorn the platforms, against the
Chaumont,the Berge Kingand the Stelios. Iran has alreadydealt with thealleged incident involvingthe
Chazimontand the alleged use of the platforms by helicopters in its Replyand Defence to Counter-
Clairn,at paras. 3.74-3.88.The United Stateshas failed torespond to the evidence submittedby Iran.
With regard to theBerge King and Stelios, Iran denies such attacks and is submitting herewith
Operational and IntelligenceReports for thedaysquestion, which confirm thatthere was no Iranian
helicopter activityinthe relevant zones(Ex6).Bywayof cornparison,similardocuments for other
dates,also attachedinxhibit6, do report upon helicopteractivity.Inany event,there is no evidenceof
anydamageto either vessel. "Myexperience wasthat the conductof Iranianmilitaryforces.. .was pointedlynon-
threatening'ln4.
Section7. Conclusions
3.50 The United States' counter-claim is based on a fundamental contradictioni:t seeks to
blameIran forhm doneto commercein the Persian Gulf, whenal1sourcesagreethat it was
Iraq whichwasresponsiblefor the situation. Iran's own commerce was the main victimT . his
situationwas exacerbatedby the activitiesof purportedlyneutralStates, includingthe United
States itself, which actedin a non-neutralmanner by providing massive supportto Iraq in
variousfoms. Suchsupportincluded assistanceto Iraqin attackson commerce.
3.51 Moreover,as the abovediscussion has shown,duringthe relevant time periodIranwas
fightinga defensive war against aggression on a massive scale.This war had been startedby
Iraq, andhad also been carriedinto the Persian Gulfby Iraq. By contrast, the United States'
Rejoinder presentsthe matter totally out of context andin a manner which bears no
relationshipto the facts.The United States discusses the events for which it trie ts attribute
responsibilityto Iranas if they hadtakenplace in peacetime,andnot in the contextof a major
war whereIran was defending itself and its people.It fails to take into account the fact that
where thereis sucha conflict,commercial activitiesmustinevitably sufferdisruptionand run
certain riskss5.
3.52 The United States also fails even to envisage the attribution to Iraq of any
responsibility whatsoeverfor the conditions arisingout of the existenceof a state of war. For
example, it seeks to attribute to Iran al1responsibilityfor a rise in the cost of war risk
insurance - despitethe fact that it was Iraq which started the warw , hich carried it into the
Persian Gulf, andwhich has sincebeen declared responsiblei ,n a reportbythe United Nations
Secretary-General,for the entireconflictS6.
84 Iran'sMemorial,Exhibit 55.
85 In this context, it is quite inapp-and even shockin;-for the United States to try to draw an
analogy between mines that were allegedly laid by Iran in a time of conflict and its own mining in
peacetimeofNicaraguan intemal watersand territoriaSeea,.S. Rejoinder, paras.6.18-6.19.
86 See Iran'sMemorial, Exhibit42. 3.53 Finally,ashasbeennotedabove,Kuwaithasapologisedpubliclyto Iraf or its support
of Iraqduring the war. Although in its writtenpleadings the United States has repeatedly
asserted that it was a neutral in the conflictMs. M. Albright, when Secretary of State,
remarked that:
"...aspects of U.S. policy towards Iraq, during its conflictwith Irappearnow to
have been regrettablyshortsighted, especiailyin light of our subsequent experiences
withSaddamHus~ein"~'.
While falling far shortof an apology such as those given by Kuwait, this statement is
significant.The implicit acknowledgement thaitt contains,confirrningthat the United States
did not actas aneutraiin the conflict, mustbe takeninto accountin anyconsideration of the
United States'ounter-claim.
87
See, U.S.Rejoinder,par.OSt,h11. CHAPTERIV
THE SPECIFICINCIDENTS
Section1. Introduction
4.1 In its Counter-Memorialand Counter-Claimfiled on 23 June 1997, theUnited States
referred to seven specific vesselslegedlyattackedbyIran'.Thesewere:
1. The Bridgeton(24 July 1987)
2. The TexacoCaribbean(10August 1987)
3. TheSeaIsleCis,(16October1987)
4. TheLucy(1 5or 16November 1987)
5. TheEssoFreeport(16 November 1987)
6. TheDiane(7 February 1988)
7. TheSamuel B. Roberts (14 April 1988)
4.2 Iran will address in thisChapterthe relevant factsin relation toeach of these incidents.
It is submittedthat in eachcase the relevant questions arethe following:(i) the extent, if any,
of U.S. interests inthe vessel in question; (ii) whether thesel was engaged in commerce
between Iran andthe United States; and (iii) whether there isany sufficient basis to support
the U.S. allegations that Iranwas responsible for attackingevessels.
4.3 The following factualdiscussion is without prejudiceto the legal arguments made in
subsequent Chapters, whereit will be shown that (i) the claims basedon these incidents are
eitheroutside the jurisdiction of the Court in this caseor are inadmissible; (ii)none of the
vesselsapartfromthe TexacoCaribbeanwasengagedinTreaty-protectedcommerce; and(iii)
in any event Irancannotbeheld responsible forsuchattacks.
1
Theseincidentsarelistedatpara.6.08 of theU.S.Counter-Mal dCounter-Clairn. 4.4 It is the incidents listedinparagraph4.1, above,andtheseincidents alone,which were
included in the original counter-claim, and which werethe subject ofIran'sfiling dated
18November1997objecting to that counter-claimI.t isonlytheseincidentswhichwere dealt
with inthe Court'sOrderof 10March1998relatingto the counter-claim.
As noted in Chapter1above,in its Rejoinder theUnitedStateshas added forthe first
4.5
tirnetwo furthervessels toits list of specific incidents included in its original counter-claim,
the Sungari and the Esso Demetia, bothof which it alleges wereu.s.-owned2. At the sarne
time, in a footnote,the United States also refersto incidents involving three allegedlyU.S.-
operated vessels,the Stena Concordia, the Stena Explorer and the Grand wisdorn3.The
United States purports to "reserve ...the right to further developal1 pertinent facts and
arguments regarding U.S. operated vesse~s"~.
4.6 For reasons explained elsewhere in this pleading,Iran submits thatsuch late-filedor
potential claimswith regard to the additional five vesselisdentifiedaboveare notand cannot
be properly beforethe Court. In the circumstancesIran limits itself to noting the following,
which appears onthe face of the evidence submittedby the United States in respectof these
incidents:
- Of the two new vessels which theUnitedStates alleges wereU.S.-owned - the
Sungari andthe Esso Demetia -theEsso Demetia was in facU t .K.-flaggedand
u.K.-owned5.The Sungariwas Liberian-flaggedbutdoes appearto have been
U.S.-owned.
- Even if relevant, which Iran denies, the U.S. statement thatthe Stena
Concordia, Stena Explorer and Grand Wisdomwere U.S.-operated is not
proven6.
2 See, U.S.Rejoinder,para. 6.06.
3 Ibid., 404.
4 Ibid.
5 Ibid., Exhibit234, refers to the EssoDernetiaas beinpownedby EssoMarineUK Ltd.
6 The deck logs of the Stena Concordiaand Stena Explorerhave "Universe TnkshipExec" typed onthe
top (U.S. Rejoinder,hibit 233). However, noevidenceis provided toexplainthe significance ofthis
asto how it shows U.S. management.In the case of the Wisdom,the United Statesis only able to -
The U.S. allegation that one of the vessels, the Esso Demetia, wascanying
U.S.-ownedcrude aiso appearsto be wrong.Exhibits234 and 249 to the U.S.
Rejoindershowthat thecrudewasin factownedbynon-U.S.companies.
- In any event, none of the five vesselswas engagedin commercebetween Iran
and theUnitedStates.
Section 2. S~ecificincidents
A. The Bridaeton(24Julv 1987)
4.7 On 24 July 1987, the Bridgeton, a reflagged Kuwaiti vessel, struck a mine
approximately 18 nauticalmiles southwest of Farsi Islanda ,t position27"59'N,49"501E.The
timeof the incident wasapproximately0700 hours7.
4.8 The vessel wasin ballast en route fromthe Netherlands to Kuwait and had departed
fromKhorFakkanoff the United ArabEmirates three days earlier. She was accompaniedby
three United States Navy warship escorts and another reflagged Kuwaitv iessel, the Gas
prince8.
4.9 No seriousdamagewas caused totheBvidgetonbythe mine, there wereno injuriesor
casualties,and the vessel wasable to proceed on itsvoyageafterthe incidentg.
4.10 In its Reply,Iranhas already demonstrated the flaws in the United Statecsl'aimsthat
(i)the mine inquestion was Iranian,and (ii)theBridgetonwasspecificallytargetedbyIran".
producea press reportreferringto the vessel being operatedby a California-basedCo.)isy(ibidT
cannotbe consideredas sufficientevidencetojusti@a claim.
7 U.S. Counter-Mernorialand Counter-Claim, paras.1.25-26; U.S.PreliminaryObjecti14. Exhibit
8 U.S.Counter-Memorialand Counter-Claim, paras.1.25-36and Ex9.bit
9 Ibid .xhibit9; Iran'sMemorial,Exhibit56.
10 Iran'sReplyand Defenceto Counter-Claim, paras.5.16-5.18. 4.11 Inrelation to the claim that the mine which stmck the Bridgeto wnas Iranian, the
United States asserted inits Counter-Memorialthat shortly after the incident, U.S.forces
located a fieldof Iranian mines "south of Iran's Farsi Island",which the United States
described as"nearthe locationwhere the ...Bridgetw oas struck"". However, asexplained
in Iran's Reply,the United States'own exhibitsrevealthat this minesweeping tookplace 17
miles awayandsome four monthsafter theBridgetio nncident1*.Irrespectiveof whetherthese
allegationsare true, which Iran denies, there has been no demonstration of any causallink
between a minefield 17miles away found fourmonthslater and the mine which struck the
Bridgeto No.mines werediscoveredinthe vicinity of wheretheBridgetio ncidentoccurred
either at the time of theincident or thereafter.Nor is there any suggestion that either the
Bridgeto ornanyof theother vessels inthe convoy,norindeedany other vessels, encountered
any other minesin the vicinity at the timeor thereafter.This is a clear indication thatthere
was no minefield inthe imrnediatearea. The UnitedStatesfails to addressthese facts in its
Rejoinder.
4.12 The second allegationin the Counter-Memorialis that theBridgetw onas deliberately
targetedby an Iranian small boat manoeuvringinto its path andlaying a single mine.Quite
apart from the fact thatthis version is inconsistentwiththe previous allegation, it isentirely
implausible.While Iran cannot prove a negative,it did ask an independentexpert in mine
warfare,CommanderJacquesFourniol,to considerthisallegation.It is his opinion thatsucha
hypothesis cannot be envisaged, not leastbecause of the impossibility of handling alarge
mine on a small boat13.The United States onceagain fails to address this evidencein its
Rejoinder.
4.13 The United States'two allegationsare also inconsistentwith its reaction at the time.
The FinanciT ailmesnoted that immediatelyafierthe incident"Washington.. . said it would
not retaliate,nce it was not sure who was re~~onsible"'~N.o specificprotest was madeby
the United StatestoIranat the time in relationtotheBridgetincident.
II U.S.Counter-Mernorialand Counter-Claim,parafn.2.9,
12 See, Iran's Replyand Defence to Counter-Clairn,para. 5.16,referrinp to U.S. Counter-Mernorialand
Counter-Claim,hibits43, p. 1and 49, p. 2.
13 See, Iran's Replyand Defenceto Counter-Clairn,Fourniol.8-32.t, pp2
14 Iran'sMernorial,Exhibit 57. 4.14 A more plausibleexplanation of the Bridgeton incident, and onewhich is consistent
with the United States'reactionat the time and with the fact thatno minefieldwas found in
the area, is given ina reportby the General Councilof British Shipping,which is an exhibit
submittedbythe United States.ThisreportStatesas follows:
"Early in the war mines were laidbyboth sidesat theheadof the Fersian] Gulf. Some
of these have occasionally beenreportedto have broken loose.These would drift SE
on the SW side of the [Persian]Gulf and could,due to prevailingcurrents, drift anti-
clockwise roundthe area. They are brown or rust colouredand, floating low in the
water, would be difficultto see. The Farsi Island area isthe most likelyarea where
thesemineswouldinterfere with neutralve~sels"'~.
TheBridgetonwasstruck close to Farsiisland.
4.15 In anyevent,and as explainedin subsequentChapters,it is Iran'ssubmission thatthe
United Stateshasnobasisfora claiminrelationto the Bridgeton.
B. The TexacoCaribbean(10 August 1987)
4.16 The TexacoCaribbean, a Panamanian-flaggedtanker, struck a mine on 10 August
1987at the KhorFakkananchoragein the Gulf of Omanoff Fujairah,UnitedArab Emirates.
Thetimeofthe incident is reported as 1530hours16.
4.17 At the time of the incident, the vessel was travelling to Rotterdamfkomthe Iranian
terminalat LarakIsland,whereshehadbeen loaded withIranianlightcmde oil".
4.18 Inits Counter-Memorial,theUnited Statesallegedthat thevesselwasU.S.-owned,but
producedno evidenceof this18.In its Rejoinder,the UnitedStatesadmitsthat the vessel was
in fact Panamanian-owned,but now asserts that it was "U.S.bareboat chartered"I9.In fact,
even this assertionis wrong.The documents submittedin evidencebythe UnitedStates show
15 U.S.Counter-Mernorial and Counter-Cla, xhibit2, p. 48.
16 U.S. PrelirninaryObjection,Ann1,p. 65 and Exhib14;U.S.Counter-Mernorial andCounter-Clairn,
para. 1.34.
17 U.S.Rejoinder,para. 6.06.
18 U.S. Counter-Mernorial and Counter-Clairnp,ara. 6.08(2).
19 U.S. Rejoinder, para.6.06,fhn.09.that the vessel was "bareboat chartered" to Texaco Panam Iac.,a Panamanian company, and
wasthusnot "U.S. bareboatchartered~'~~.
4.19 Ownershipof the crudeoil on board theTexacoCaribbeanwas stated in one report to
be "shrouded in mystery"2'.The United States claims in the Rejoinder that thc eargo was
ownedby Texaco International Trader Inc., a U.S. compan wyhollyownedby Texaco I~c.*~.
However, other reports,including a contemporary reportof a statement by a Texaco
spokesman, state that the Texaco Caribbean was "under a single-voyage charter to the
Norwegian shipping andtrading company Seateam and'was under orders to proceed to
Northwest Europe with a cargo belonging to that ~om~any"'~~.
4.20 With regardtothe incident itself, the explosion of aminecreated aholein thehulland
crude oil leaked into the sea,requiring the cargoto be off-loaded toanother vessel (the
D'Artagnan).The vessel then proceededto Bahrainfor repairs24.There wereno injuries or
casualties.
4.21 The United Statesagain alleges that the mine was laidby Iran. This allegationis
absurdfor the following reasons:
- The TexacoCaribbeanwas canying Iraniancrude.Exportof crude was Iran's
life-line.The suggestion thatIran wouldtarget an area where vessels trading
with Iran would normally pass, and thus put in danger theexport of its crude
and undermineits own economic interests,can be excluded.Al1Iran'sefforts
were directedtowards protecting its oil exports. Iranian officiais repeatedly
referred atthe time to the absurdityof the suggestion that mines were laid in
this areaby 1ranz5.
20 Ibid.,Exhibi11.
21 Iran'sObservationsand Subrnissionson theU.S.PrelirninaryObjection,Exhibit25.
22 U.S. Rejoinder,para.6.06 and Exh211.
23 Iran'sObservations and SubrnissiotheU.S.PrelirninaryObjection,Exhibit25.
24 U.S.Counter-Mernoriaiand Counter-Clairn,para.6.08(2)and Exhibit 169.
2s See, Iran'sObservations and Subrnissions onthe U.S. PrelirninaryObjection, Exhibit 26, and U.S.
Counter-Mernorial and Counter-ClaExhibit55,p. S4. - As recorded in the Yearbookof the UnitedNations, Iran also protested the
incidentto the Secretary-Generalof theUnitedNationsin the followingterms:
"Ira rnported thaton 10August in the Gulfof Omanoff the port of Fujayrah,
the.. Texaco Caribbean, flying aPanamanianflag andcaqing Iranian crude
oil, stnick a mine. It stated the occurrence indicated thatIraq and the United
States had not limited their tension-creatingactics to the Persian Gulf...and
that United States policyin the [Persian]Gulfwas contraryto the peaceprocess
andthe safeguardingof navigation in internationalwaters"16.
In the week following the Texaco Caribbean incident, and following
discussions with Oman, Iranian naval forcescarried out minesweeping inthe
Gulf of Oman, destroying severalmines2'.
- No evidence is producedby the United States asto the type of mine that hitthe
Texaco ~aribbean~~.However, as confirmed in the report of Commander
Foumiol, Iraq hadthe capacity tolay minesanywherein the Persian Gulf, and
had similar mines to those possessed by 11-m~~ I. addition, and contraryto
what the UnitedStates would have theCourt believe, thereare contemporary
reportsof Iraqi rninelayingin the southern Persian~ulf)'.
- In its attempt to show that Iran was responsibie for this mining, the United
States refers to a statement made by His Excellency Ali-Akbar Hashemi-
Rafsanjanion 21 August 1987, only days after the incident3'.His Excellency
referredto Iraqi minelaying, and withregard tothe Texaco Caribbeanstated:
"InKhawrFakkan - that was our lane,soyoucannotSaythat Iraniansmined it,
becausewe ourselves use that course - a minehit ourown ship fir~t"~~.
26 Iran'sMemorial,Exhibit 58.
27 See, e.g., Iran'sObservations and Submissions on theU.S. PrelirninaryObjection, Exhibit 27.
28 There is only one incornplete U.S.exhibit which refers tomines bein; found in the Gulf of Oman in
October 1987,several months later.See, U.S. Counter-Memorialand Counter-Claim,Exhibit 53.
29 Iran'sReplyand Defenceto Counter-Clairn,Fourniol Report, pp.19-23.
30 See, e.g., Iran'sMernorial,Exhibit 16,p. 165.
31 U.S. Counter-Mernorialand Counter-Claim,para. 1.38.
32 Ibid Exhibit55, p. S4. C. The Sea IsleCitv (16October 1987)
4.22 The Sea Isle City,a reflaggedKuwaiti tanker, wasstruckby a missileon 16October
1987,while in ballast offMina al-Ahmadi,~uwait~~.The vesse1had been"proceeding from
its anchorageto the oilloadingterminal atKuwait'sMinaal-hadi port"34.
4.23 The United States asserts that theSea IsIe City was hit by a Silkworm missile fired
fiom the Fao peninsulaandaccusesIranof having a "shifiingstory" withregard tothe alleged
existence and use of Silkwormmissile siteo sn ~ao~'.
There were three Silkworm missilesites on the Fao peninsula.Thesewere Iraqi sites
4.24
captured by Iran. It was Iran in its Reply and Defence to Counter-Claim that introduced
evidence on this subject, includingphotographicimageryof thesesites.The United States had
not previously discussed or even mentioned such sites. As pointed out by Mr. Youssefi,an
Iranian expert in missile warfare, and as is even clear from the satellite photographs
subsequently producedby the United States, these sites were heavilydarnaged during the
fighting with Iraq on theFao peninsula36.As a result they were inoperativethroughout the
periodthatIranianforcesheld~ao".
4.25 The United Statesdoesnot denythat these were originallyIraqisites.Two of the sites
were constructedby Iraq so that they were aligned for firing towards waters off Kuwait
(although not on a trajectory which couldhave hit the Sea IsIe City); the third site was
directed towards1ran3*.
4.26 TheUnited Statesdoesnot allege thatthe missile whichhit theSeaIsIeCity was fired
from anyof these three sites. The UnitedStates appearsto suggest rather thatthe missilewas
fired from a fourth site on the Iranian side of the Arvand River, at a place calledNahr-e
33
34 U.S. Rejoinder,E.xhibit240.
35 U.S.Counter-Memorial and Counter-Claim, p6.08(3).
36 U.S. Rejoinder,title ofChap.III, S4.A.on
See,Iran's Reply and Defence to Counter-Claim, Statementof blr. Yousse4.,See,also, U.S.
Rejoinder,xhibit208, Images3,4, 5, 10and 11,where numerous tracesof shellexplosions areclearly
visible.
37 Iran'sReply and Defenceto Counter-Claim,Statementof Mr. Youssefi, para.15.
38 SeeU,.S. Rejoinder,Exhibi10. Owyeh, whichthe United States alleges was pointed on a trajectory towardsthe Sea Isle
~iry".
4.27 The only evidence submitted to support thisis a number of satellite photographo sf the
aileged fourth site. While these are not very clear, theydo appear to show that neither the
alleged launchingsite at Nahr-e Owyeh northe so-called staging areasome 50 kilometres
away bears any resemblance to the normalform of a Silkworm missile site.The normal form
of such sites is shown in the manufacturer'smanual and is even apparent fromthe satellite
photographsof the other sites produced by the United tat tes" Ianian experts have also
explainedhow theU.S. satellite photographsof the alleged fourthsite bearno resemblance to
a normal Silkworm missilesite. Moreoverthe manuals recomrnend thatthe support site(or
staging area)be located some 3-4 kilometresfrom thefiringsite. On the U.S. photographs the
alleged support site appears to be some 50kilometres away.
4.28 The U.S. assertions asto the existence anduse of this fourthsite are also inconsistent
with contemporary evidence produced by the United States, specifically a document dated
16October 1987 and labelled "Top Secretw 1'hich refers to the fact that Iran had occupied
three abandoned Iraqi siteson the Fao peninsula and was "building afourthU4'T . he clear
implicationof this report - made onthe very dayof the Sea Isle City incident - is that the
fourthsite was not yet completed, letaloneoperational.
4.29 Quite apart from the lack of evidence of the existence of afourth missile site, the
assertionby the United Statesthat this alleged fourth site wasused for the attackon the Sea
Isle Cityis whollyat odds with otherevidencebefore the Court, includingdocuments from
officia1U.S.sourcesandevidencesubmittedbythe United States:
- Firsr, at the time of the Sea Isle City incident the United States asserted that
Iran only had operational Silkworm missile sites i the Straitof Hormuz area.
This is confirmedin a number ofU.S. documents, includingthe October 1987
39
40 See,ibid.Exhibit 208, Images6, 7and 8, and Exhibit210.
See, Iran'sReply and Defence to Counter-Clairn, Staternentof Mr. Youssefi,Amex C, p. 4-9; compare
also Images4,5, 10, 11and 13 with Images67and 8 in Exhibit 208 to the U.S. Rejoinder. See, also,
JI thegraphics in Exhi94tto the U.S. Counter-Mernorial andCounter-Claim.
U.S. Counter-Mernorialand Counter-Clairn,Exhibit 92. issue of the Department of State ~ulletin'~. In addition,on 20October 1987,
only a few days after the Sea Isle City was hit, the WashingtonPost reported
U.S. "intelligence sources"as saying that therewere"no Silkworm launchsites
at Faw, making a military strike on the areapointless"43.However, inthese
proceedings the United States alleges that in fact it knew that Iran was using
Silkworms fiom the Fao peninsula fiom early 1987. The fact is that
contemporary statementsbythe United Statescontradictthis, and tojudge from
the report of 20 October 1987, hadsuch sites existedthey would have been
attacked in theaftermathof the incident.
Second, both the sales brochure of the Silkworm and officialU.S. documents
contemporaneous withthe attack state the maximumrangeof the Silkworm as
95 kilometres. The Sea Isle City was at a distanceof nearly 100 kilometres
fromthealleged fourthIraniansite4'.
- Third, the U.S. assertion that a fourth site was used is at odds with the
statementby two Kuwaitiofficersproduced in evidenceby the United States.
The Kuwaiti officers'statement is in large part hearsay, referring to alleged
observationsby other unidentified Kuwaiti military personnel45T. he statement
was preparedin 1997andno contemporaneous records are presented to support
it. Onlyone missile was allegedly seenby one of the authorsof the statement,
MajorGeneral Yacoub Al-Suwaiti. He Statesas follows:
"At 0900, on 16 October 1987, while visiting the locations on Auhat Island,
Colonel Al-Suwaiti observed while staying in Auha [sic] Island, a missile
flying overhead, between FaylakahIslandand Auhat Island, in asouth-south-
easterlydirection...originating from the direction of the Fawpeninsula.. .
Minutes later in the moming on 16October, the U.S.flag vesse1Sea Isle City
was struckbya missile"46.
42 See,e.g., Iran'sMernorial,Exhibit67.
43 IbidE.,hibit69.
44 See, for a detailed discussionof this issue,Iran'sReply and Defenceto Counter-Claim, paras.4.33-4.45.
45 U.S.Counter-MemorialandCounter-Claim,Exhibit82.
46 Ibidp.aras. 14-15. There aretwo fundamentalinconsistencies in this statement. Firstt,he SeaIsle
City was hit at 0600 hours not 0900hours4'.Second,if the missile had been
fired fromany of the sites which the United States alleges were controllebdy
Iran they could not have been travelling in a "south-south-easterly direction".
Only missiles fired from Iraqi territoryor fiom areas used by Iraqi forces
behind Bubiyan Island could have been travelling in a south-south-easterly
directionat that point.
4.30 There are alsounexplained gapsin the U.S. evidence. Thus,the United States alleges
that the missile which hit the Sea Isle City was a Silkworm,but notes that it was unable to
examine fragments of the missileto confirmthis:
"Becauseof the nature of the explosionsthat occuned when cruise missiles struck
SungariandSeaIsle City m,ilitary personnel wernotableto collectsizablefragments
fromtheOctoberimpacts whichcouldbe a~~al~zed"~~.
Expert testimony submitted by Iran froman independent thirdpartyexperton missile defence
systems, Mr. Jean-François Briand,has shownthat it is implausiblethat sufficientfragments
could not have been recoveredfrom the attack on the Sea Isle The United States'
assertion in this regard isalso at odds with a press report thatthe United States has itself
submitted, which refersto U.S. militarysourcessayingon 19October 1987~':
"Pieces of Silkwormmissiles have been recovered fromthe SEA ISLE CITY anda
secondvesse1(SUNGARI)".
4.31 Fragments wereallegedly found from missiles that landedin or around Kuwait on
21 January1987and 4 September 1987,whichwereanalysedbyU.S.expertswho determined
that the missilesin questionwere ~ilkworms~~H . owever, it is also stated these fragments
were removedby Iraq when itoccupiedKuwait in 1990~'.This wouldof course have been a
natural thing forIraq to doif they were fragments oIraqimissiles.
47 See, e.g., ibid.,Exhibit90.
48 U.S. Counter-Mernorialand Counter-Clairn, para.1.71.
49 Iran's Replyand Defenceto Counter-Claim,Briand Report,pp. 2-3.
50 U.S. Counter-Mernorialand Counter-Claim,Exhibit90.
51 See, U.S.Counter-Mernorialand Counter-Clairn,para. 1.71.
sz See, ibid., Exhibit82, para. 10.4.32 Iran'sexpert Mr. Briand has pointedto another gapin the U.S. evidence.Mr.Briand
expresses surprise that U.S.AWACSwhich, as the U.S.exhibitsshow, were covering the area
when the SeaIsle Cit y as hit, werenotable to trace the flightpathof the missile and that the
United States has put inno evidencein this regards. The UnitedStatesprovidesno response
on this issue. It isequally surprising that U.S. military vessels, apparently stationed just
outside Kuwaititemtorial waters at thetime, took no action against the missile. Silkworms
can be shot down or deviatedby electronic jamming. U.S. forces regularly used jamming
against Iranianforces andwere able easilyto disableIraqi Silkwormsfired against U.S. forces
duringtheIraqKuwait conflict". Again,the United Stateshasnotresponded to this.
4.33 Effectively, the only evidenceon which the United States relies are photograsf an
alleged fourthIraniansite. However, as notedabove,otherU.S.intelligence reports recognize
that there wereno operational sitesin the Fao area at thetime, and that theourth site was
underconstruction. Inanyevent, as also shownabove,use of the fourthsite would have been
impossible in connection withthe attack on theeaIsle Cify.
4.34 On the other hand, Iraq had an arsenal of sophisticated missiles, including the
Silkwormand variations thereof which couldbe usedfromnavalvessels and from the air.It
also had Styx missiles and Exocets.Iraq hadcarriedout numerousmissile attacks from land
and vessel-based sites in or around thFao peninsula, in particularfrom the waters around
Bubiyan Island, which the Iraqis were givenfiee use of by Kuwait.These sites were within
closerrange of the Sea Isle Ciiy than the allegedIraniansites. The United Statesdenies that
Iraq had an operational Silkworm missilesite on its side of the front in the Fao peninsulain
1987-198 H8owever, as Iran hasshown,Iraqcontinuedto carryout Silkworm missile attacks
fiom the Faoarea throughout1987and 1988~I~ n.any event,theUnited Statesfailsto address
the fact that Iraq had "Osa" vessels and specially-equippedaircraft capable of firing
~ilkworms~~.
53 Iran'sReplyand Defenceto Counter-Clairn, Briand Report,pp. 5-6.
54 See ran'sMernorial,Exhibit48; Iran'sReplyand Defence to Coun, tatement of Gen. Fadavi,
para.5; and ibid., Staternentof Mr. Youssefi,p. 9.
55 See ran'sReply andDefence to Counter-Clairn,Staternentof Mr. Youssefi,para. 21and AM~XE.
56 See bid., paras. 17-22. 4.35 It should also be noted that Iraq is reported as having developedextended range
Silkworms in the mid-1980s, significantly called Faw 150 and Faw 200, with ranges of
150 km and 200 km, respectively.These designswerecreated by extendingthe Silkworm's
liquid propellanttankss7.The fragmentsof missilesthatwere exarninedby U.S. experts -and
which were subsequently removedbyIraq - appeartohavebeen this typeof missiless.
4.36 Iraq aiso had fiee use of Kuwaiti airspace,and hadcarried out numerous attacks on
supposedly fnendly shipping,including the attack ona U.S.warship,the Stark. Iraq had also
firedair-launchedSilkworm missiles atneutral-flaggedvessels trading withSaudiArabia, and
at U.S.-ledconvoysof reflagged Kuwaiti tankersF . orexarnple,The Washington Postreported
incidentsinFebruary1988in which:
"Iraqibomberson successivenights dropped air-launched Silkworm missiles.One of
them crashedinto a fully loaded Danishsupertankerthat had just left the port of Iraq's
ally, SaudiArabia. Two other Silkwormsdroppedthe following night roaredpast a
U.S.-ledconvoyof reflagged Kuwaiti tankers beforethey crashed into thesea. Kuwait
isaisoan Iraqaliy"59.
Such attacks mayhave been a function of Iraq's "shoof tirst- identify later" poli~y60.They
mayequally havebeen deliberateprovocationdesigned toencourage thirdState supportwhile
pointing the fingerat 1ran6'.
D. TheLucv (15116 November 1987)
4.37 TheLucy,a Liberian-flagged vessel, was allegedlyattackedby gunboatsnearthe Strait
of Hormuzwhiletravelling in ballastfromJapanto RasTanura inSaudiArabia". It appears
that thevesselsustained minor darnage.AfierrepairsinDubaithe vessel wasable to continue
itsvoyage63T . here wereno injuries orcasualties.
57 See, ibid., para. 4.45 and Exhibit 22.
58
See, U.S. Counter-Mernorial and Counter-Clairn,Exhibit84, p. 2, where it is stated that the Silkworm
59 exarninedhad beenstretched to increaseitsrange, requiringadditional fuel.
60 Iran's Mernorial,Exhibit 68.
6i See, ibid.,para. 1.35.
62 SU.S.Rejoinder,Exhibit 240.eto Counter-Clairn,paras.4.67-4.73.
63
See,U.S.Counter-Memorial andCounter-Claim,Exhibit170. Œ,
4.38 The Reportof the Secretary-General of thUnited Nationsrefers to this attackking
place on 15November1987 at 0300 houn, at a position of26O15'N5 Y6005'~~.This is the
ml
date reliedon bythe United tat tesA s.Iran notedin its Reply,other reports suggest the
attackoccurredon 16November 198766. -t
4.39 The United States asserts that the Lucy was "U.S.ownedM61 I. fact the Lucy was m
ownedbyFirstProductsTankers,Inc.,a Liberianc~m~any~~.
U
E. TheEssoFkeeport(16 November1987)
4.40 According tothe United States, the Esso Freeport, a Bahamian-flaggedtanker, was
attacked on 16November1987,near the Strait ofHormuz,off theCoastof Oman. Shewas
loaded withSaudicrudeoil and enroute fromRasTanura,SaudiArabiato ouis si ana^^.
4.41 TheEssoFreeport is allegedto havebeen attackedbygrenades from small gunboats.
TheUnitedStateshas previously asserted that shweas"severelydamagedH7'H . owever, as the
new exhibitsto the UnitedStates Rejoinder show, thegrenadesallegedlyfired did not even
penetrate theulI,andthe EssoFreeport was ableto continue onher voyage7'.Therewereno
persona1injuries.
4.42 In its Rejoinder,the United States alsoasserts that thisvesse1was ~.~.-owned~~I.n
fact, she was owned by Esso International Shipping (Bahamas) Co. Ltd., a Bahamian
c~m~any~~.
U.S. PrelirninaryObjection, Exhibit 14, p. 15.
U.S. Rejoinder, para.6.06.
See,e.g.,U.S.PreliminaryObjection, Exhibit6, p. 125andExhibit11, p.333.
U.S. Rejoinder, para.6.06.
IbidExhibit242.
U.S. Counter-Mernorialand Counter-Claim,paraU);.Rejoinder, para.6.06.
U.S. Counter-Mernorialand Counter-Clairn,para.6.08(5).
U.S. Rejoinder,Exhibit245; see, also, U.S.Counter-Mernorial and,xhibit9.Clairn
U.S. Rejoinder,para. 6.06.
IbidExhibit234. F. The Diane (7Februarv1988)
4.43 The Diane, a Liberian-flagged tanker,was allegedly attackedon 7 February 1988,
while sailing at position 25"49'N,5j040'E, approximately 17 milesoff Ras al-Khaimah,
United ArabEmirates.Shewas carryingSaudicmdefrornRasTanuraenrouteto ~a~an~~.
4.44 The vessel was allegedly attackedby a fiigate7'.The Diane was able to proceed to
Fujairah for repairs. Shethen proceeded to Japan to discharge hec rargo76.There were no
persona1injuries.
4.45 The United States asserts that the Diane was "~.~.-owned"~~ I.n fact, the Diane was
ownedbyLakeSuperior Bulk Carriers, Inc., a Liberianc~m~an~~~.
G. The Samuel B. Roberts (14April1988)
4.46 The SamuelB.Roberts, a United States warships,trucka mineon 14April 1988.The
vessel was returningto Bahrain at the time,having completed a mission escorting reflagged
Kuwaiti tankers79T. he incidentoccurrednear ShahAllumShoal off~ahrain".
4.47 In its Rejoinder, the United States largely repeats the presentation it hadmade in
previous pleadingsas to alleged Iranianminingof the Persian Gulf.It does not introduceany
new argument or evidence in responseto Iran's positiononthis issue8'.
4.48 The United States ignoresthe fact thatthere wasno large-scalemining of the Persian
Gulf during the conflict. Apparently,only 176mines were discovered, of which 87 were
floating mines -in other words mines which could have beenlaid anywhere butwhich had
Ibidp.ara. 6.06 and Exhibit 248.
Ibidp.ara. 6.06.
U.S. Counter-Memorialandounter-Claim, Exhibit 171.
U.S.Rejoinder,para. 6.06.
IbidE.,hibit242.
U.S. Rejoinder, para. 6.06.
Ibid.
See,Iran'sReply and Defenceto Counter-Claim,paras.5.14-5.34. brokenthei mooringsand werefoundfloatingwiththecurrent8*O . nly 89 moored mineswere
discovered.It shouldbe recalled thatduringthe IxaqtKuwaic tonflict thousandsof Ixaqimines
were discovered in and around Kuwaiti waters.
4.49 Second,the United States ignores the evidencesubmittedby Iran that Iraq not only
possessedsimilarmines to Iran but also had thecapacityto lay such minesanywherein the
Persian~~19~ P.ess reports alsoconfirmthe presenceof Iraqi minesin the southemPersian
GUI~S~.
4.50 The United States also ignores thefollowingevidence concerning mines which it
alleges were laidbyIran:
- Mines found off Kuwait'sAl-Ahmadiport in May-June 1987: Reportsof four
vessels allegedlystruckbymines inthisarea are contradictory. Two vessels are
reportedas having hit "fiee-floatingor breakaway"mines. Another is statedto
have been hitby an "unidentified~ar~lane"*~I.n any event, it is implausible
that Iran couldhave laid minesinKuwaitiwaters. OnlyIraq hadaccessto such
waters.
- The Bridgeton incident inAugust 1987:This has been discussedabove.It is
more likely that the Bridgetonwas stmckby a floating mine,as no minefield
was found in the area. Allegedlymineswere found 17 miles away and four
months later.No vesselswerestruckbysuchmines.
- Minesfound off Fujairah inAugust 1987: Theseinclude the mine which hit the
Texaco Caribbean.Again,thishasbeendiscussedabove.
82 See,U.S.PreliminaryObjection, Annfn.57.
83 See,para.4.21,above.
84 See,Iran's Replyand Defenceto Counter-Claim,para.5.28.
85 Ibid., para. 5.15,an33.. -
The Iran Ajr incident in September 1987: The United States ignores the
evidence submitted by Iran that this vesse1could not have been used for
minelaying. Italsoignores the testimonyof the Commanderof the Iran~jr'~.
4.51 The United States moreover ignores contemporary evidence that Iranian officiais
rejected minelayingand supported minesweeping efforts.As stated by an Iranian Naval
Commanderin 1987:
"For seven years,the IranianNavy has maintainedsecurityin the Persian Gulf. For
sevenyears,Iraqhas laidminesandwehave gathered themMg7.
4.52 In any event, Iran will show below thatunder the Treatyof Amity Iran can have no
liability to theUnitedStatesinrespectof theSamuelB.Roberts.
86
87 See, ibidaras. 5.20-5.22,and Statementof Capt. Farshchian.
See, Iran'sObservationsand Submissions on theU.S.PreliminaryObjection,Exhibit26. PARTIII
LEGAL ISSUES
CHAPTER V
JURISDICTIONAND ADMISSIBILITY
Section1. Introduction
5.1 Before entenng into a discussionof issues of jurisdiction and admissibility, some
elementsofthe procedural backgroundto thepresent case shouldberecalled.
5.2 In its Judgment of 12December 1996t,he Court stated that:
"...the question the Court must decide, in order to determine its jurisdiction, is
whether the actionsof the United States complainedof by Iran had the potential to
affect'freedornof commerce'asguaranteedby [ArticleX(1)of the Treatyof ~rnity]"'.
5.3 Followingthe Judgment, theUnited Statesfiledits counter-claim, requesting the Court
to adjudge and declare that alleged actions by Iran were "dangerous and detrimentalto
maritime~ommerce"~.
5.4 In its Order of 10 March 1998, the Court repeated its earlierfinding that "its
jurisdiction in the presentcase covers claimsmade underArticleX, paragraph 1,of the 1955
~reaty").It then recalledthat the United States' counter-claim alleged certnctions "saidto
be 'dangerous and detrimentalto maritime commerce"'a ,ndfound thatsuch facts "are capable
of falling within thescope of Article X, paragraph 1,of the 1955 Treatyas interpretedby the
coUrtn4.
I Judgmentof 12Decernber 1996,para. 38.
2 U.S.Counter-Memorial andCounter-Clairn,p. 180.
3 Order of 10March 1998,para. 34.
4 Ibid.,para.36. 5.5 With regard toadmissibility, the Court held that "the counter-claim presenteb dy the
United Statessatisfies the conditions set forth in Article 80, paragraph 1, of the Rules of
courtu5.Thoseconditionsare (i)that the counter-claim shouldbe "directlyconnected with the
subject-matterof the claimof the otherparty"and (ii) that itcorneswithinthe jurisdictionof
the Court.
5.6 The Court added that"a decisiongiven on the admissibilityof a counter-claimtaking
account of the requirementsset out in Article 80 of the Rules in no way prejudges any
question which the Court will be called upon to hear during the remainder of the
proceedings"6.
5.7 Iran is therefore atliberty to raise objections of jurisdictionand admissibility against
the UnitedStates counter-claim,to theextentthat suchobjectionsdonot relate to aspectsthat
have alreadybeen decided bythe Courtin its 0rder7.This rightwasrecognisedby the United
States in its written observations of18December 1997, whenit arguedthat "Many ofIran's
objectionstojurisdiction and admissibility involvecontested mattersof fact which the Court
cannot effectively addressand decide at this stage, particularlynot in the context of the
abbreviated procedures of Article80(3)"'.
5.8 Consequently, ashas been shownin Iran's Reply andDefenceto Counter-Claim, and
aswillbe furtherdevelopedbelow,objections remain open where:
- the counter-claimas now formulatedgoes beyond the limits of the Court's
jurisdictionas laid downbythe Court; or
5 Ibid., para. 40.
6 Ibid., para. 41.
7 There is no basis for the United States' suggestion thatIran should have filed separate "objections to
admissibility" of the counter-claim, rather than a "Defence to counter-claim" (U.S. Rejoinder,
para. 6.38, fn. 519). The Rules of Court make no provision forseparate "objectionsto admissibility" in
the event of acounter-claim and, in any event, Iran's Reply includedobjections to jurisdiction and
admissibility,as preliminaries to the considerationof the counter-claimon the merits (Iran's Replyand
8 Defenceto Counter-Claim, paras..7,etseq.).
See, Order of 10 March 1998, para. 22, referring to the introduction to the United States'written
observations. - the objections to admissibility arenot covered by the groundsof Article 80,
paragraph 1of the Rulesof Court.
Section2. Jurisdiction
A. Jurisdictionratione materiae
5.9 The Orderof 10March 1998is clearin limitingto ArticleX(1)of the Treatyof Amity
the basisofthe Court'sjurisdictionas regardsthe United States' counter-claim; Article X(1) is
of course the sole remaining basisof Iran'sclaim against the United States.As a result, the
Court does not have jurisdictionto entertain claims or counter-claims thad t o not faIl within
ArticleX(1)ofthe Treatyof Amity.
5.10 Moreover,the Court hasjurisdictionto rule onlyon counter-claims alleging a violation
by Iran of freedomof commerceas protected under Article X(l), and not on counter-claims
alleging a violation of freedomof navigation as protected by the same paragraph. As was
recognised by the Court in its Judgment, Iran's claim under Article X(1) relates only to
freedom of commerceandnot to freedom of navigation9.The United States' counter-claim as,
originally formulated, similarly related only to freedom of commerce. In other words, each
Partylimited itself at theoutsetto a claim that the other's actions constituted violations of the
freedomof commerceasprotectedunderArticleX(l), and notofprotected navigation.
5.11 In its 1998 Order the Court held thatit had jurisdiction to entertain the U.S.counter-
claim because(and only insofaras) it was based on an allegation that conduct attributableto
Iran was "dangerous and detrimental to maritime commerce"lO,and that "such facts are
capableof falling withinthe scopeof ArticleX, paragraph1,of the 1955Treaty asinterpreted
by the court"". In this connection it shouldbe stressed thatin its 1996 Judgmentthe Court
had interpreted ArticleX(l) only with regardto "freedomof commerce".
9
10 Judgmentof 12December 1996,para.38.
II Order of 10March 1998, par36.
Ibid. 5.12 Accordingly, the Court'sjurisdiction with regardto the claimandthe counter-claimis
restrictedto allegationsconcerning"fieedom of commercebetween thetenitories of the two
High Contracting Parties".Otherfieedomsprotected by Article X of theTreaty ofAmityare
not coveredby the Court'sjurisdictionas defined in the Court'stwo decisions12I .ndeed,the
United States itself accepts that thesame interpretationof ArticleX(l) mustbe applied both
to the originalIranianclaim andto the subsequentU.S. counter-claim".Thus,nothingfalling
outsidethe scope ofthe "freedomof commerce"guaranteedbyArticleX(l), as interpretedby
the Court, iswithinthe Court'sjurisdictionin the presentcase.
5.13 As Iranhas alreadyshownin its Reply,the United Statescannotreopenthe argument
on this point inan attempt unilaterally to extend the Court'sbasis of jurisdiction, amatter
which is alreadyresjudicata betweenthe Parties in thiscase". The 1996Judgment andthe
1998 Order have together defined and circumscribed the scope otfhe Court's jurisdiction
ratione materiaeboth for theIranianclaim andthe U.S. counter-claim.
5.14 Nevertheless, having acknowledged at an earlier stage of the proceedings that
ArticleX(l) "is expressly limited totrade between the territoriesof the two parties"15,the
United States now seeksto ignoretheterms of the Orderandto extendtheCourt'sjurisdiction
to counter-claims basedonArticle Xas a whole, or on a different sub-clauseof Article X, or
on alleged violations offreedom ofnavigation generally.
5.15 The counter-claim refersto alleged Iranian attacks on a nurnber of U.S. owned,
flagged, re-flagged,or charteredcommercialand non-commercialvessels16.In order for the
Court to have jurisdictionto entertainthis counter-claim, theUnited States mustprove that
suchallegedIranianattacksimpeded"freedomof commercebetweenthe territoriesof the two
HighContracting Parties". Howevert,he United Stateshas not demonstratedthat these vessels
were engaged in "commercebetween the territories of thte wo HighContractingParties".
12 See, Iran's Replyand Defence toCounter-Clairn, paras.9.9-9.11.
13
14 U.S. Rejoinder,par6.03.
1s Iran'sReplyand Defenceto Counter-Clairn,pa6.16.
U.S. Counter-Mernorialand Counter-Clairn,pa6.18See, also, Iran's Replyand Defence to Counter-
16 Clairn, par6.8,etseq.
For thelattercategory,see, ChapterVI, Sections 1.;.A,below. 5.16 On the contrary, theUnited States itself has referred(by wayof a lapsus calami?) to
"safetyof navigation" in connection with allegedIranianattacks in the Persian~ulf". In the
present case, however, theCourt has not accepted jurisdictionover matters conceming
fieedomof navigation,as distinctfiom or in additionto fieedomof commerce. Instead,as the
Court has stated and reiterated,itsjurisdiction - whch is identical for boththe Iranian claim
and the U.S. counter-claim - covers only the "fieedom of commerce" thatis guaranteedunder
ArticleX(1).
5.17 Notwithstanding,the United States has claimed that, shouldthe Court decide that
alleged Iranian attacks were not a violation of the fieedom of commerce as guaranteedby
ArticleX(l) of the Treaty,such alleged attackswouldconstitute a breachof other provisions
of thesamearticle. According tothe United Statesthese"other provisions of Article X are not
so limited"18,i.e. they alsoprotect "maritime navigation".It is then argued that the attacks
wronglyattributed toIran"violated this general freedomto conduct maritimn eavigation"19.
5.18 At the same time, the United States has tried to show that Article X(l) is merely
"aspirational" anddoes not provide for any specific and effective rights and duties. This
unpersuasive argument, whichhas been addressedby Iran in its ~e~l~~~ h,s already been
rejectedby the court2',and nonew arguments havebeen adducedby the United States in its
Rejoinder in thisregard2'.
5.19 In sum, since an alleged violation of "freedom of commerce" as protected under
ArticleX(1) constitutes the onlypossible basis for the Court'sjurisdiction in the present case,
no alleged violationof fieedomof navigationor of anyother provisionof the Treatyof Amity
can be entertained by the Court in the context of the counter-claim.This finding is res
judicata, and is thus binding on the Parties. Moreover, it is consistentwith Article 80,
17 U.S. Counter-Memorialand Counter-Claim, para. 4.30. See, also, U.S. Rejoinder, para. 4.14: "Iran's
attackson neutral shippingdisruptedfreedom ofnavigationinthe [Persian]Gulf'; emphasis added.
18 U.S.Counter-Memorialand Counter-Claim,para. 6.18.
19 Ibid.,para. 6.19.
20 Iran'sReply and Defenceto Counter-Claim,paras. 6.8, etseq.
21 See,Judgmentof 12December 1996,paras. 50 and 51.
27 See, in particular, Part IIIof the U.S. Rejoinder, where the United States' eloquent silence onIran's
arguments concemingthe allegedly "aspirational" characterof Article X(1) confirms the soundness of
the positionakenby Iranin its Reply and Defenceto Counter-Claim. paragraph 1 of the Rules of Court, which requires a counter-claimto be directly connected
with the subject-matter ofthe claim of the other party. This provision is designed to prevent
an unlimited expansion of the subject-matter ofa case. It is clear that if the subject-matter in
the present case were expandedto include violations of the freedom of navigation, thiswould
have seriousconsequences. If any party suffered fromviolations of thefieedom of navigation,
it was Iran itself.
B. Jurisdictionrationepersonae
5.20 The Parties are in agreement, and the Court has confirmed by its Judgment of
12December 1996and itsOrder of 10March 1998,that the Courthasjurisdiction to entertain
claims between Iran and the United States based on ArticleX(l) of the Treaty of Amity, by
virtue of Article XXI(2) of the Treaty.
5.21 The Court does not however have jurisdiction as between Iran and Liberia under
Article XXI(2)of the Treaty. Iran raises this point after having reviewed Exhibit 258 to the
United States' Rejoinder. ThisExhibit contains a DiplomaticNote from Liberia dated 6 June
1997, exhibited in support of the United States' assertion that the flag Statefor each of the
non-U.S.-flagged vessels identified inthe counter-claim "hasno objection to the presentation
by the United States of such c1ai1-n"~T ~.his assertion will be dealt with in greater detail in
Section 3 below, which deals with questions of admissibility. In the context of jurisdiction,
what is significant is that the Liberian Note does not confirm that Liberia has no objection to
the United States presenting a claim on the United States'own behalf, or on behalf of any
hypothetical U.S. interests in the vessels concerned,which were listed in the United States'
own Diplomatic Note to ~iberia~'.Instead, Liberia makes it clear that it expeots any such
claims to be advanced on Liberia'sbehalf:
"... the Government of Liberia interposes no objections to the United States
Government representing Liberia in this matter, provided this wilI incur no financial
burdens to the Government of Liberia. However, whenever damages are awarded in
the said matter bythe Court, that the Governmentof Liberiabe equitablybenefitedn2'.
23 U.S. Rejoinder,para. 6.34.
24 U.S. Counter-MernorialandCounter-Claim,Exhibit 179.
2s U.S. Rejoinder,Exhibit258. 5.22 In these circumstances, the Court can have no jurisdiction to rule upon the United
States' counter-claim insofaras it relatesto the two LiberianvesselsLucy and Diane. A State
cannot take advantage of another State's consentto jurisdiction, or of its bilateral treaty
relations, and this rule applies equallyto cases of espousalby consent as to any other cases.
Indeed the very attempt to justify espousal in this way in and of itself demonstrates the
absence of jurisdiction. IfLiberian consent isnecessary,by definition Liberian rights are at
stake, and itis manifest that the Court lacks jurisdiction toconsider those rights. A similar
conclusion would have to be reached with regartd o the Liberian vesselSungari if, contraryto
Iran'sposition set forth in Section 3.B, below, the UnitedStates' new claim relatingto that
vessel wereheldto be admissible.
Section3. Admissibilitv
A. Introduction: issuesof admissibilitvremainoven
5.23 The United States makes much of the Court'sdetermination,in its Order of 10March
1998, that the counter-claim "is admissible as such and forms part of the current
proceeding"26I .t appears to interpret this phraseas meaning that thereis no further scope for
challenging the admissibility of the counter-claim. Iran submits, however, that this
interpretationis incorrect.
5.24 Whenthe Courtissued its Order,it did so on the basisof Article 80,paragraph 1ofthe
Rules of Court, which requires a counter-claimto be directly connectedwith the subject-
matter of the claim of the other party, andto comewithinthe jurisdiction of the Court. The
Court examinedonly these two questions andfoundthat, becauseit could answer them in the
affirmative, the United States' counter-claim was admissible as such. Questions thatthe Court
did not examineand was not required to examine at that stage include the admissibility of new
claims; the consequencesof a failure properlyto specifyaclaim;the UnitedStates'standingto
file the claims; andrequirementsto be fulfilledbefore thefilingof claims.
26
See, e.g., ibid., par1.6.0 5.25 Iran will now turn to a discussion ofthese points and willdemonstrate thatthey al1
constitute grounds uponwhich the United States' counter-claim should be held to be
inadmissible.
B. New claims
The United States' attempts to include new vessels
5.26 Inits Counter-Memorial,the UnitedStates referredto allegedIranianattacks on seven
specific vessels, but purported to reserve the rigt,t a subsequent stage of the proceedings, to
"addfurther instancesof Iranian attacks on U.S. vessels in the [Persian] Gulifn 1987-~8"~'.
Iran responded to this reservationin its Reply, arguing that anysuch enlargement of the
counter-claim wouldbe inadmissible2'.
5.27 Nevertheless, theUnited Stateshas now attemptedto include two new vessels in its
counter-claim: theSungari and the Esso~emetia~~a ,nd continuesto reserve a purported right
"to further developal1pertinent factsandarguments regarding U.S. operated ves~els"~~ W. hile
it identifiesthreesuchallegedlyU.S.-operatedvessels,it doesnot appearyet tohave formally
advanced a claim in regard tothem.
5.28 Iranmust therefore reiteratehere whatit said in itsReply.In application of Article 80
of the Rules of Court, a respondentmust specie, no later than in its Counter-Mernorial,the
precise groundson which it brings a counter-claim. Theprinciple involved here was given
effect by the Court, mutatis mutandis, when it held in thN e auru case that a claim that was
cognatewith the original claim butwasnotincludedinthe Applicationwas inadmissible3'.
5.29 In applicationof Article 80 of theRulesof Court, therefore,the United States'counter-
claim may bedismissed without further examination, insofaa rs it relates to theSungari and
theEsso~emetia~~.
27 U.S.Counter-Memorial andCounter-Claim, para.6.26.
28 Iran's Replyand Defenceto Counter-Claim, paras. 10.40-10.42.
29 U.S. Rejoinder,para. 6.06.
30 Ibid., para. 6.fn4.04.
31
Case concerning Certain Phosphate Lands in Nauru(Nauru v. Australia) PreliminaryObjections,
32 I.C.J.Reports 1992,p. 240.
Similarly,of course, any subsequentadditionsto the counter-claimshouldalso be so dismissed. 2. The United States' attempt to enlargethe relevant timeperiod
5.30 In addition to its attempt to include new vessels within the scope of its counter-claim,
the United Statesnow appears to have enlarged the scope of its submissions. While in its
Counter-Memorialthe United States requested the Courtto adjudge and declare that certain
alleged actionsby Iran in 1987-88 constituteda breach of Iran's obligations tothe United
States, the correspondingsubmission in the Rejoindercontainsno reference tothe 1987-88
tirneperiod. This appears to be an attempt to open thedoor to counter-claimsarising at any
time outsidethis period.
5.31 This attempt must fail, however,in viewnot onlyof theterms of Article80,paragraph
2 of the Rulesof Court,but alsoof paragraph 1 ofthe sarnearticle, which requires acounter-
claim tobe directly connectedwith the subject-matterofthe claimof the otherparty.It should
be recalled in this connection that,in determiningthat the U.S. counter-claimwas directly
connectedwith the subject-matter ofthe claims of Iran,the Court held,inter alia, that "the
facts reliedon - whether involvingthe destructionof oil platforms orof ships - are allegedto
have occurredinthe [Persian]Gulfduring the~arne~eriod"~'A . nyattemptnow by the United
Statesto enlargethe scope in timeof its counter-claimwouldfail to satisfi the conditionsset
forth in Article80, paragraph 1 of the Rules of Court as applied by the Court in its 1998
Order.
5.32 This conclusion is supported by the Court'sJudgment on the merits in the Case
conceming the Temple of Preah Vihear. There, the Courtheld that in its Judgment on
jurisdiction, thesubject of the dispute had been defined asbeing confined to adifference of
view aboutsovereigntyover the region of the Temple of Preah~ihear)~.On this basis the
Court held that Cambodia's subsequentsubmissions callingfor pronouncements on other
rnatters couldbe entertained "only tothe extent that theygiveexpressionto grounds, and not
as claimsto bedealtwith inthe operative provisionsofthe~ud.gment"~~.
33 Orderof10 March 1998,para.38; emphasis added.
34 Templeof Preah Vihear,Merits, I.C.J. Re1962,p. 14.
35 Ibidp.36. 5.33 It is Iran's positionthat any claim that theUnitedStatesmayattemptto put forwardin
relation to events occuning outside the 1987-1988 time period must be dismissed as
inadmissible.
C. TheUnited States'failure properlvtospecifvits counter-claim
5.34 In its Reply, Iran pointedout that it was not clear whether the United States was
seeking to espouse claims in respect of any or al1of the specific incidents towhich it
refeneb6. TheRejoinderhas done nothing toclarifj~ the UnitedStates'positionin this respect.
On thecontrary,the UnitedStatesasserts, somewhatconfusingly,that:
"...first..the counter-claimis not dependenton anespousal of claims heldby U.S.
nationals and that the United States thereforehas the right to bring this claim for
breachof the 1955Treaty withoutsuch espousal, andin its own nght. Second,and in
the alternative,the United States submitsthat it is espousing the claimfor the U.S.
shipping on behalfofthe U.S. corporations whoownedthe~essels"~'.
As a result of the UnitedStates'indecision,Iran has been obliged todeal with the counter-
claim both as if it were adirect claimbythe UnitedStates andasif itwerean espousalclaim.
5.35 Iran also pointed out that it was not clear whetherthe United Stateswas making a
generic claim relatingto alleged violations offreedomofcommerce or navigation in thearea
at the time, or whetherit was making a number of specific claims reIated to particuIar
incidents involving certain identifiedves~els~~A . gain, this has not been clarified. In the
Introductionto the part of its Rejoinder dealing with the counter-claim,the United States
definesits claimas one for "darnagedoneto U.S. flaggedand U.S.owned vessels, as well as
to U.S. owned cargo andU.S. personnel"39.Elsewhere,it appears thatthe United States is
maintaining both its generic claim, leading to a claim for costs incurred "in deploying
additional forcesto the [Persian] Gulf to protect maritimecommerce", andalso its specific
claims for "reparation forhm done to U.S. flaggedand U.S. owned vessels andto U.S.
cargo and U.S.personnel"40.Yet elsewhere thereare suggestions -although these have not
36 Iran'sReply and Defenceto Counter-Claim, para. 9.16.
37 U.S.Rejoinder, para.6.32.
38 Iran's Reply andDefenceto Counter-Claim,para. 9.22.
39 U.S .ejoinder, para.6.04.
40 Ibid., para. 6.52. been forrnulatedinto a claim - that the United States considers thatIran should be held
responsible for additionalcosts incurredby merchantshippingbecauseof the war conditions
prevailing in the Persian GUI?, and the United States' reference to "general freedomto
conduct maritime navigationv4s 'upportsthis interpretation.
5.36 In this connection, Iran urges the Court to bear in mind its Judgmentin the Fisheries
Jurisdiction (Merits) case. There, the Federal Republic of Germany had includedin its
Memorial a submission, reminiscentof the United States' submissions on its counter-claim in
thepresent case,thatthe Court shouldhold:
"That the acts of interferenceby Icelandic coastal patrol boats with fishing vessels
registeredin the Federal Republicof Germany or with their fishingoperations by the
threat or useof forceare unlawfulunderinternationallaw,and that Iceland isunderan
obligationto makecompensationtherefor tothe FederalRepublic of ~erman~"~~'.
The Court took the viewthat it had jurisdictionto deal with this submission,since it arose
directly out of the question which was the subject-matter of Germany's Application.
Nevertheless, it stated that "the manner of presentation of this claimraises the question
whether the Courtis in a position to pronounce on a submission maintainedin such an
abstractform"". After notingthat Germany had stated -as hasthe United States inthe present
case - that while reserving its rights to claim full compensation, it was noa tt that stage
submitting aclaim for the payment of a certain arnountof money as compensation for the
damage,and that it was thus asking for a declaration of principle that Iceland wau snder an
obligation tomake compensation,the Court held that itwas "prevented frommaking an all-
embracing finding of liability which would cover matters as to which it has only limited
informationandslender evidenceV4'.
5.37 Iran submits thatthis holding of the Court shouldapplywith even greaterforce in the
present case.In the Fisheries Jurisdiction case, the events complainedof were still occumng
and developing atthe timeof the proceedings before the CourtI .nthe presentcase, the United
41 Ibid., paras.6.13, etseq.
42 U.S.Counter-Mernorialand Counter-Claim,para. 6.19.
43
Fisheries Jurisdiction(Federal Repziblicof Gerv.Iceland), Merits, I.C.J. Reports 1974, p. 203,
44 para. 71.
45 Ibid., p. 203, para.74.
Ibid., p. 205, para.76. States is relyingon eventsthat are allegedtohaveoccuned morethana decadeago.Therecan
be no reason, therefore,for the United States'failureproperly tospecifi its counter-claim, if
there were any real basisfor such a claim.The UnitedStates' counter-claim be heldto
be inadmissibleonthis ground.
D. The United States' lackof standingto esDouseclaims
5.38 In its Rejoinder, the United Statesdeclaresthat its counter-claimis not dependent
upon an espousal of claims. It neverthelessgoes on to fiame an alternative claimbased on
46
espousal .
5.39 Under customaryinternational law a fundamentalcondition for espousalof claimsis
that the State espousingthe claimmust have standingto do so. This conditionis linkedto the
question of nationality ofclaims. In order to determinewhether theUnited States' contention
that ithas standing to espouse "the claim for the U.S. shipping onbehalf of the U.S.
corporations who ownedthe ve~sels"~'is well-founded,it is therefore convenient tomakea
distinction between theU.S.-flaggedvesselsandthenon-U.S.-flaggedvessels identifiedinthe
counter-claim.
1. U.S.-flaggedvessels m
(a) TheSamuel B.Roberts
n
5.40 As a U.S. navalvesse1the Samuel B. Robertsby definitiondoes not raise issues of
L
espousal.It is therefore notdealtwith in thissub-section.
The BridnetonandtheSeaIsle Ci& ..
(b)
5.41 It is not disputed that,at the time of theincidentscomplained ofby the United States,
the two Kuwaiti tankersBridgetonandSeaIsle Ciy weresailingunderthe U.S.flag andwere
ownedbya U.S. corporation, ChesapeakeShipping,Inc. I
46 U.S. Rejoinder,para.6.32.
47
Ibid. 5.42 The Treaty ofAmityprovides,underArticle X(2), that vesselsunderthe flagof either
Party,andcarryingthe papers requiredbyits lawin proof of nationality,shallbe deemedto be
vesselsof that Party.Insupportof its claim relating to theBridgetonand theSea Isle Ciy, the
United States also relies upon thejudgmenitn theSaiga case before the InternationalTribunal
for the Law of the sea4',a section of which dealt with nationality ofclaims". On this point,
the Tribunal held thatunderthe 1982Conventionon the Lawofthe Sea:
"...the ship,every thingon it, andeverypersoninvolved or interested inits operations
are treated as an entity linkedto the flag State. The nationalitiesof these persons are
not relevant"50.
5.43 On this basis it declareditself"unableto accept Guinea's contention that Saint Vincent
and the Grenadines [the flag State] isnot entitled to present claims for darnages in respect of
natural andjuridical persons who arenot nationals of Saint Vincentandthe ~renadines"". It
therefore rejected Guinea's objection to admissibility in this regard.
5.44 Neither Iran nor the United States is apafty to the 1982 Convention. Rather,the
Parties are bound by Article X(2) of the Treaty of Arnity.Under that provision,the United
States would appearprima facie to be the proper State to bring a claimin respect of U.S.-
flagged vessels.
5.45 However, in the present caseit is necessary to take into considerationthe particular
circumstances surroundingthe flaggingof the Bridgeton and the Sea Isle City. As Iran has
alreadyshownin its Reply,thesetwovessels were Kuwaitioil tankers which flewthe Kuwaiti
flaguntil,forpurelypolitical purposes, they were reflagged underthe U.S. flaginmid-1987".
5.46 A convenient summary of the facts surrounding thereflaggingof the Kuwaiti tankers
is to be found in ajudgmentof the UnitedStatesCourt of Appeals for the ThirdCircuit,dated
48
49 Ibid., para. 6.30.
WV "Saiga" (No.2) Case (Saint Vincent and theGrenadinesv. Guinea) (1999), 38 I.L.M. 1323,at
p. 1346.
50 Ibid., at p. 1347.
51 Ibid.
52 Iran's Reply and Defence to Counter-Claim, paras1.et seq. 29 April 1991, in the case of Cruz et al. v. ChesapeakeShippingInc.,Kuwait Oil Tanker
Company,KuwaitPetroleumCorporation. KPC (U.S.Holdings) Inc.e .t The problem
facing theCourtwasdescribedas follows:
"Thisappeal,arisinginthe contextof the unanticipatedjuxtapositionof foreignpolicy
decisionswithdomesticregulationof employeeworking conditions,presentsthe novel
questionof whetherthe temporaryreflaggingof former Kuwaitioil tankersunder the
United States flag renders the Fair Labor Standards Act, 29 U.S.C. $ 201, et seq.
("FLSA" or "the Act"), applicable to foreign seamen employedon ships operating
entirelyoutsidethe United States. In1987,as a resultof the hazardsthe Iran-Iraq war
posed to neutral shipping operationsin the PersianGulf,elevenKuwaitivessels were
reflaggedto gain theprotection ofthe UnitedStates.The plaintiffs,228 Philippine
seamen employed on these vessels, claim that the reflagging, which required
compliance with extensive United States maritime statutes, entitled them to minimum
wages and benefitsunderFLSA"~'.
5.47 The Court of Appealsthen summarisedthe background tothe cases5.It noted, inter
alia,hat:
- Kuwait's assistance toIraq in its war with Iran placed its shipping operations
particularlyat risk;
- Chesapeake Shipping,Inc. was chartered on 15 May 1987 for the specific
purposeof satiseing the statutoryrequirementthat, uponreflagging,ownership
of the vessels be transferredtoa U.S.entity;
- Kuwait Petroleum Corporation, wholly ownedby the Kuwaiti Government,
was at the apexof the corporate structure.It whollyowned KuwaitOil Tanker
Company("KOTC"),which inturn wholly ownedChesapeake;
- Priorto the reflagging,KOTCowneda11elevenvessels.In consideration foral1
of Chesapeake's stock,KOTC transferred title to the eleven vessels to
Chesapeake.Upon transfer of the titleto Chesapeake,Chesapeakeimrnediately
time-charteredal1the vesselsback to KOTC;
53 Exhibit7.
5‘1 Ibid.,pp2017-2018;emphasisadded.
55 Ibid.,pp2018-2023. - In order for Kuwait to benefitf-roman exception to themanning requirement
regarding the employmentof U.S. nationals, Congress exacted a promise f-rom
Kuwait that the vessels would remain in "foreign trade"so that the waiver of
dry-docking and other requirements didnot "skew the market place"; and,
pursuant to this promise,none of the vessels ever did cal1at a United States
port.
5.48 Onthe basis ofthesefactualfindings,the Court held that:
"The technical formalityof transfening the vessels to an American corporation for
politicalpurposes in no way altered the entirely foreign characterof the shipping
operations or the duties ofthe~earnen"~~
and that:
"...foreignsearnenemployedon vessels engaged in foreign operations entirely outside
of the United States,its waters and territoriesdo not become subject to FLSA when
their vessels are transitorily reflaggedder the United States flag and transferredto a
corporation charteredunder the laws of an American state and imrnediately leased
back tothe foreign operatingc~rn~an~"~'.
5.49 In addition to these findings by the U.S. Court of Appeals, it will be recalled that it
wasKOTC that performed repairsto the vessels whentheywere darnagedduringthe Iran-Iraq
58
war .Chesapeake Shipping, Inc.,on the other hand, played a purelynotional role in the
vessels' operations. This is unsurprising, given that in a statemebnt the Hon.John Gaughan,
Maritime Administrator of the Department of Transportation, before theHouse Merchant
Marine and Fisheries Committeeon 18June 1987, Chesapeake was describedas a "paper
company", formedby Kuwaitin order to circumvent U.S. requirements for the registrationof
shipsJ9.An article -tten at the time and commenting on this statemenfturther indicated that
56 Ibid., p.2031.
57 Ibid., pp.2036-2037.
58
59 U.S .ounter-Mernorialand Counter-Clairn,Exhibits45 and 89.
See, Mertus, J., "The Nationality of Ships and International Responsibility:The Reflagging of The
Kuwaiti Oil Tankers", Denver Journal of International Law and Policy, Vol. 17, No. 1, p.207, at
pp.209-210and h.18;Exhibit 8. "The address of Chesapeake is listedcare of Prentice Hall Corporate Systemshc., but
Prentice Hallhas been unable to supply anydetails of Chesapeakeexecutives,thus adding
weightto the hypothesisthatthe Companyis littlemorethanashelln6'.
5.50 Whilethe rules relating to nationalityof individualsare notdirectlyapplicableto the
nationality of ships, analogies may be drawnfrom the Judgmentof the Court in the Nottebohm
case, where the Court held,in a statement echoed, mutatis mutandisb ,y the Tribunal in the
Saigacase6[,that:
"... it is for everysovereign State,to settle by its ownlegislationthe rules relatingto
the acquisition of its nationality, and to conferthat nationality by naturalization
grantedby its own organs in accordance with that legislationI .t is not necessary to
determine whether internationallaw imposes any limitations on its freedom of
decisionin thisdornainW6*.
However, the Courtwent on to state that, in order to appraisethe international effect of a
naturalization"it is impossibleto disregard the circumstancesin which it was conferredM6'.
After reviewingthosecircumstances,the Court concluded that:
"Naturalizationwas asked for not so much for the purpose of obtaining a legal
recognition ofNottebohm'smembership in fact in the population of Liechtenstein,as it
was toenablehim to substituteforhis statusas a national of a belligerentStatethat of
a national of a neutralState,with thesole aim of thus comingwithinthe protectionof
Liechtenstein.. . .64
On thisbasis,the Court held that Guatemala, the respondent State,wa usnderno obligation to
recognize a nationality granted insuch circumstances; as the Court held,the change of
nationality in the circumstances was notopposableto Guatemala.
60 Ibid., p.210,fn18.
61 MV Saiga caseop. cit., p. 1340,paras.and65.
62 Nottebohm,Second Phase,I.C.J. Reports 1955,p.4, at20.
63 Ibid., atp.24.
64
Ibid., p.26. 5.51 It is true that in the Saiga case, the InternationalTribunal for the Lawof the Sea,
basingitselfonthe 1982Convention,held that Guineacould not "refuse to recognize theright
of the Saiga to fly the flag of Saint Vincent and the Grenadineson the ground that therewas
no genuine link betweenthe ship and Saint Vincentand the ~renadines"~'.But the argument
in that case concernedquestions of the interpretation and applicationof the law of the flag
tat te^a^d,hadnothingto do with the questionwhethershipsengagedin non-neutral service,
or enemy ships,can be protected under cover of a changeof nationality unaccompaniedby
any underlyingchange in ownership or use. That issue wasnot raised by the facts of Saiga.
Moreover the Tribunal heldthat a genuine link existedinthatcase.
5.52 In the present case, in marked contrast, theowner of the Bridgeton and the Sea Isle
Cis, the Kuwait Oil Tanker Company, asked for the reflagging toenable its vessels to
substitute for theirstatus of vessels belonging to a State whichwas knownto be assistingIraq
in its war effort,the status of vessels belonging to apurportedIyneutral State, with the sole
aim of comingwithin the protection ofthat state6'.
5.53 Mention may alsobe made in this connection of the I'm Alone case, which is relied
upon by the United Statesin support of its contention that it has standingto espouse the
claimsof U.S. owners of foreign-ffaggedves~els~~ n that case,an espousalclaim by the flag
Statewasrejectedbecausethe beneficial ownersof theI'mAlonehad artificially registered the
vesse1under a foreignflag for purposes of evadingtheir own national la^^^ Fo.r that reason
no compensatorydamageswere awardedin respectoftheclaim.
65
WVSaiga case, op. cit.p,1343,para. 86.
66 By contrast, in Nottebohm, the Court expresslyrefrainedfromconsidering "thevalidity of Nonebohm's
naturalizationaccordingto the lawof Liechtenstein".I.C.J.Reports 14,5at p. 20.
67 As thisCourt noted, thepurpose of Nonebohm'schangeof nationalitywas "to enable him to substitute
for hisstatus as a nationalof a belligerent Statethat of a nationalof aate, with thesole aimof
thus coming within theprotection of Liechtensteinbut no..assuming theobligations- other than
fiscalobligatio-sand exercising the rightspertaining to thestatusthus acquired"; I.C.J. Reports 1955,
p.4,atp. 26. Mutatis mutandis that ispreciselythe position with thereflagged Kuwaiti vessels.
68 U.S. Rejoinder, para.6.35. As will be shown below, the UnitedStates' argumentsin this regard are
unfounded.
69 3 R.I.A.Ap. 1609. 5.54 Iran submits, therefore, giventhe wholly artificial and political nature of the
reflagging, undertaken withthe sole aim of allowing non-neutralKuwaitiinterests to come
under the protection of the United States, thatIran is under no obligation to recognise a
reflagging granted insuchcircumstances, and thatno claimcanbe madebythe United States
with regard to the vessels concerned. Moreover, the reflagging policy was adopted with
respect to aStatewhichwasclearly engagedin non-neutralbehaviour in an armed conflict. By
clear analogy fiom the Nottebohmdecision, the reflaggingwas not andis not opposable to
Iran.A similar conclusionmay be reached on thebais of the United States'own Manual of
Naval Warfare,discussed belowat paragraph7.12.
5.55 It is a further requirement for espousal ofclaims that the claimantshould have the
nationalityof the espousing State both atthe time of the incident that gives rise to the claim
and at thetime of introduction of theclaim. It is also generallyheld thata claimant should
retain that nationality untilthe end of the case, unless the change ofnationalityis beyondthe
controlofthe claimant. Therule is statedby Oppenheim asfolIows:
"Fromthe time of the occurrenceof the injuryuntil themakingof theaward the claim
rnust continuously and without interruption have belonget do a person or series of
persons (a) having the nationality of the Stateby whom it is put forward,and (b) not
havingthe nationality ofthe State againstwhornit isput fonuard"".
5.56 The principle of continuity appearsto be recognisedby the United Statesas applying
at least until the dateof presentationof the claim.In 1982,the Assistant Secretaryof State for
Congressional Relations wrote a letter to the Chairmanof the House Cornmitteeon Foreign
Affairs, in which he stated that"under the long-establishedrule of international law of
continuous nationality,no claimant is entitled to diplomatic protection ofthe state whose
assistance is invoked unlesssuch claimant was a nationalof that state atthe time when the
claim arose and continuously thereafter until the claim ipresented"71.
70 Je~ings, R.Y. and Watts, A. (edOppenheim'sInternationaLaw,9" ed.(1992)p.512.
71 76A.J.I.L., p. 836. 5.57 The United Stateshas however providedno evidence that theBridgetonand Sea Isle
City remainedU.S.-flaggedas of the date of the counter-claimand remain so today; or indeed
that Chesapeake Shipping, Inc., the U.S. Companythat wasspecially created to take over
ownership ofthetankersin orderto permit theirreflagging,wasandis still in existence.
5.58 In surn, the apparent U.S. nationality of thereflagged tankers was not their real
nationality, as hasbeen confirmedby the United States courts and othersA . s a consequence,
such apparent andartificial nationality cannot be opposableto Iran, and the counter-claim
mustbe dismissed insofaras it relatesto theBridgetonandSeaIsleCity.
2. Non-U.S.-flagged vessels
5.59 Asnotedabove,theSaigajudgment held that:
"...the ship, everything on it, and everypersoninvolvedor interested inits operations
are treated as anentity linked to the flag State. The nationalities of these persons are
notrelevant1"*.
5.60 In the lightof this decision, itmay be questioned whetherunder modern international
lawa State has standingto espouseclaimsof its nationalswhensuchnationalsare the owners
of a vessel flying the flagof another tat te"T he same question wouldarise if the United
73 See, para. 5.42,above.
Thisjudgrnentappearsto supersedethe determinationsmadein the muchearlierAlliance and I'mAfone
cases,datingfrom 1903and 1935.In any event,as notedaboveinparagraph5.53, in the I'mAfonecase
the nationalityof the ownerss only held to be relevantbecausethey had artificially registered the
vessel under a foreignflag for the purpose of evadingtheir national law.segard,cjby analogy
the Court's Judgmenitn Barcelona Traction,where iwas held tha"...the liftingof the veil is more
frequently employedfromwithout, in thenterestofthosedealingwith thecorporate entity" (Barcefona
Traction,Light andPower Company,Limited,Second Phase,I.C.J.Reports 1970, p. 39, para. 57).See,
also, the IMCO case, where the Court held that the term "largestship-owning nations"in the IMCO
Conventionreferredto registered tonnage andnot to beneficiaowned tonnage (Constitution of the
MaritimeSafey Committee of the Inter-GovernmentafMaritimeConsultative Organization, Ahisory
Opinion, I.C.J. Reports1960, p. 170). As a commentatorhas stated, "After the IMCO Opinion, there
can be little doubt that irrespective of ownership, registration alone is sufficient to determine the
nationalityof shipsas far as internationallaw is concerned"(Mertus,J., op.&., p. 218; Exhibit 8). See,
finally, the U.S. case of Lauritv.Larsen, relied upon bythe United States, which declares that
"Perhaps themost venerable and universal mle of maritimelaw relevant to our problem is that which
gives cardinal importanceto the law of the flag..ionalityis evidencedto the world by the ship's
papers andits flag"(U.S. Rejoinder, Exhibit256). States, as it suggests elsewhere,also purported to espouseclaims of U.S.owners of cargo,
U.S. personnel andU.S.operatorsof vessels".
5.61 As will be shown,however, the debate islargely academicin the present case,since
evenif it wereadmittedthat the United Statescouldespousethe claimof an owner of a non-
U.S.-flaggedvessel,suchanespousalwould remain inadmissible.
5.62 It is a requirement of internationallaw that, with certainspecificexceptions75,a State
may only present a claimin respect of an injury to its nationals. The Permanent Court
expressed thisrule asfollows:
"... it is the bond of nationality between the Stateand the individual whichalone
confers upon the Statethe right of diplomaticprotection, andit is as a part ofthe
hnction of diplomaticprotection that the rightto takeupa claimand toensurerespect
for the rules of internationallaw must be envisaged.Wherethe injurywas done to the
national ofsomeother State, no claim to which suchinjurymay give rise falls within
the scopeof thediplomatic protection which a State is entitled toafford nor can it give
riseto a claimwhichthat Stateis entitledto e~~ouse"~~.
5.63 The present Courtrefened to this "traditional rule that diplomatic protection is
exercisedbythe nationalState"in its Advisory Opinionin theInjuriescase7'.The Courtwent
on to find in that case thatas an exception to this rule the UnitedNations was nevertheless
entitled to exercise diplomatic protection on behalo ff individualsin its service. In his
Dissenting Opiniononthat point,Judge Hackworth statedtheprinciplethat:
"Nationalityis a sine qua non to the espousal of adiplomaticclaim on behalf of a
private claimant ...If the private claimant is not a national of the State whose
assistance issought,the governmentof that State cannotproperlys on78r the claim,
nor is therespondentgovenunent underany legal duty toentertainit" .
74
75 U.S. Rejoinder,para.6.04.
As has been seenat para5.42above, accordingto the Saigajudgrnent thisprinciple is derogated from
when the flag Stateof a vessel has the right to present a clairn on behalf of persons involved or
76 interestedinthe vessel'soperations.See, also, para.5.63,below.
Paneve~s-SaldutiskisRailway,P.C.I.J.SeriesAB, No. 76,p. 16.
77 Reparation forInjuriesSufferedin theService of the United Nati, dvisory Opinion,I.C.J.Reports
1949,p. 174,atp.181.
78 Ibid.,DissentingOpinionby Judge Hackworth, atpp. 303-203. A similarstatementof principle was made by JudgeBadawiPashain his Dissenting Opinion
inthe samecase79.
5.64 The UnitedStatesappearsto acknowledgethe existenceof this principle80,but asserts
thatal1the vesselsin respect of which it is claimingareeitherU.S.-flaggedor u.s.-owneda'
(althoughit laterretractsthis statement inrespectof onevessela2).
5.65 As regardsthe four non-U.S.-flaggedmerchantvesselss3,however,and as has been
showningreaterdetailabove":
- TexacoCaribbeanwas owned by a companyincorporatedin Panama, andwas
bareboatchartered to anotherPanarnanian company (no to a U.S. company,as
theUnitedStatesasserts);
- LucyandDianewereownedbycompaniesincorporated inLiberia; and
-
EssoFreeportwasownedbya company incorporated intheBahamas.
As the Restatemen( tThird),Foreign Relations LawoftheUnitedStates acknowledges:
"For purposesof international law,a corporationhas the nationalityof the stateunder
the lawsofwhichthe corporation isorganized"*'.
The counter-claimregarding al1four non-U.S. flagged vesselsis therefore inadmissiblenot
onlyon its faceand underinternational law,but alsounderthe United States' own law.
79 Ibid.,DissentingOpinionby Judge Badawi Pasha,at p. 206.
80 U.S. Rejoinder,para. 6.32.
81 Ibid.,para.6.05.
82 Ibid., paras. 6.06 and 6.33, where the United States acknowledgesthat the Texaco Caribbean was
Panamanian-owned, butcontends that it was bareboatcharteredby a U.S. corporation and was canying
83 US.-owned cargo whenit was attacked.
Of the othervesselswhich are the subject of the Unitedinadmissiblenew claims, or with regard
to whichthe United States reserves a purported right to bring newclaims, only theSungari appears to
have beenUS.-owned. The Esso Demetia was U.K.-owned,and theUnited States does not even allege
that thereeother vesselswere US.-owned.
84 See,paras.4.18,4.39,4.42 and 4.45, above.
85 Restatement of tLaw, Third, TheForeignRelationsLaw ofthe UnitedStates, Vol.§213,Exhibit9. 5.66 However, the UnitedStatesappears tosuggestthat the corporate veilcanbe pierced to
allow itto bnng a claimon behalf of the ultimate holdingcompanyof eachof the non-U.S.
companies thatactuallyownedthe vessels.
5.67 Thisnuis directlycounterto the Court'sJudgrnentintheBarcelonaTractioncase. The
language of that Judgrnent could not have been clearer in finding (as the United States
adrnitted in its~ounter-~ernorial'~)that under customaryinternationallaw one Statedid not
havestandingtobringa claim on behalfof shareholdersforinjuryto a company formedunder
another State'slawS7.Inits Judgment,the Court setoutthe principleas follows:
"Municipal law determines the legal situation not only of such limited liability
companies but alsoof those persons who hold sharesin them. Separated from the
company by nurnerous barriers, the shareholdercannot be identified with it. The
concept and structureof the company are founded on and determined by a firm
distinction betweenthe separate entity of the companyand that of the shareholder,
each with a distinctsetof rights.The separationofpropertyrightsasbetweencompany
and shareholderis an important manifestation of this distinction. So long as the
company isinexistencetheshareholderhasnoright tothe corporate as set^"^^.
TheCourt furtherheld that:
"Not a mereinterest affected, but solely aright infringedinvolves responsibility, so
that an act directed against and infringionlythe company's rights does not involve
responsibilitytowardsthe shareholders, eveniftheir interests areaffecteduS9.
While the Court did canvassthe possibilityof adoptinga theoryof diplomatic protectionof
shareholders, itfirmlyrejected it, since "by openingthe doorto competing diplomatic claims,
[it] could create an atmosphere of confusion and insecurity in international economic
relation^"^^.
86
87 U.S .ounter-Mernorialand Counter-Clairn, para. 6.24,h. 398.
See, in addition to the passages relied on by the I.C.eJeports 1970, p. 34, paras. 39, et
88 seq.,utliningthe consequences of separate corporatepersonality.
89 Ibid ..34, para.41.
Ibid ..36, para.46.
W Ibid ..49, para.96. 5.68 A solutionsimilarto the Barcelona TractionJudgmentwas reachedin theArbitration
between the Reparations Commission and theGovernrnentof the United rare.? '.here a
number of vessels hadbeen deliveredto the Reparations Commissionunder the terms of the
Treaty of Versaillesas being the "propertyof German nationals".The ships belongedto the
Deutsch Arnerikanische Petroleum Gesellschaft,a Company with registered offices in
Hamburg.Thiswas, however, a wholly-owned subsidiaryof the Standard Oil Companyof the
United States. The Standard Oil Companyclaimed that it had beneficial ownership in the
vessels, that theywere accordingly not the property of German nationals, and that theh yad
therefore been inconectly handed over to the Reparations Commission.The matter was
submittedto arbitration, andthe U.S. contentionwas rejected: the mere fact thatvirtuallythe
entire interestin the GermanCompanywas heldby a U.S. concem did not entitle the United
Statesto espousethe company's case9*.
5.69 Despite the clear consequences of theBarcelona Traction Judgment for the U.S.
counter-claim,the United States relieson this Judgment to argue that "where the Court has
foundthe nationalityof the injuredentityto beof relevance in precluding a claim, it has done
so out of concem that the rights of the State of nationality be respectedNg3I.t makes this
argumentin supportof its alleged right to bring a claim on behalfof the "U.S.owners"of the
non-U.S.-flaggedvessels, asserting that the flag States in question have consente dereto". In
fact, given that the non-U.S.-flagged vessels did not have "U.S. owners", the Barcelona
Tractionjudgment appears to be more directly relevantto consideration of whetherthe United
States is entitled to bring aclaim on behalfof the U.S. shareholdersof a foreign corporation.
Yet nowhere did the Court suggestin Barcelona Tractionthat a State shouldbe allowed to
91 8 B.Y.B.I.L.,p. 156.
92 See, Watts,A.D., "The Protection ofMerchantShips",33 B.Y.B.I.L.,p. 52,at p. 81.
93 U.S. Rejoinder,para. 6.34,referringto Reports1970,paras. 85-103.
94 U.S. Rejoinder, para. 6.34, and Exhibits 179 and 258. Exhibits 179 and 258 purport to contain such
consent by the national State of the respective ownersof the vessels. As has alreadybeen pointed out
above, Exhibit 258, which is presented as Liberia's consent,is no such thing (see, paras. 5.21-5.22,
above). Moreover, while thecommunicationsin Exhibit 179 from the United Kingdom,the Bahamas
and Panamado indicatehose States'consent tothe presentationof claimson behalfof the ownersof the
vessels, theUnited States'communicationswhich elicitedthese responses were misleading,in that they
referred to U.S. owners of the vessels, and madeno mentionof the fact thatthe owners of the vessels
were in fact nationalsof the Statesconcemed. exercise diplomaticprotection of the shareholders ofa company ifthe company's national
Stateconsentsto the exerciseof suchprotection95.
5.70 The United States has dso relied on the ElettronicaSicula S.P.A.(ELSI)case for the
propositionthat "thejurisprudence of this Court recognizesthat it is appropriate to protect
ownershipinterestsunder contemporary commercial treatiesin appropriatc eircum~tances"~~.
5.71 Reference to the ELSI Judgment shows, however, that the facts and the treaty
provision that had allegedly been violated were noitn an way analogous to those in the
present case. The facts related to the requisitionby the Italian Government of the Italian
subsidiary oftwo U.S. corporations. The relevanttreatyprovision concemed the freedom of
nationals, corporationsand associations of eitherparty to "acquire, own and dispose of
immovable property or interests therein" within the temtories of the other and the
argumentturnedlargelyon the questionof whether "interests"in this particular context could
be interpreted as including indirect ownership ofproperty rights held through an Italian
subsidiary.No suchquestions arisein the present case.
5.72 Moreover, in theELSI case, the State againstwhichthe complaintwas filed was the
State in which the company concerned had been incorporated. As the Court stated in
Barcelona Traction, "a theory has been developedto the effect that the Stateof the
shareholders has a rightof diplomatic protectionwhen the State whose responsibilityis
invoked isthe national Stateof the c~m~an~"~R ~.egardlessof the correctnessof this "theory"
in other cases (a matter on which Iran specifically reserves its position), it is clearly
95 A furtherobservationof the Court inBarcelona Tractionmaybe noted:
"Itshouldalso be observed that the promotersof a company whoseoperationswill be international must
take intoaccount the fact that Stateshave, with regardto their nationals,a discretionary powerto grant
diplomaticprotection or to refuse it. When establishing acompanyin a foreignry, its promoters
arenormally impelled by particular considerations;it is often a question of tax or other advantages
offeredbythe host State. Its not seemto be inanywayinequitablethat the advantagesthusobtained
shouldbe balanced by the risksarisingm the fact thattheprotectionof the Companyand henceof its
shareholdersis thus entrusted to a State otherthan the nationalStateof the shareholders".I.C.J.Reports
1970,p. 50, para. 99.
In the presentcase a similar observationmight be made regardingthe decision of U.S. companies to
incorporatetheirship-owning subsidiariesreignjurisdictions.
96 U.S . ounter-Mernorialand Counter-Claim,para.6.24 (emphasisinoriginal),referringto I.C.J. Reports
1989,para.132.
97 1C.J.Reports 1989,p. 77, para131.
98
I.C.J.Reports 1972,p. 48, para. 92. inapplicablehere. Again,therefore, therecan be no analogy in thepresent casewhich would
requirethecorporateveilto be pierced.
E. Thequestion of ~rior ne~otiations
5.73 In its Reply, Iranpointed out that the United States hasnot metits obligations,under
Article XXI(2),to make a bonafide attempt to adjust the dispute by diplomacy before
submitting it to the Court, and that this makes thecounter-claiminadmissib~e~~ T.he United
Stateshas failedto respondto this point in its Rejoinder. Iranwill therefore not repeathere
what hasalreadybeensaidin its Reply,butwould simplyreiteratethatthecounter-claimmust
be declaredinadmissible also on thisground.
99
Iran's Reply andDefenceto Counter-Claim,paras.9.18, et seq. CHAPTERVI
"FREEDOMOFCOMMERCEBETWEEN THE TERRITORIES OF THETWO
HIGH CONTRACTING PARTIES" INTHECONTEXTOFARTICLE X(1):IRAN
DID NOTBREACHARTICLE X(1)OFTHE TREATY
6.1 In this Chapter, Iran will demonstrate that the contentions of the United States in its
Rejoinder with respect to Iran's alleged infringementsof Article-contentions that are
entirely false, on factual grounds, aseen shown in ChaptersIIIand IV above -are also
unfounded on legal grounds. Iran willbase this demonstration on an analysis of Article
and in particular of the words "freedom of commerce betweenthe territories of the two High
Contracting Parties" as interpreted by the Court itself in its two previous decisions in the
present case.
6.2 Iran will show, once again: first, that the United States' allegationsmust be considered
and dismissed in the light of the Court's own interpretation ofthe concept of "freedom of
commerce" embodied in Article X(1); second, that the United States' interpretationof the
phrase "between the territories of thetwo High Contracting Parties" is incorrect and,
moreover, inconsistent with its own arguments with regard to Iran's claims; andly, that
neither the United States'generic counter-claimnor its specific counter-claims fa11within the
arnbitof the protection granted by Article of the Treaty of Amity.
6.3 Iran will repeat here only to the extent necessary the assertions that it has made
previouslyduring these proceedings beforethe Court.
Section 1. The alleged Iranian attacks on vessels owned, flagged, re-flagged or
chartered by the United States or its nationals do not constitute a breach
of "freedom of commerce1'as guaranteed by Article X(1) of the Treatv of
6.4 In its Reply, Iran explained in detail its understanding of the term "freedom of
commerce" as incorporated in Article X(l) of the Treaty of Amity. Since this point is also
relevant to the counter-claim, some further analysis is required in order to shed light on thedivergence (and also the convergence)between the Parties in their interpretationof this
expression. In this Section,Iran will demonstrate the inconsistency of the position taken by
the United Statesin definingfieedom of commerce.As will beseen,whilethe UnitedStates
argues for a strictand limited conceptionof such fieedom when faced with Iran'sclaims,it
inconsistently argues for a broad interpretatioo nf the same provision in relationto its own
counter-claim.
6.5 Iran will first briefly recall its position relating to the definitionof "fieedom of
commerce"(bothper se and in relation to the fieedomof navigation) as interpretedby the
Court. It will then show that, contrary towhat the United States argues, the provision of a
military escort to commercial navigation cannob t e considered as an activity ancillary to
commerce and thus doesnot fa11within the scopeofArticleX(1)ofthe Treaty ofAmity.
A. The notion of "freedomof commerce"as interpreted bv the Court
6.6 As Iran stated in its Reply, theCourt hasalready provided a definitive definition of
"fieedom of commerce" inits 1996 ~ud~ment'(as reiterated in its 1998 0rder2), thereby
confirming the position taken by Iran in this regard3. The Courthas made it clear that
ArticleX(l) does not protect "commerce"as such, but "j?eedornof ~ommerce"~.In this
context, the Court has defined the word "commerce" in broad terms:
"...it wouldbe a natural interpretationofthe word 'commerce'in Article X p,aragraph
1,of the Treatyof 1955that it includes commercial activities in general -not merely
1 Judgmentof 12December 1996, paras.45-52.
2 Orderof 10March 1998, para.35.
3 See, also, Judge Shahabuddeen'sSeparateOpinionappendedto the 1996Judgment, atpp. 1, 12and 13.
Subsequent doctrinalommentaries further strengthenthe view that in its 1996 Judgment, the Court
made a definitive interpretation of the relevant provisionsof the Treaty of Amity.., Jos, E.,
"Affaire des plates-formes pétrolières, n. Etats-Unis", AFDI, Vol42 (1996), p. 408; Bekker,
P.H.F., "Internationaldecisions. Oil Platforms",.L., Vol. 91 (July 1997), p. 522: "Although a
prelirninary holding onjurisdiction cannot decide or prejudge the merits, some of the Court'sfar-
reachingand definitivestatementson the interpretationof AX(l)of the Treatymay create serious
disadvantages for the United States when defending itsactions at the merits stage"; Ruiz-Fabri, H.,
Sorel, J.-M., "Jurisprudence. Cour internationale deJustice. Affaire des plates-formes pétrolières",
Journal du droit international (Clunet), Vol.1997), p. 869; Evans, M.D., "Oil Platforms(Islamic
Republic of Iran v. United States of America) PrelirninaryObjection",International and Comparative
LawQuarterly, Vol.46 (1997), p. 699.
Judgrnentof 12 December 1996,para.50;emphasisinoriginal. the irnmediate act of purchase and sale, but also the ancillary activities integrally
relatedto c~mmerce"~.
6.7 The following passages of the Judgment reveal what exactly the Court meant by
"ancillaryactivities integrally relatedto commerce". For instance,it is stated that unlessthe
fieedom of commerce protectedunderArticle X(l) is to be rendered illusory:
"...the possibility must be entertained that it could actually be impededas a result of
acts entailing the destructionof goods destined to be exported, or capable of affecting
theirtransportand theirstoragewith a view toe~~ort"~.
The Court also notedthat:
"Iran'soil production, a vital part of that country's economy, constitutesan important
componentof its foreign trade [commerceextérieurin the Frenchversion]"'.
6.8 It follows that the Court has clearly interpreted the "freedom of commerce" that is
protected by Article X(l) and has precisely circumscribed the scope ratione materiae of this
provision. When dealing with the United States' counter-claim, the Court explicitly referred to
its previous interpretation and acceptedjurisdiction only insofar as the allegedactions said by
the United States tobe "dangerous and detrimental to maritime commerce" were "capable of
falling within the scope of Article X, paragraph 1,of the 1955 Treaty as interpretedby the
courtN8.In the context of its counter-claim, the United Statescannot contest this definitive
finding with regard to the interpretation of "freedom of commerce" as guaranteed under
Article X(1).
6.9 In an attempt to circumvent the limitation of the Court's jurisdiction to "freedom of
commerce" under Article X(l), the United States has arguedin its Rejoinder thatthe freedoms
of commerce and navigation "are tightly interconnected and shouldbe considered togetherU9.
5
6 Ibidp.ara. 49; emphasis added.
Ibidp.ara. 50; emphasis added. This passageand theprecedin; passage werequoted by the Court itself
in its 1998Order (para. 35).
7 Ibidp .ara. 1;emphasis added.
8 Order of 10March 1998,para. 36;emphasisadded.
9 U.S. Rejoinder, para.6.m.,441.This assertion is simplistic, in thatit seeks to assimilate freedom of navigationto maritime
commerce, while thelatteris conceptually narrowerthanthe former.Manyexamplescouldbe
envisaged of vessels primafacie protected by a guarantee of freedom of navigation but
obviously excluded from the guaranteo ef freedom of c~mmerce'~F . orexample,pleasure craft
or vessels conducting scientific investigation (such as oceanic research) would fail under
freedomof navigationbut wouldnotbe includedunderthe headingof freedom of commerce.
Afortiori, this lineof reasoningmust apply to warships. Accordingly, fieedom of commerce
and freedomof navigation cannotbe assimilated orsystematicalIylinkedto each other;they
mustbe envisaged separately.
6.10 This beingsaid, Iranhas alwaysrecognised that the maritime transport of commercial
goods, as well as other ancillaryactivities integrally relatedto commerce(such as -but not
limited to - production and storage) fa11within the scope of ArticleX(1). Thus, it is
indisputable - and Iran has never sought to dispute - that maritime commerce betweenthe
temtories of the two HighContracting Parties falls within the scope of freedomof commerce
underthe relevant provision. This point has been made in relatiotn o the oil platforms,which
undoubtedly performboth production and transportation activities in the seas and are thus
wholly incorporated in the notionof maritime commerce1'.Accordingly, Iranacknowledges
that commercial navigation is potentially within the jurisdiction ofthe Court in the present
case. On the otherhand - and thetwoParties disagree on this specificpoin t non-commercial
navigationis distinct andis excludedfrom the scope of the jurisdiction of theCourt on the
basis of ArticleX(l) of the TreatyofAmityas interpretedbytheCourt.
6.11 The United States' attempts to include freedom of navigation within thejurisdictionof
the Court are closely intertwined with its contention that paragrapho1 f Article X must be
"viewed withinthe context of Article Xas a whole, and specificallythrough reference to
Article X, paragraph 5''12.Iran will not return here to the United States' argument that
paragraph1mustbe readin conjunction with the other paragraphs of ArticlX e. This question
10 As in the present case,sinceArticleX(6) of the Treaty of Arnityexpresslyexcludesvessels of war and
fishingvesselsfrorn thebenefitof ArticleX(1).
II See, Judgmentof 12December1996,paras. 50-51,quoted inpara.6.7, above.
12 U.S. Rejoinder,para. 6.28.has alreadybeen addressed several times in thepast and, above all, as noted in ChapterV
above,becausethe Courthas alreadydealtwith thisissue.
6.12 However, itis necessary brieflyto comment upon the United States' contention that
Iran has infringedparagraph 1of Article X since, by allegedly attacking non-commercial
vessels, it has breached the obligation embodied in paragraph 5 of the sarne ArticleI3.By
virtue of this paragraph,each Party's vessels are entitledto "receive friendly treatment and
assistance". The UnitedStates has claimed that since Iran allegedly attacked U.S. owned,
chartered, flagged,or re-flagged vessels, the latterweredeterred from seekingsafe harbour in
Iranianports. Iranhas alreadyhighlighted the weaknessesof this argumentin its ~e~l~'~A . s
Iran pointed out at the time, paragraph5 containsan independent guaranteeconceming only
vessels in distress;it ishus irrelevant in thepresentproceedings,that are clearly limitedto
claims based on paragraph 1. This discussion need not be repeated in detail, since no new
facts andno newlegalarguments havebeen put fonvardbythe UnitedStatesin its Rejoinder.
6.13 The claim conceming the Samuel B. Roberts is discussed in further detail below".
This claimis no morethan an in extremisattempt abusivelyto stretch the Court's jurisdiction
to include"fieedomof navigation".As Iran hasalreadynoted, itis clear thatin the context of
ArticleX as a whole, vesselsof war only benefit from the discrete guarantee in paragraph5;
theyare expresslyexcludedfromparagraph 1 16Bydefinition, military vesselsdo not conduct
commerceand arenot even indirectly engaged in commerce. Thus the only wayof bringing
the alleged Iranian attack on the Samuel B. Roberts within the Court's jurisdiction inthe
present casewould be by reference to "fieedom of navigation". Consequently,the United
States' claimwith regard to the Samuel B. Roberts is doomed to failure, since "freedom of
navigation"doesnot fa11within thejurisdiction of the Court in the present proceedings.
13 Ibid.
14 Iran's Replyand Defenceto Counter-Claim,paras.9.6and 9.11.
15 See ,ections 1.B.and 3, below.
16 See ,ran's Replyand Defenceto Counter-Clairn,para.9.11. 6.14 A fortiori, there is no basis for the United States' contention that Iran's alleged
violationof rules of international humanitarian law constitute pser se an infringementof the
Treaty of Arnity,let aloneof ArticleX(1),protecting fieedom of commerceI .t is clearthat the
elementsto be proved in order to establish thatArticleX(l) of the Treaty ofAmityhas been
violated are independent and cannot be directly inferredfrom a violation of anynom of
international humanitarianlaw. The United States' contention is no more than an attemptto
escapeits burdenof demonstratinga breach of "fieedom of commerce between the territories
of the twoHighContracting~arties"". The argumentthatotherspecificrules of international
law were indirectlyincorporated into provisions of thT ereatyof Amity was madeby Iran but
rejectedbythe Court inthejurisdictional phase of thepresentcase.The attemptby the United
Statesto achieve similarresultsbyreferenceto ArticleX(l) mustlikewisefail.
6.15 On some occasions,the United States seemsto admit, albeit involuntarily, that this is
its aim, forexamplewhen it declares:"SinceIran's method of warfare was designedto target
neutral shipping, Iran blithely disregarded the legitimate usesof the high seas"". Leaving
aside the question of the tmth of this allegation (which has already been dealt with
comprehensively), it must be stressed that the United States is quite clearly focusingon an
alleged violationof generic rules related to jus in bello, while failing to demonstrate any
17
In this respect,it should be noted thatthe U.S. Rejoinder refersto Judge Koroma'sSeparate Opinion in
the Case Concerningthe Aerial Incidentf 10Azlgust1999(Pakistanv.India)(Jurisdiction21 June
2000 (see, U.S. Rejoinder, para. 4.37). According to that distinguishedMember of the Court, "Thus
formulated,there can be no doubt that the acts complainedof by Pakistan,and their consequences,raise
legal issuesinvolving a conflictof the rightsand obligationsof the Parties,a conflict capableof being
settledby applying internationallaw,whichthe Court,as a courtof law,would have been entitledto do
were it competentto do so (Article 38 of the Statute). However,it is to be observed thatit isone thing
whethera matterbefore the Court isjusticiable and quiteanother whetherthat matter is properlybefore
the Courtfor itto be entitled to exerciseitsjurisdiction.Inthisregard,whetherthe Court should perform
its judicial function in a given dispute or whether it should adjudicate such a dispute on its merits
dependsentirely on the consent of theparties, which theymusthavegiven prior to the institutionof the
proceedingsor in the course of the proceedingsthemselves.In other words, theissue whether thereis a
conflict of legalights and obligations between the partiesto a dispute and the application of
international lawusticiability) is different from whetherthe Court has been vestedeecessary
authorityby theparties to a disputeto apply andinterpretthe lawinrelationto that dispute.The Court is
forbiddenby its Statute and jurisprudence from exercisingitsjurisdiction in a case in which the parties
have not giventheir consent".In thepresent proceedings,theCourt'sjurisdiction is indeed limitedby the
mutual consent of the Parties, which covers only "ffeedomof commerce" under ArtiX(1) of the
18 Treaty ofAmity.
U.S.Rejoinder, para.6.51. breach of Article X(l) of the Treaty of Amity, which is now the only basisof the Court's
j~risdiction'~.
B. Militarv escort cannot be conceivedof as an activitv ancillarv to maritime
commerce
6.16 The United States'assertion that the mine, allegedlylaidby Iran, that hit theSamuel B.
Roberts "impeded anancillary activity supporting the protectedcommerce of U.S. flagged
ves~els"~c~ould not besustainedeven if one wereto admit the broadestmeaningof "ancillary
activity".TheUnited States'claim in this respect seemstogo even furtherthan the exampleit
gives in its Rejoinder, where it argues that Iran'sclaim with respectto the United States'
attacks on oil platforms is "akin to a wheat farmer claiming responsibility for the baking and
saleof a loaf ofbreadw2lB . ut in that casethereis CO-substantialit(yi.e.the wheat producedby
the fmer is presentin the bread), whereas thereis no naturallink at al1betweenthe Samuel
B. Roberts and "freedomof commerce between thetenitories of the two High Contracting
Parties".By analogyto a domestic situation,the UnitedStates' lineof reasoning would imply
that a policemanin charge of ensuring the protectionof customers in a public market is
himself engaged in tradeand is therefore protectedby commercial regulations.This is clearly
unsound.
6.17 In any eventthe SamuelB. Robertswas assisting non-neutral activitiesof third States;
it was duringnothing whateverto protect orenhancetrade betweenthe territories of the High
Contracting Parties. Evenif the argumentwere correctinprinciple, therefore,it would failon
the facts.
6.18 In addition, the Court did not refer simply to "activities ancillary to maritime
commerce"as the UnitedStates s~ggests~~A . ccording tothe Court, only "ancillary activities
integrallyrelatedto ~ommerce"~are coveredby ArticleX(1). Iran dernonstratedin its Reply
19 Havingsuccessfullyopposed any formof interpretationof Ar1of the Treaty of Arnitywhich
incorporated elementsof general internationallawhat provision,the UnitedStates takes precisely
thecontraryposition withrespect to ArticleX.
20 U.S .ejoinder,para. 6.17.
21 Ibid.,para. 3.66.
22 See, ibidtitle ofPartVI, Chapter II, section 1.C,andthediscussionunderthis heading.
23 Judgrnentof 12December 1996,para. 49; emphasisadded.The originalFrench version reads: "activités
accessoires quisontntrinsèquemenliéesau commerce";emphasis added. that productionor transportation activities are intrinsicalllinkedto commerce and the Court
fully acceptedthis ~ontention~~B .ut the United States hasfallenfar short of providingany
convincing argument thatescorting commercial vesselshas any "integral" relation to
commerce.
6.19 It is plain that military vesselscan never be deemed to engage in commerce.The
United States' contention that "attacks on United Stateswarshipsprotecting United States
commercial vesselsmust 'beviewed as endangeringand denyingaccessto those commercial
vesselsas ~ell"'~~should not be accepted.In accordance with the relevant customarr yulesof
international law, theright of convoymeansmerelythat "[neutral]vessels are immunefiom
visitand~earch"~~ T.hisruledoesnot entitle warshipsto beconsideredas commercial vessels;
they remain military objectives and theirownactivityisnot commercialincharacter2'.Evenif
they are escorting neutral commercial vesselst,hey cannot be considered as conducting
commercethemselves.
6.20 As Iran hasalreadystated in its Reply, non-commercial vessels (i.e., vessels of war)
arenot protectedbyArticle X(1), as is expressly providedin Article~(6)~~S . incethe Court's
jurisdiction is limited to alleged breaches of "freedom of commerce as protected by
Article X(1)(withregardto both the claim and the counter-claim),the UniteS dtatescounter-
claim relatedto the Samuel B. Robertsmustbedismissed.
24 See, ibid.,paras.50-51quoted at para. 6.7, above.
25 Orderof 10March 1998,para.26.
26 See, 1909 London Declaration, Arts. 61-62;U.S. Commander'sHandbook of the Law of Naval
Operations(NW),1987,U.S. Departmentof theNavy,Art.76.
27 TheUnited Stateshas not contested this point.Indeed,it Statesthat "[alIlbut one of the vessels [i.e.,the
Samuel B. Roberts] for which the United States seeksdamages in its counter-claim were rnerchant
vessels that cannot be characterized as rnilitary objectives under the law of armed conflict" (U.S.
Rejoinder, para.6.46). Ergo, the United States expressly recognisedthat the SamuelB. Roberts cannot
be consideredas archantvessel, since it isa militaryvesselandthusa militaryobjective. In any case,
it cannot bequalified as a vessel conductingcommerce protectedunder AX(l)lof the Treaty of
28 Amity.
See, Iran'sReply andDefenceto Counter-Claim,para. 1.1 Section 2. The meaning of "between the territories of the two Hi~h Contracting
Parties" inArticle X(1),with regard to theUnited States'counter-claim
6.21 In Chapter 6 of its Reply, Irandiscussed the meaning of the words "between the
territories ofthe twoHigh ContractingParties" in Article X(l) of the Treatyof ~rnit~~'. In
this Section,iran will further consider the interpretation of this phrase, with regard to the
United States' counter-claimI.ran'sposition is entirely consistent,since it argues for exactly
the sarne interpretationas in its previous written pleadings in this case, andfor the same
interpretationinrelation to both itsown claim andtheUnitedStates'counter-claim.
6.22 By contrastthe position of the United States with regardto the interpretationof this
part of the provision is patently contradictory.While putting forward an unacceptably
restrictive interpretationof the expression in its defenceto Iran'sclaims, the United States
adopts quite different reasoning insupport of its counter-claim.It thus asks the Court to
condernnallegedIranianactions againstvessels that werenot engaged incommercebetween
the territories of the two High ContractingParties - actions that, even if they were to be
attributedto Iran(which is not the case),would clearlyfa11 outsidethe scopeof Article X(l)
of theTreaty of Amity.
6.23 The interpretation of the expression "between the territoriesof the two High
Contracting Parties" has particular relevancien thiscase3'.This isso not only with regard to
Iran's own claim, but also with regardto the United States' counter-claim.The words
"between the territoriesof the two High Contracting Parties" impose adefinite territorial
scopeupon the fieedomof commerceguaranteedunderArticleX(1).
6.24 ArticleX(l) guarantees freedomof commercebetweenthe territoriesof Iran and the
United States. Commercial activities carried on by U.S. citizens (orby US.-flagged or U.S.-
chartered vessels, orby vesselscarryingU.S. personnel)betweenthe territoriesof the United
29
30 Ibid., paras.6.44-6.57.
See, Iran'sMernorial,para. 3.62; Iran'sReply and Defenceto Counter-Claim,para. 6.46. States(or Iran)anda thirdState (and, afortiori, betweenthetemtoriesof third States) clearly
do not fa11 withinthe scopeof ArticleX(1).
6.25 The UnitedStatessimplyignores this requirementof ArticleX(1). In the introduction
toPart VIof itsRejoinder,the United Statesannouncesthat:
"Thispartfirstwillreviewthe facts givingriseto the counter-claim and supportingthe
U.S. claim for darnagedone to U.S. flaggedand U.S.ownedvessels,as well as to U.S.
owned cargoand U.S. personnel"3'.
In so doing, the UnitedStates proceeds as if such criteria were sufficientto found a claim
underArticleX(1).
6.26 In its discussionof whatit allegeswere "Iran'sillegalattackson neutral~hippin~"~~ it,
repeatedly refersto suchcriteria,while failingto showthatthevesselsin question were in any
way engagedin commercebetween the territories of the partiesJ3.In sum, the United States
ignores theobvioustemtorial limitationof ArticleX(1).
6.27 The position of the United States on this point is in clear contrast with itsown
response to the originalIranian claim. For instance, in its Counter-Memorial,the United
States argued (incorrectly)that "Iran's Memorial urge[d] the Court to dispense with the
temtorial restrictionsofArticleX(1)"; it thus stressedthat the plainwordingof that provision
was limitedto commerceand navigation "between the territories of the High Contracting
and statedthat the Court "shouldnot rewritecleartreaty~an~ua~e"~S ~i.milarly, in
its Rejoinder (but only with regard to the Iranian claim), the United States repeatedly
31 U.S. Rejoinder,para6.04.
32
Ibid., paras.6.05-6.09.
33 See, for a detailed discussion,Section 3, below. The United Statesgoesso far as to introduce Part VI,
Chapter II in the following terms: "Article X, paragraph 1, ensures 'freedom of commerce and
navigation"' (U.S. ejoinder,para..10), symptomaticallyomitting thewords "betweenthe territories of
the twoHighContracting Parties".
34 U.S. Counter-Memorialand Counter-Clairn, para.2.31 (emphasis in original).The United States had
already pointed outthe territorial scope of this provisionat para."if ArticlX(1) is regarded as
havinp independentlegaleffect, it can apply onlyto commerceand navigation'[bletweenthe territories'
of the Parties.The phrase 'between theterritories'of the Parties(insteadof 'betweenthe Parties')is a
significantlimitation. Itmakes clear that the articleot encompass,for exarnple,goods that transit
through or are rnodifiedin third countries. Instead, ArticleX(1) addressesonly trade moving directly
35 Ibid., para.21.ryofonecountryto the territory ofthe othSee, morebroadly,ibid., paras. 2.17-2.19. emphasises thetemtorial limitationsinherent in ArticleX(1), requiring Iranto demonstrate
the existenceof commercebetween the territoriesof the two In other words, the
contradictions that the UnitedStatesclaims to findinIran's arguments are patent in the United
States'owncontentions beforethe Court.
6.28 TheUnited Statesgoesevenfùrtherin relationto Iran's claim, attempting to restrict the
scopeof Article X(l) to theprotectionof goodsdirectlyexchanged betweenthe temtories of
Iran and the United States.As explained in Iran's Reply,such an interpretation adds a
supplementary condition which is not foundin the actual terms of the provision37.In Iran's
submission,anyclaim underArticleX(l) isjustifiedif theclaimantproves that the commerce
of goods departing fromthe territoryof one of the Parties, even if transitingthroughor being
modified in thirdcountries,and then reachingthe temtory of the otherParty is obstmctedor
prevented withoutjustificationby conductattributable tothe respondent.This is exactlywhat
Iran has shown with regard toits claim. Iran applies thesame interpretationto the United
States' counter-claim.However, itinsists on the necessityfor the United States to prove that
suchcommerce existed andthat it wasunjustifiablyobstructedor preventedby Iran.This the
United States has manifestly failedto do.
6.29 Inthe introduction toPar t I of its Rejoinder,the United States accusesIranof fùrther
inconsistency.Itasserts that:
".. in comection with its claim,Iran argues that itdoes not need toprove that U.S.
actions impededcommerceor navigation takingplace between the Partiesat the time
of the attacks; whereasin its defense to the counter-claimit states that the United
Statesmustprovethat eachship was engagedin commerce or navigation between Iran
and the United Statesat the time ofthe IranianattackU3*.
36 For instance, the United States states: "Article X, paragraph 1, does not provide that there shall be
fieedom of 'commerce'generally but, rather, that there shall be freedom of commerce 'between the
territories ofthe High Contracting Parties'. Consequentlyi,n order to carry its burden of proving a
violation of this provision, Iran must show notat theextraction of oil at the three platforms is
properly characterizedas 'commerce'within the meaningof Article X, paragraph 1, but also that such
commerce was 'between'Iran and the United States"(U.S. Rejoinder, para. 3.53). Later, the United
States attempts to argueagainst one of Iran'sstrong contentionson the basisthat the refined petroleurn
products from Western Europe "did not transitIran's territory on their watyo the United States" (US.
Rejoinder,para. 3.65).See, also, the introduction totheU.S.ibid.para. 3.02.
37 Iran'sReply andDefenceto Counter-Claim, para.6.53.
3s U.S. Rejoinder,para. 6.02 (footnotes omitted). TheU.S. contention that thereis a contradictionin Iran'sposition in thisrespectagainbetrays
a misunderstandingof the reasoningput forwardinthe Reply,whichis relevantequallyto the
United States' counter-claim3'.
6.30 Iran'sfirststep in establishing that theU.S. attacks breached ArticleX(l) was to show
that the platforms were protected under that provisionat the time". For that purpose, Iran
demonstrated thatthe platforms were valuableelementsof an existing complexof Iranianoil
production intended for foreign trade, includingtrade withthe Unitedstates41, i.e.,that they
were permanent and indispensable components ia nsystemof IraniUnitedStates commercial
relations42.This involved evidence, providedby Iran in the Reply, that theoil production of
the platforms did indeedfind its way from the territory of Iran tothe territoryof the United
States, thus constituting trade "betweenthe territoriesof the two High Contracting Parties"
protected underArticle X(l) '). This preliminarydeterminationjustifies the conclusion that
the U.S. attacksagainstthe platforms constitutedabreachofthis provision.
6.31 Clearlythe UnitedStatesmustassumea similarburdenof proof withregardto itsown
counter-claim.This being so,it is insufficientfor the UnitedStates simplyto allege - as it
does in its Rejoinder - that there was generalcommercebetween the Partiesduring the
relevant period.This statement does not demonstrate inany way that the alleged attacks
against specific vessels navigating in the Persian Gulf constituted a breach of freedomof
commerce betweenthe territories of the two High Contracting Partiesas protected under
ArticleX(1).The UnitedStatesmust also provethat thevessels in questionwereinvolvedin
commercial relations betweenthe territories ofIranandtheUnited States.Infact thosevessels
were not conductingtrade between the territorieo sfthetwoParties.
39
Incidentally,it must be emphasised that the above-quotedpassage also demonstrates that the United
States disregards some of the contentionsthat lie at thecore of the Iranian position. In fact, Iran has
neverassertedthat "the United States must provethat eachship was engage...navigation between
Iran and the United States at the time of thenian attack" (emphasis added), since Iran takes the
position that issuesconcerningeedom of navigationfaIloutside the scope of the jurisdiction of the
Court inthe present case(see, Chap.Section2.A,above).
40 Iran's Replyand Defenceto Couriter-Claim,paras.6.58-6.67.
41 Ibid., para.6.64.
42 As the Court explicitly recognised: "Iran'soil production, a vital part of that country's economy,
constitutesan important component of its foreipn trade [commerceextérieurin the French version]"
(Judgmentof 12December 1996,para. 5 1;ernphasisadded).
43 Iran's Replyand Defenceto Counter-Claim,Chap.3, Section2 and theexhibitsreferredto therein. 6.32 The United States builds its whole case withregard to the counter-claim ontwo
discrete statements: (a)that there was substantial commerce betweenIran and the United
Statesduringthe period 1984-1988,and(b) thattheallegedIranianattacks "increased the cost
of doing businessin the [Persian] Gulf forU.S. ~om~anies"~.True, these generic allegations
are made in a rather confusedmannerin theRejoinder,being impliedin variousplaces in the
pleading ratherthan being expressly statedin PartVIas the basis for a claim.Nevertheless, it
is necessaryto address thepotential argumentthat couldbe inferredfromthem.
6.33 First, the contentionthat the alleged attacks "increasedthe cost of doing businessin
the [Persian] Gulf for U.S. companies"is not per se relevant to the present case. As
demonstrated above, the United Statesmust provethat there was a hindrance to freedom of
commerce between theterritories of the two High Contracting Parties, and not simply for
U.S. companiesoperating in the region. On the contrary,as Iran has alreadyshow in its
Reply, the United States' own figures showthat U.S. exports to Iran actually increased
considerablyin 1988 and that most of suchexportswere carried on ships travellingthrough
the Persian ~ulP'. The long discussioncontainedin the U.S. Rejoinder, devoted to the
extraordinarymeasures and supplementary costs incurredby U.S. companies in the Persian
Gulf in general,is futile if it is not accompaniedbya cleardemonstration that ArticleX(l) is
applicable in this respect46.Once again, the generic contention that therewas commerce
between theUnited States and Iran at thetime failsin itself to satisfy this requirement.
6.34 Second,even if the United Stateswere to provethat commercebetween the territories
of Iran and the United States was indeed hindered,in general terms, by the situation of
insecurity inthe Persian Gulf,it wouldbe unfairandcontraryto internationallaw to attribute
responsibility to Iranon these grounds.Iran'sresponsibilityunder Article X(l) could onlybe
engaged if itwere demonstratedthat Iran adoptedconduct toobstruct orprevent freedom of
commercebetween the territories of the two HighContracting Parties. However, as recalled
above,the Persian Gulf wasaffectedby an armedconflictat the time, an armed conflict that
44 U.S.Rejoinder, para. 6.09.
45 Iran's Replyand Defenceto Counter-Claim,para. 11.5and U.S. Counter-Memorial andCounter-Claim,
paras. 6.06-6.07.
46 Iran can only recall once again its earlier assertion that ArticleX(1) is not to be read as a general
guaranteeof freedom of commerce inthe vicinityof Iran,or inthe Persian Gulfregion (Iran's Reply and
Defenceto Counter-Claim,para. 9.6). was not causedor provokedby Iran.No doubt the resulting situationprovokedinsecurityand
may have obliged companiesto take additionai measures to ensure the safety of their
commerce.But it is absurd to atûibute this general situation to Iran, inthe absence ofany
demonstration of a specific link between harm or expense incurred and alleged Iranian
measures targeting trade between Iran andthe United States. Evidently there was nosuchlink
and no such targeting - and certainlythe United Stateshas demonstratednone.Moreover,in
that confiict, Iranas the victim of an act of aggressionon the part ofIraq and the United
States itselfcontributed by its actions to the general situationof insecurityin the Persian
~ulf". In other words,on the hypothesis adoptedby the United States,Iran is to be blarned
for a situation whichthe United States itselfhadhelpedto create and inwhich Iranitselfwas
the main victim.This hypothesis isclearlyuntenable.
6.35 Third, the UnitedStatesattemptstojustiQ its genericclaim on thebasis ofa contorted
reading of the Court's decision in the Nicaragua case48.The United Statesagain takes a
contradictory position. Onthe one hand, it challenges theuse of the Nicaragua precedentin
..
Iran's Replywith regard to the claim while, on the other hand, it relies upon thesame
precedent in support of its own counter-claim.Iran rejects both facets of this reasoningI .n
fact, Nicaragua's claimat the time was analogous toIran'sclaim in thepresentinstance,and
was substantially differentfromtheUnitedStates'counter-claim.
6.36 As recalled in Iran's Reply,in the situation dealt with in theNicaragua case, the
United States' activities had directldamaged Nicaragua's infrastructure (ports,il terminals,
etc.), which infrastructure was directly engaged in the external commerce of Nicaragua,
especially with the United States (whichhad been one of its traditional and important
commercial partners) 49.Inthosecircurnstancesthere couldbe no doubt that the United States'
conduct involved a violationof freedom of commerce between the temtories of the two High
Contracting Partiesas protected by the bilateral Treaty of 1956, regardless of whether the
facilities attacked were actuallybeingutilised for thepurposesof commerce withthe United
States at the particulartime of the attacks. Similarly,in the present case, the United States
48 U.S,C.ejoinder, paras. 6.21-6.23.
49 Iran's Replyand Defenceto Counter-Claim, paras.6.49-6.53. attackediranian oil platforms which,as Iran has shown, were essentiai parts in a system of
commerce between thetemtories of Iranand the United statess0.In other words,on the basis
ofthe Nicaraguaprecedent, itis unnecessaryto prove that specificcommercialactivities were
being conductedat the precise time of the attacks,ecauseIranhas alreadyshownthat those
attacks were directedagainst iranian infrastructure which was integrally involved in the
conductof commerce betweenthetemtones of the two Parties.
6.37 Onthe other hand,the United States has failed toshowany equivalent relationship to
commerce betweenthe territoriesof the two Parties with regato its counter-claim.Sincethe
United States does not base its case on this ground, the only way its counter-claim could
succeed wouldbe for it to demonstrate that specificIranianactions obstructedor prevented a
commercial activityconductedby specific vesselsin the Persian Gulf between thetemtories
of the two High Contracting PartiesA . s will be shown below, the United Statesfails to meet
this test with regard to tvesselsallegedlyattackedbyIran.
Section3. There is no basis for the United States' counter-claimsunder Article X(1)
of the Treatv of Amitv
A. The specific counter-claims: thevessels allegedlv attacked bv Iran were
not protected under Article X(1) of the Treatvof Amitv
6.38 In Chapter IV, Iranhas reviewed the facts with regardto each of the incidents
specifically referred toby the United States in its Rejoinder. As habseen shown there, the
United States has failed to demonstrate thatte allegedattacks are tobe attributedto Iran.On
this basis alone,the United States' counter-claim shoulbde rejectedon its merits. In Chapter
V, Iranhas furtherdemonstratedthat, in any event,the counter-claims concerning these sarne
specific incidentsfa11outside the scope of the Court's jurisdiction in the present instance
andor are inadmissible. As a consequence t,he counter-claim should alsbe setasideon these
grounds.
50 In Iran'sopinion, and in response to argumentsinthe U.S. Rejoinder (paras.3.40 and 6.22), the fact that
the existence of a system ofUnited States commercial relations has been substantialin proven
these proceedings must allow the Courtto followthe same reasoning as it folNicaragzlahe
case, in spite of the United States'contentionthat suchtrade was nottakingplace. 6.39 In the light of the preceding discussion,Iran will briefly retum to these specific
incidentsto show that the United States' counter-claimms ust also be dismissedby virtue of
the terms of ArticleX(l) of the Treaty ofityasinterpretedbythe Court.
6.40 It has beenshownin Chapter IV that noneof the commercialvessels referredto bythe
United States (with the exception of the Texaco Caribbean) was engaged in commerce
between the territoriesof Iran and the United States. Moreover,the United States has
expressly acknowledged thatthe reflagged Kuwaiti tankers, including the Bridgeton and the
Sea IsleCiv, were not scheduled toand in fact did notcal1at Iranianports, on the particular
voyageconcemed5'.Indeedthere is no evidencebeforethe Courtthat thesevessels were ever,
at anystage, engagedin commercebetweenthe UnitedStatesand Iranor that they ever called
at anIranianport. Iranianoil was not at the time andhas atno relevant time been transhipped
throughKuwait.
6.41 Reference hasbeenmade in Chapter V aboveto ajudgment of the United States Court
of Appeals dated29April 19915*.That judgment dealt with the question of whetheU r .S.
domesticlabourlaw("FLSA") appliedto the seamenonboardthe eleven reflagged tankers.In
deciding that it did not, the Court of Appeals held that "FLSA defines 'in commerce'to
includeonly those economicactivitieswhich'touch' theUnitedStatesat some point" and that
the searnenon board the reflagged vessels failedto satis@this "in commerce"requirement5).
It further held that "The technical formalityof transferring the vessels to an American
corporation for politicalpurposes in no way altered the entirely foreign characterof the
shipping operations or theduties of theeamen"'',and that"Congressexacted a promise from
Kuwait that the vessels would remain in'foreign trade"~~~T.he Court further held that
Chesapeake Shipping Company, Inc., the U.S. corporation created specificallyfor thepurpose
of taking title to the reflagged tankers, was similarly not engagein commerce withinthe
meaning of theFLSA'~.Itwas certainlynot engagedincommercewith Iran!
51 U.S.Rejoinder,para. 6.29.
52 Exhibit7.
53 Ibid .p. 2028 and 2029, fn. 10.
54 Ibid ..2031.
55 Ibid .,2032.
56 Ibid .p. 2034eseq. 6.42 As a consequenceof the vessels' non-involvement in commerce d,irect or indirect,
between thetemtories of Iran and the United States,thesevessels were not protectedunder
ArticleX(1)of the Treatyof Arnity,no matterwhat thecolourof their flagor the nationality
of their owner or ofthe ownerof their cargo.The counter-claimwith regardto the Bridgeton,
the Sea Isle City,the Lucy,the Esso Freeport and the Dianemust berejectedon this basisj7.
A fewfurtherwords shouldbe said,however, aboutthe U.S.S.Samuel B. Roberts.
6.43 TheSamuel B. Roberts, whichwas struckbya mineallegedlylaid by Iran on 14April
1988,is a U.S. militaryvessel. For the reasons explainedabove, when escortingmerchant
vessels in the Persian Gulf, it was not conducting an ancillary activity integrally related to
commerceand therefore it was not protectedunder the "fieedomof commerce"provision of
Article X(1). Consequently,the United States' counter-claim with regard tto he Samuel B.
Robertsmustberejected.
6.44 Even if it were possible in principle to considerthat the Samuel B. Roberts when
convoying commercialvessels was conducting an ancillary activity integrally related to
commerce, the simple pointis that at the relevant timeit was returning to Bahrain after
escorting aconvoyof U.S.-flaggedmerchantvesselswhichdidnotcall, andwhichwerenever
scheduledto call, at any Iranian port58.Whatever viewwere to be taken of the "ancillary"
activities of warshipsuch as the Samuel B. Roberts, in the present case thtesselwould not
be protected,in anyevent,by Article X(1) regarding freedom of commerce (or even freedom
of navigation)betweenthe territories of thetwoHighContractingParties. The United States'
counter-claim with regard tothe SamuelB. Roberts must thereforebe rejected also on this
ground.
57
The samewouldapplyto the other commercialvesselsreferredto by the UnitedStates (the Sungari,the
EssoDemetia,the StenaExplorer,the StenaConcordiaand theGrand Wisdom)if the Court, contrary to
58 Iran'ssubrnissions,were to declare a counter-claim admissible with regard ttohese new vessels.
U.S.Rejoinder, paras.6.06 and 6.29.See, also, para. 6.40,above. B. The peneric counter-claim: the alleged creation by Iran of conditions that
were dangerous and detrimental to U.S. maritime commerce and
navi~ation
6.45 The United States' generic counter-claim isbased on an assertion that Iran created
conditions of navigation in the Persian Gulf that obliged shipping companies to take
extraordinaryand expensive measures to ensure the safety of their vessels and crews and led
to a dramatic increasein the cost of war risk insurancecontractsS9.The United States appears
to contendthat Iran thereby violated its conventionalobligationsunderArticleX(1).
6.46 At the outset, it should be noted that the United States' evidentinability toprove any
violation of the freedom of commerce between the temtories of the two High Contracting
Parties casts serious doubt upon the relevance of theUnited States' genericcounter-claim60.If
the specific incidents dealt withabove, which were singled out by the United States for the
purposes of demonstrating an alleged Iranian pattern in obstructing fieedom of commerce
between the territories of the United Statesand Iran,do not involveprotected commerce (and
it is clear that they do not), how is it possible, for theposes of the counter-claim,to rely
upon activitiesof other (unidentified) vesselswhose voyageswere allegedly interferedwith or
otherwise wrongfully impaired by Iran? If the United States, given ample opportunity,
completely fails to specifi any particular protected case, howcan its generic claim succeed?In
the light of the incidents referred to in the Rejoinder,the United States' generic counter-claim
is no morethan an empty shell,unrelatedto ArticleX(l), and it should equallybe dismissed.
6.47 In any event, there is no doubt that armed conflict in anypart of the world increases
insecurity, and commerce in a region may be made moredifficult or expensiveby reason of
the presence of such conflict. Third States cannot expect the same level of freedom and
security in the affectedregion in time of war as in time of peace6'.Third Statesmay have to
take protective measures that would be unnecessary in times of normal peaceful relations.
These indirect consequences of the state of war cannot be regarded as a hindrance to
commerce attributable to one of the belligerent parties and therefore as a breach of its
59 U.S . ejoinder,para. 6.09.See, also,ibid.,paras.6.12,6.14 and 6.16.
60 See, paras.6.38-6.44,above.
61 See, Iran's Reply andDefenceto Counter-Claim,para. 11.2. obligation toensurefieedomof commerceunder specific treaties - and still less to theparty
whichis actingin self-defencein the conflict.Sincethe dangerous and detrimentac londitions
invoked by the United States werean inherent result of the use of force between the
conflicting parties in theegion,uncausedand unprovokedby Iran, itis unacceptablefor Iran
to be deemed responsible for any impairmeno tf commerce resulting from conditionsnot of its
ownmaking.
6.48 Even if the United States' reasoning were correc att some level of principle, an
assessrnentof the circumstances which gave rise to the conflictwould benecessary inorderto
determine responsibility between the belligerent parties.In this respect,it must berecalled
again that the 1980-1988war was launched by Iraq, which attacked Iran without any
justification whatsoever. Even when cease-fireswereagreed,Iraqremained in occupationof
substantial parts ofranianterritory.Therewere flagrant violationsof neutrality on the partof
other States in theregion;throughout the conflict,Iran did nothing butexercise its inherent
rightof self-defenceenshrinedin Article51of the Charter of the United NationsI.ranwas and
remained the victimof a blatantact of aggression.Iran was thusforced into an urgent conflict
situation threatening itstemtorial integrity, against its willand against the fundamental
principles of international law. Itcannot be consideredas in any way responsible for the
negative and indirect impact causedbythat situation to foreign States orivatecompanies.
6.49 Indeed, if responsibilityfor theconflictisto bedistributed, the UnitedStatessharesits
part of responsibility for thedangerousand detrimental conditions thae txisted for maritime
navigation inthe Persian Gulfat the time. TheUnited States' illegal and disproportionate use
of force (including againstthe oil platforms) and the publicity given toits military actions
certainly contributedto an important extent to the feelingof insecurity that prevailed inthe
region.
6.50 The United States' counter-claim is based on the contention that the legitimate military
activities conductedby Iran in reaction to Iraq's aggression had, globally, indirect impact
on the freedomof commercein the Persian Gulf. By contrast,Iran'sclaims are founded on
specific rnilitary activitiesertakenby the UnitedStates againstparticularIranian facilities Section 1. Thelawof naval warfare
7.3 The events whichare the subject of the counter-claimhaveto be analysed in the light
of the followingareasofthe law of naval warfare:
- the law relating to the distinction betweenthe enemy or neutral characterof
vessels;
- the law relating to the distinction between civilian objects and military
objectives;
- the lawrelatingto the layingof mines.
7.4 It is helpfulto consider in this contexttheworkofa groupof internationallawyersand
naval expertswithinthe frarneworkof the InternationalInstitute ofHumanitarian Law inSan
Remo, the San RemoManual'. Although the work was a privateendeavour notcanied out
under any govemmentalauspices, both the expertise andthe diversityof origin of those who
participatedin itgive it a certain authority. Thisoesnot dispensewith the need to question
whether a specific rule formulated in the Manual really constitutes existing international
customary law,but itprovides a useful startingpoint.
7.5 A fùrtherstarting pointis that Iran was atal1relevanttimesa belligerent in a longand
bitter war with Iraq in which its territorial integritywas at stake and for which it was not
responsible. Thisdoes not, in principle, render lawful for Iran any conduct in self-defence
which is unlawfil underthejus in bello2, butit isrelevantinthe assessment of the situation
and in particular in relation to issues of necessity and proportionality arising under
international humanitarianlaw.
1
ArmedConflictutSea, 994.of Humanitarian Law, San RemoManualon InternatLawaApplicable to
2 See, Legafi~,of the Use by a State of Nuclear Weaponsin ArmedConflict,Advisory Opinion, I.C.J.
Reports1996,p.66. A. The enemv or neutral characterof vessels
7.6 The legalyardstick forevaluating the legality or otherwise of attacksagainst vessels
duringthe courseof an armed conflict dependson the qualification of the vesselin question
as "neutral"or "enemy". Itwill be shown in this sub-section that certain vessels which were
attacked,allegedlyby Iran, were indeed to be characterisedas enemy vesselsfiom an Iranian
pointof view.
7.7 In orderto arrive atthis conclusion,threequestionshave tobe answered:
- Arethere any States which,in additionto Iranand Iraq, areto beconsideredas
parties to theconflict?
-
To the extent that this is the case, what typeof link between avesse1and the
State inquestion is necessary inorderto establish that the vessel belongedto a
Statewhichwas a party to the conflict?
- Underwhat circumstancesdoesa vessel, although belonging toa neutral State,
loseits neutral status sothat it may beassimilatedto an enemyvessel?
1. Parties to the conflict andneutralStates duringthe Iran-IraqWar
7.8 As shown inChapter III above,there is ample evidence that bothSaudiArabia and (in
particular) Kuwait gavesubstantialassistance to Iraqinvariousways.Inparticular, they made
their land, watersand airspace available to Iraq for its rnilitary activitiesagainst Iran3.This
supportwas so regularand massive that it wasno longer possible toconsiderthesetwo States
as neutral, even technically.They were so deeply involved in the conflicton the side of Iraq
that they mustbe treated as Iraq's allies in the sense that they had become parties tothat
conflict. As also shown in Chapter III above, United States officiais considered Kuwait, in
particular, to be a de facto ally of 1raq4.In this regard it should be stressed that the
characterisationof a State's behaviourin an existing international armedconflict is not to be
determined solely oreven principally by that State's professionsat the time, or by mere
3 See,paras3.23-3.24above.
4 See,para.3.23,above. declarations of intent.The question is one of substanceand has to be looked at in the light of
the facts. A State cannot, while professing neutrality, act in a non-neutral way and then rely
on its professionsto avoid the consequences of its action;beyonda certain point,the reality of
itsconductis what matters.
7.9 The United States, too, assisted Iraq in various ways. It pursued a political goai which
was prernisedon the consideration that an Iranian victory in the war would be detrimentai to
United States interests.It took a political attitudewhich was characterisedas a "tilt" in favour
of Iraq, and which became more and more pronounced. This tilt manifested itself in anumber
of ways, inte rlia:
- byfacilitating the acquisition ofwar materialsby Iraq;
- by giving Iraq access to U.S. intelligencedatarelevant for Iraq's military effort;
-
by providing guidance forIraqi attacksagainst Iran;
- by reflagging Kuwaiti shipsin an attemptto makethem appear neutral, inorder
to shield their efforts to foster the Iraqiwar effort.
Again, these points have been fully addressed in Chapter III, above. It should be stressed that
the United States took these actions in relation to a conflict in which, transparently, Iraq was
the aggressor, in which Iraq was seeking to overturn duly concluded treaties, and in which at
al1relevant timesit was illegally occupyingIranianterritory.
7.10 These are clear violations of the duties of abstentionand impartiality which a neutral
State has to respect5. Nevertheless, neither the United States nor Iran has drawn the
conclusion thatthe United States had become so deeplyinvolvedin the conflict that it had to
be considered as a party thereto. As to the United States, the following statement may be
quoted among others:
"Wedo not wish to see an Iranianvictory inthat terribleconflict.
Nevertheless,the United States remains formallyneutralin the warM6.
5
6 Staternent by Under Secretary for Political Affairs, MichaelH. Arrnacost, before the Senate Foreign
Relations Cornmittee,16June 1987,reprintedin26 I.L.M.,1429,at 1430. v T'us, ships belongingto the United States must,as a matter of principle, be consideredas
neutral. Itoes not follow, however, that individual vessels were not actin igbreach of the
obligation of neutrality, andthe legal consequences of such unneutral service must be
analysed fùrther.
2. The nationalitv of vessels
7.11 In the lightof the differentstatusthatvariousStatesmayhave inrelationto an armed
conflict,the actual nationalityof the vessels concernedhas to be ascertained.As a matter of
principle, the flag of a vessel is the prime indicatorof nationality7. But it is not the
determinative factor, particularly inthe context of thelaw of neutrality andthe jus in bello.
TheSanRemoManualexpressesthe samerule:
"The fact that amerchantvessel is flying the flagof a neutralState ...isprima facie
evidenceof itsneutralcharacterW8.
The use of the term "primafacie" clearly indicates that this presumption is rebuttable in
particular cases.
7.12 Two questionshaveto be distinguished in this respect, namely:
(a) whether a neutral State has indeed granted t, a particularship, the right to fly
its flag, and
(b) whetherthis granteffectivelyfoundsthe neutral characterof the ship.
According to the UnitedStates HandbookontheLawofNaval Operations:
"... the fact that amerchant ship flies a neutralflag ...does not necessarilyestablish
neutralcharacter.Any vessel ...ownedor controlledby a belligerent osBessesenemy
character, regardlessof whetherit is operatingundera neutralflag.. ." .
7 Caron,D.D.,"FlagsofVessels",in:Bernhardt, .,(ed.),EPIL,Vol. II,1995405.
9 San RemoManual, para.113.
Exhibit10,para.7.5. The footnoteto this provisionexplains:
"A neutral nation may gant a merchant vessel ...the right to operate under its flag,
even though the vessel ... remains substantially owned or controlled by enemy
interests. According to the international law of prize, such a vessel ...nevertheless
possesses enemy character and may be treated as enemy by the concerned
belligerent"lO.
This does not exclude the possibility that a bonafide transfer of ownershipof a vessel fiom a
person or enterprise belonging to a belligerent Stateto one belongingto a neutral State may
occur, entailing the consequence that the vessel effectively acquires neutralstatus. On this
question, the United StatesHandbookcontinues:
"Despite agreement that such transfers will not be recognizedwhen fraudulently made
for the purpose of evading belligerent capture, nationsdiffer in the specific conditions
that they require to be met before such transfers can be considered as bona jde.
However, it is generally recognized that,at the very least, al1suchtransfers must result
in the complete divestiture ofenemy ownershipand control"ll.
7.13 Thus, the true nationality of the vessels which are the subject of the United States'
counter-claim remains to be established for the purposes of detennining their enemy or
neutral status. Two of these vessels, the Sea Isle Ci@ and the Bridgeton, were reflagged
Kuwaiti tankers. Theymet none of the above conditions for a bonajde transferto the United
States.
7.14 Whether or not, on a technical level, the tankersmet the conditionof U.S. ownership
which U.S. law requires for the grant of the right to fly the U.S. flag, the real economic
interest in those tankers was never transferred intoU.S. hands. Thisrathertransparent fact has
been recognised by the United States courts themselves, as has been show in Chapter V,
aboveL2.
10 Ibid.m. i 10.
1I Ibid.
12 See,paras5.46,etseq., above. 7.15 Furthemore, it was openly declared that the onlypurposeof the reflagging operation
was to protectsuch non-neutral vessels against Iranianattacks13.According tothe rulesjust
described,such a purpose is contrary to the principles applyingto a bonafide transfer. In a
Report to the United States Congress dated 15 June 1987, thethen Secretary of Defense
Weinberger explained thisoperation as follows:
"As a result of the Iranian policy to target shipping seming Kuwaiti ports, the
Governmentof Kuwait began effortsto protect its interests ...In January [1987],the
Governmentof Kuwait formallyqueriedour Embassy aboutthe use of U.S. flags and
whether reflaggedKuwait vessels would receiveU.S. Navy protection equal to that
provided 'other U.S.-flag vessels. At this time, we were also informed of Soviet
agreement to provide protection to Kuwaiti tankersunder the Soviet flag ...Kuwait
was assured that, if its vessels met standardU.S. requirements, it could apply for
reflagging and we would considerwhat protection couldbe afforded"I4.
This statement clearlyshows that the whole reflagging operation did not correspond to any
bonafzde transfer of ownership, but was only a means of giving the vessels in question a
neutral appearance. Achange offlag operatedin such circumstancescannot be opposedto a
belligerent15.Iran was entitled to treat these vessels as Kuwaiti and hence, as already
explained,as enemyvessels.
B. Merchant vessels as rnilitarytargets
7.16 In relation to thelawfulnessof attacks against certain targets, a twofold distinction has
to be made, namely between neutral and enemy objectsand between civilian objects and
rnilitaryobjectives.As a matter of principle, thisrule applies also tothe lawof naval warfare.
Butas a practicalmatter,the two distinctionsareto a certainextentmergedas far asmerchant
vessels are concerned.Normally, neither neutralmerchantvessels nor enemy civilian vessels
may be attacked. But theconditions under which a vesse1loses its protection either as a
neutral objector as a civilian object arevery similar.These twoquestionscan thus be treated
together.
13 McNeill, J.H., "Neutra1Rights and Maritime Sanctions:The Effects of Two Gulf Wa31"Virginia
Journal of InternationalL631(199 l), a635.
14 26 I.L.M. 1433at1451.
15 See, para5.45-5.54,above. 7.17 Theconditions forloss of protectionas a neutralmerchantvesse1are formulated in the
SanRemoManualas follows:
"Merchantvessels flyingthe flagof a neutralStatemay notbe attacked unless they:
(a) are believed on reasonable grounds tobe carrying contrabandor breaching a
blockade, andafter prior warningthey intentionally and clearly refuse to stop,
or intentionally and clearly resist visit, shr capture;
(f) otherwise makean effective contribution to the enemy's military action e.g.,
by carrying military materials,and it is not feasiblefor the attacking forcesto
first place passengers and crew in a placeof safety. Unless circumstancesdo
not permit, theyare to be iven awarning,so that they can re-route,off-load,
%
or take otherprecautions"' .
7.18 Thecorresponding provisions for enemy merchantvessels readas follows:
"Enemy merchant vessels may only be attacked if they meet the definition of a
militaryobjective...
The followingactivities may render enemy merchantvessels military objectives:
(e) refusing anorderto stop or actively resistingvisit, search or capture;
(g) otherwise making an effective contribution to military actione ,.g., carrying
military materials"17.
7.19 The essential questionwhich remains to be answered, and which is relevant in the
present context,is whatconstitutesan "effectivecontributionto military action".
7.20 The explanations givenby the United StatesHandbookseek to add some precisionto
the contentof theserules.The corresponding provision on the definition of military objectives
in navalwarfareuses thefollowingphrase:
16 San RemoManual,para.67.
17 Ibid.,paras.59 a60. "18
"ifintegrated intothe enemy'swar-fightinglwar-se ufftrt..nin.
A footnote to this provision adds:
"Although the term 'war-sustaining'is not subject to precise definition, 'effort' that
indirectly buteffectivelysupports and sustainsthe belligerent's war-fighting capability
properly fallswithinthe scopeofthe te~m"'~.
7.21 It must be concluded that, from thisU.S. perspective,oil exports which provide the
necessaryrevenuesfor financing a war effort do indeed"effectivelysupport and sustain the
belligerent's war-fightingcapability",provided at leastthat the levelof support exceedssome
threshold of sufficiency or materiality. That this is the basic attitudeof the United States
becomes even clearer whenone analyses thecomrnentson neutral trade containedin the same
Handbook, to whichthe footnote just mentioned also refers.The definition of "neutral
commerce" includes:
"...ail commercebetween a neutral nationand a belligerent thatdoes not involvethe
carriageof contrabandor otherwisesustainthe belligerent's war-fighting ~a~abilit~"~~.
With regard to what can be considered as commerce that sustains the belligerent'swar-
fighting capability, afootnote explains:
"Examples include ... exports of products the proceedsof which are used by the
belligerentto purchasearms andarmamentsW2'.
7.22 The Handbookgoeson to definesuchexportsas "economic targets":
"that indirectly but effectively support and sustain the enemy's war-fighting
capability... .2
The footnoteto this provision expressly statesthat the United Statesconsiders this rule to be
part of customary law and quotes with approval an arbitral awardwhich considered the
destructionof the cotton fields on Confederate territory by the armedforces of the Unionto
18 Exhibit 10,para.8.2.2.
19 Ibidh. 52.
20 Ibid., para.7.4.
21 Ibid.fh .0.
22 Ibid.,para.8.1.1. be lawful because the Confederacy financed its war effort by the saIe of cott~n~~I .n the
presentcasetherecan be no doubt thatIraq'swareffortwasentirely dependentuponproceeds
fiom Kuwaiti and Saudi commerce, and that any thresholdof sufficiency ormaterialityis
morethanmet.
7.23 Inthe context of this conflict,theUnited States clearly took the view thaItraq'sattacks
on vessels engagedin trade with Iran were lawful.As noted in Chapter III,above,President
Reagan stated in1984that "theenemy's commerce and trade is a fair targetW".CertainU.S.
authorsholdingofficialpositionshavecometo the conclusion that this wouldapplyto attacks
on the commerceof both belligerents. Cornmentingon the provisions of theHandbookjust
rnentioned, oneauthor~tates~~:
"Underthis rationale,the oil transportation systemof bothbelligerentsin theIran-Iraq
warwere legitimate military objectives".
The same author sets out the practical consequencesto be drawn from this rationale, albeit
onlyfor Iraqi attacks:
"The tankersdocking at Khargcould reasonably have been assumedto be taking on
Iranianoil for export, and suchships and their war-sustainingcargoeswerelegitimate
objects of attack. ...[Tlhe shipscanying Iraniancrude oil ... were legitimate objects
of attack by Iraqi forces, particularlysincethey were located either withinIranianor
international waters.
1s there a different appraisal of Iraqi attackson Iranian flag tankers than of Iraqi
attacks ontankers flying national flagsof other countriesmovingIranianoil? Perhaps
that questioncan be answeredbyinquiring whether Iran could reasonably be expected
to put her oilexport capability,uponwhich she depended to continue thewar against
Iraq, beyondthe lawful reach of Iraqiinterdiction,by the simpleex edient of using
P
neutral flagshipping?1submitthatthe answer to both questionsis no" 6.
23
24 Ibid.fn.11.
25 See,para. 3.35, above.
Roach, J.A., "Missiles on Target: Targeting and DefenseZones inthe Tank3r1VirginiaJournal
26 ofInternationaLaw 593 (1991), at 597.Theauthor is a leadinglawyerof the U.S. Navy.
Ibid.p.607. If these conclusions applyto Iraq as the aggressor in the conflict,afortio thiy must apply
also to Iran. The basic principle in the field of the law of war (jus inbello) is that of
reciprocity.
7.24 It wouldbe a logicalconsequenceto apply the sarnestandardto tankers integrated into
the war effort of Iraq,because they carried oil the proceeds of which were usedto finance
Iraq's war effort,either directly or indirectly through the financing by Kuwait and Saudi
Arabia of Iraq's arms purchases. In accordance with the rationale adoptedby the United
States, Kuwaiti exports could not be brought "beyond the lawful reach of [Iranian]
interdictionby the simple expedientof using neutral flag shipping".Onthe basisof the United
States' stanceconceminglawful targetsin naval warfare, the alleged Iranianattacks on vessels
canying oil fromKuwaiti and Saudi Arabian ports would be lawfùl.
7.25 TheUnitedStates' view in this regard is not uncontrover~ial~~ It. may beconsidered as
giving belligerents excessive licence toharass neutral trade. But for the purposes of the
present proceedings, vis-à-vis the UnitedStates, Iran can claim the benefit of those very
standards the United States would claimfor itself in a similar situation and that itclaimed,
with respectto the Iran-Iraq war, for Iraq.
C. Mines
7.26 Undoubtedly, the layingof mines at sea asa means of warfare is not illegal perse.
Thus, the question which hasto be answered for each of the incidents wheredarnage was
caused by mines is whether this particular damage derives from a violationof the particular
ruleswhichgovemthe use of mines innaval warfare.
7.27 Iran admittedly usedsea minesduring the conflict for two lawful purposes, namely for
protecting itscoastlines against enemyattacks and as a means of barring Iraq'saccess to the
waters of the Persian Gulf, i.e. a,sa means of enforcing a legitimate blockade.For both
purposes, mines were laid at the Northem end of the Persian Gulf.
27
For a critique,see, Politakis, G.P., Modern Aspects of the Lmvs of Naval Warfare and Maritime
Neutrali~,1998,p. 633; Fenrick, F.J., "The MerchantVesse1as LegitimateTarget in the Law of Naval
Warfare", in:Delissen, A.J.M. and Tanja, G.J. (eds.), Hicmanitarian Lmv of Armed Conj-ict
Challenges.4head.Essays in Honourof Frits Kalsho1991,p.435,at 442. 7.28 Inrelationto allegationsof other Iranianmine laying,it mustbeemphasisedagainthat
Iran was the major victimof activities which blocked sea lanes in the Persian Gulf. It
depended onthose lanesfor the export of its own oil whichwasnecessaryto finance its war
effort. It wouldhavebeen illogical for Iran to obstructthose sea lanesby mines, and for that
very reason Iranundertookmine-sweeping operations.
7.29 In this context it should beborne in mind that the United States acknowledges that
Iraq laid minesin and around Iranian ports and export facilities and thatsuch mines hit
vessels trading with Iran.It appearsthat the United Statesregardedsuchmining as lawfül. In
the light of this, evenhad Iran laid mines which were intended toaffect commerce with
Kuwait and SaudiArabia, the United States could not, consistentlywith the rules it itself
professesto apply inthesematters, treatsuchmining asunlawful.
7.30 Another issue on whichthe United States relies in its Rejoinder is the duty of
notificationas a requirement forlawful mine laying2'.Once more,it is impossiblefor Iran to
explainthe non-notificationof mines itdid notlay.It cm, thus,ody point tothe fact that this
duty is not absolute. The dutywas first formulated in Article 3 of HagueConvention VI11
whereit is subject to the proviso"as soon as military exigenciespermit"T . he same is true for
the relevant provisionof theUnited States and book t i.quiteobvious thatmines laid in
order to damage enemy warshipscould not be made the subject of a general notice to the
shippingcornmunity.The pronouncements of the Cour thichmightbeunderstood to impose
a stricter obligationto notify(the Corfi channePo and~icara~ud' cases) relateto peacetime
mining where, obviously, the military exigenciew s hich exist in wartimeare not relevant3'.
The fact that theSan RemoManual does not mentionthesaidprovisoprobablyreflects a wish
of its authors to extend the scope of protection de lege~renda~~.In the present case, there
wasan armedconflictandthe provisothus applies.
28 U.S.Rejoinder,para. 6.49.
29
30 Exhibit 10,para. 9.2.3.
31 i..J. Report1949,p. 22.
32 I.C.JReports1956,pp.46, et seq., 112an147, eseq.
33 See,Exhibit 10,para. 9.fi.19.
The explanation givenin the commentary is not very precise. It does not express aconviction that the
omissionof the provisotakes intoaccount a developmentofomarylaw whichhad already occurred
(para. 83.3of the Commentary). 7.31 In conclusion, the United States has failed to show, in relation to thespecific events
which are the subject of its counter-claima ,ny unlahl conduct involving the responsibility
of Iran.
Section2. Consequencesof the breachof the lawof neutralitvbv the United States
7.32 This Sectionwill show that the material breachesof the law of neutrality cornrnitted
by the United Statesexcludethe possibility for the United Statesto claim compensation for
anydamagesustainedasa consequenceof the conflict.
7.33 The fundamental obligation of neutral States is that of abstention and non-
participation. In thewordsof a well-knownspecialistinthis area ofthe lawof war:
"The supreme precept is thatthe neutral State maynot, by govermnental measures,
intervene inthe conflict to the advantage ofone of the belligerents.Measures that
would assist a belligerent and thosethat would harm itarealikef~rbidden"~~.
Assistance to one of the belligerents can take many forms. Oneof them is placing at the
disposa1of the belligerentmeansof communication which are relevantto belligerentactivities
and to whichit does not othenvise have access3'.Giving information whichis specifically
relevant to the conflictandnot othenvise availableto a belligerent is aclearexampleof a non-
neutral activity. As far as theprovision of war materials is concerned,State practice has
modified the former treaty rule that a neutral Statewas not bound to prohibit export and
transit of war materialsby private persons36.If and to the extent that a State can control the
deliveryof war materialsto aparty to a conflict, the duty of abstention requires a neutraS ltate
to preventsuchdelivery3'.
7.34 This obligationwasviolatedby the United States invariousways.
34 Bindschedler,R.L.,"Neutrality, Conceptand GeneralRules", Bernhardt,R., EPIL, Vol. III, 1997,549,
at 551.
35 Joint Service Regulation 1512for the Armed Forces of the Federal Republicof Germany, para. 1116
(English translation in Fleck, D., (ed.), TheHandbookof HtlmaniLawiain Armed Conflict, 1995,
p. 500).
36 Ibid.,para. 1112.
37 For a thorough analysis of State practice, see, Oeter, S., Neutralitat und Wafîenhandel, 1992,
conclusion,pp. 225tseq. 7.35 Intelligence sharingwas a major form of U.S. assistance to Iraq from as early as
1982)~T . he CIA gave satellitepictures to Iraq showingthe weakpoints of Iraqi defencelines
and enabling Iraq to betterprepare for Iranian counter-attacks.Americanaerial and satellite
reconnaissanceon possible Iranian targets for Iraqi bombingraids was also given toIraq.
Thesewere not single incidents. Intelligence sharinw g as systematic from the early phasesof
the conflictntil itsend39.
7.36 As to the provision of war materials, theUnited States systematicaIlyallowed the
exportof sensitivetechnologyand "dual use" equipment to Iraq,knowingthat this was to be
used (and it was in fact used)in the ongoing armed conflict40.The United States also
systematically encouragedother States to provide weapons to Iraq. At the same time, the
United States put into place"Operation Staunch" which was designed to prevent Iran
receiving warmaterials fromanywherein theworld.
7.37 These are only the most obvious manifestationsof the United States' policyof tilt
towards Iraq.Theywere clearlyin violation of the lawofneutrality.
Under the traditional law of neutrality, these violations would have entitledthe
7.38
aggrieved State to resort to reprisals againstthe State violatingits obligations, including
armed reprisals. However,as pointed out in Iran's Reply, the Charter of the United Nations
forbids armed reprisais4'. Irandoes not claim a rightof armed reprisals,but it is entitledto the
benefitof al1the legal consequences that flowfromthe non-neutral andunlafil activityof
States that assisted Iraq inthe conflict.
7.39 In this regard, al1the consequencesof the law of State responsibilityapply to the
United States' violationsof the law of neutrality. This includesthe duty to pay compensation
for damages sustained as a consequence of these violations, which are enormous. For
example, as pointed out above, the United Statesprovided targeting informationto Iraq in
violation of thelaw of neutrality. The vast darnagescaused by those attacks are the direct
38
39 See,Iran's Replyand Defenceto Counter-Claim,Freedman Report,para.25(F).
40 See,para. 3.32,above.
41 See,Iran'sReply andDefenceto Counter-Clairn, Freedman Report,para.25(D).
Iran's Replyand Defenceto Counter-Claim, paras.etseq. consequenceof illegal actscornmittedby the United States.These damagesdwarf the total
damagewhichmight have been causedby anyallegedIranianattacks against U.S. vessels.
7.40 In such circumstances,any claim for compensation fordamages which the United
States might have sustainedas a result of incidentswhere Iran is allegedto have violated
applicable restraintson action againstneutral States (whichit categorically denies)constitutes
an abusde droit. The prohibition ofabus de droit follows fromtheprincipleof good faithand
takes variousforms. Oneform is the exceptio dolispecialis:"Doloquipetit quod redditurus
estw4*is a Roman Lawrule first mentionedby Julius Paulus which, inone form or another,
has become partof the law of many c~untries~~ and constitutes a general principle within the
meaningof Article 38, paragraph l(c) of the Court'sStatute.In the light of the scaleof Iran's
own claims the United States can have no legitimateinterest requiring legalprotectionM.
Malitiis non est ind~l~endum~~ T.he United States shouldbe barred frorn claiming for the
alleged damageswhich arethe subjectof its counter-claim.
7.41 A fùrthervariationof the same principle is theruleNulluscommodumcapere de sua
injuria propria, which isthe basis for theclean handsprinciple46.The United States relies
42 L. 8 D de doli exc. 44, 4. Dig. 50, 17, 173, 3;see, also, Dolofacit, qui petit quod restituere oportet
eundem, Bonifacius VIII.,reg. 59, Liber Sextus5,;see, also, regardingthe developmentof the dolo
facit mle: Kaser, Romisches Privatrecht 13' ed., 1983, p.157;and Kegel,"Verwirkung,Vemag und
Vertrauen",in: iiohann (ed.), FestschriftPleyer, 1986,pp.513,et seq.
43 In Germany,"dolofacit qui petit quod redditurusest"isa legal principlereflected inGB: "Der
doIo petit-Einwand(wie man ihn kurz nennt) ist auch ein allgemeinerFa11des VerstoBesgegen Treu
und Glaubenim Sinneunseres 242 BGB"(Wacke,"Dolo facit, qui petitquod (statim) redditurusest",
JA 1982, pp.477, et seq.). See, also, Wacke, MünchnerKommentarzum BGB, 1981, 5 894, note 30;
Roth, Münchner Kommentar zum BGB, 1979, § 242, note 390,et seq.; Teichmann, Staudinger
Kommentar zum BGB, Berlin 1983, 5242, note 298, et seq.; Schmidt, Staudinger Kommentarzum
BGB, 13" ed., Berlin1995,5 242, marg. note 777,et seq.; Gadow,"Die Einrede der Arglist",JHerJb
84 (1934), 175,et seq.; Wendt, "Die exceptio doligeneralisirnheutigen Rechtoder Treu und Glauben
im Recht der Schuldverhaltnisse", ACP 100 (1906), 1, et seq.; RGZ (Reichsgericht Private Law
Reports)84,212; 126,383; 143,277; 160,312; 166, 113;BGHZ(Federal CourtPrivate Law Reports)
10,69, 75; 38, 122, 126;47, 266, 269; 74, 293, 300; 94, 240, 246; 110,30, 33. In other countriesthe
principleis includedin the general principleof good faith, whichispart of the legal system in Belgium,
France and Luxembourg,see, Code Civil Art. 1134(3);Greece: CC Art.288; Italy: CC Art. 1375,and
see, also, Art. 1175; Netherlands: BWArts. 6.2 and 248; Portugal: CC Art.762(2); and Spain: CC
Ans. 7 and 1258 andCommercial Code Art. 57. A comparative reviewcan be found in: Kegel,
"Verwirkung,Vemag und Vertrauen", in: Hofmann(ed.), FestschriftPleyer, 1986, pp.513, et seq. As
an example, one may also cite Art. 7 of the United Nations Convention on Contracts for the
44 International Sale ofGoods(CISG),see, Najork, TreuundGlaztbenimCISG,2000, pp. 96,et seq.
Regarding the French concept of "absence d'intérêt légitimsee"e,, Marty et Raynaud, Droit civil 1,
4s 2"*ed., Paris, 1972,p. 302.
Digest:V1.i.De rei vindic,38. See, Cheng, B., General Principlesof Law as applied by International
Courts and Tribunals,Cambridge, 1987,p. 122.
46 See, Iran's Reply andDefenceto Counter-Claim,para. 8.7. heavily on this principle,assertingthat Iran hascometo the Courtwith "unclean" hands.This
is turning the facts upsidedown. It is the United Stateswhich, by its assistanceto Iraq's
aggression and the ensuing numerous violationo sf the law of neutrality, has made its own
hands"unclean".
7.42 As to the contentof this rule, it has to be noted thatthe notion embodied in the phrase
"capere de" demands a causal link between injuria propria and nullus commodum. The
advantage(commodum)must be causedby the unlawful action (injuria). The same link of
causalityisexpressedby the legalruleex delicto nonoritur~ctio~~.
7.43 Such a link of causality exists between the unlawful behaviourof the United States
and the advantageitseeksby its counter-claim.The UnitedStates'claim is not only a resulo tf
the situationarisingout of the Iraqi aggression against Iran,utalsoof the UnitedStates'own
support for the aggressor.By violating the obligationnot to give assistance to oneof the
belligerents, the United States shares responsibility for the continuanocf the conflict. Acting
wrongfully, the United States caused the situation tha it the basis of its claim,and its claim
thus violatestherulenulluscommodum capere desua injuriapropria.By its violationsof the
law of neutrality, the UnitedStates unlawfullycreated a situationin which Iran was under
extreme pressureto defend itself against the aggressor,and similarly against those who
assisted the aggressor and promoted its causeT .he UnitedStates would reap thefniits of this
illegal conductif it were entitledto claimdamagesfor incidentswhich(if they had happened
as alleged)the United Statesprovoked by itsown illegalbehaviour.This principle, too, bars
the United Statesfromclaimingthe darnageswhich are the subjectof its counter-claim.
Section3. The prohibition of the use of force - its impact on the du@ to pav
compensation
7.44 The principlesoutlined above apply a fortiori in circurnstances where non-neutral
behaviour assists an aggression.
7.45 Where thereis an armed conflict, the question ofthe legalyardstick of the behaviour
of the States involvedarises on two levels: that of thejus ad bellum, or ratherjus contra
47 This rule is generally upheld by internationalte.g.Brit.-U.S.Ci. Corn. (1853); The Lawrence
(1855),Hornby'sReport,p.397;Cheng, op.citpp. 155etseq. bellum,i.e.,the prohibitionof the useof force,and thatof thejus in bello,the law applicable
in internationalarmed conflict. As the standardsof behaviour areof a different character,
thosetwo levelsare inprinciple separate.This is sobecausethe functioningof thejus in bello
requues that equal standardsbe applied to both parties. No distinction can be made, in this
respect, betweenaggressorand victim4*.This principle of the equalityof the parties in respect
of thejus in bel10is recognisedby the fifth preambuiarparagraphof Protocol 1Additionaito
the Geneva ~onventions~~.
7.46 But this principledoes not affectthe international responsibilityof the aggressoron a
different level, thatof thejus ad bellumsOT . hismeansthat when itcomesto the question ofan
overall settlement afterthe conflict,it is the yardstick of thejus ad bellumwhich must prevail.
7.47 In relation tothe armed conflict triggeredby Iraq'sinvasion of Kuwait, the Security
Council statedin its armisticeresolution thatIraq was responsible for al1damage caused by
that armed conflict:
"TheSecurity Council
16.Reaffirmsthat Iraq ...is liableunderinternationallaw for any direct loss,damage,
includingenvironmental damage and the depletion ofnatural resources, orinjury to
foreignGovemments,nationalsor corporations, as aresttlt of Iraq's unlawfulinvasion
and occupationof ~uwaitl'~'.
This implies, correctly,that it does not matter whetherthe damage was caused by actions
which werelegai under thejus in bellos2.This is a clearpracticalapplicationof the principle
that the aggressor is responsible for the entire damage caused by the unlawful act of
aggression.
48
For a discussionof this principle,see, Meyrowitz,H.,Leprincipe de l'des belligérants devant le
49 droit delaguerre, 1970,conclusion,p.400.
Partsch,K.J., in Bothe, M., Partsch,K.J., and Solf,W.,NewRulesfor VictimsofArmed Conflicts, 1982,
50 p. 33.
Meng, W., "War", in: Bernhardt, R., (ed.), EPIL,Vol. IV, 2000, p. 1334, at 1337; Meyrowitz, op.cit.
51 p. 299.
52 S.C. Res.687 (1991), para. 16;emphasis added.
See, Conclusions by the Working Group ofExperts on Liability andCompensation for Environmental
Damage Arising from Military Activities, in: UNEP,Liability and Compensationfor Environmental
damage, 1998,pp. 119,et seq.7.48 Applied tothe warbetween Iran and Iraq,this principlemeansthat Iraqis responsible
for al1 darnages caused by that war, even if they werecaused by acts which were in
conformity with thejus in bello. The qualification of aggression as an internationally
wrongfulact which givesrise to the internationalresponsibilityof the aggressor Statedoes
not dependon any determinationmade or not made by the SecurityCouncil. It is a rule of
general internationallaw.
7.49 The Iran-Iraq war started with a massive invasionof Iranian temtory by Iraq on
22 September 1980 andwas followed by the continuous occupation of Iranian temtory
throughout the conflict. Iran actedduringthe entireconflictin theexerciseof its right of self-
defence while Iraq violated Article2(4) of the United Nations Charterby its continuing
aggression.As noted inChapter III, above,the reportof the Secretary-General of the United
Nations datedDecember 1991 stated that Iraq's aggression"entail[ed]the responsibility for
the conflict"j3.
7.50 Internationallawnot only prohibits theuse of force,it alsoprohibits assistanceto any
unlawful use of force. This is based on the generalprincipleof law that participationin a
violationofthe law committedby a different actoritselfconstitutes a violation. In the words
of Article16ofthe 2001ILC Draft Articleson StateResponsibility:
"Aidor assistancein the commission of an internationallywrongful act
A State which aidsor assists another State in the commissionof an internationally
wrongful actby the latter is internationallyresponsible fordoingso if:
That State does so with knowledgeof thecircurnstancesofthe internationally
(a)
wrongful act;and
(b) The act would be internationallywrongfulifcommittedbythat tat te"".
7.5 1 Theactivitiesof the United States describedabovewerenotonly violationsof the law
of neutrality; they also constitutednlawfulassistancetoan aggression,i.e., a violation of the
prohibitionof the use of force.This violation engagesthe international responsibility of the
United States.This means that the United Statesis liable to make compensation for any
53 See,para.3.13,above.
54
Exhibit11. darnagesustainedby the victim of that aggression.At the very least, as aiready explained
above,the existenceof this legai duty must be a bar to any claim for compensationraisedby
the United Statesin this casess.
-
5s See, paras.7.39, et seq., above. CHAPTER VI11
RESERVATION AS TO FURTHER IRANTANRIGHTS ANDCLAIMS
8.1 Iran refers to anddoes not need torepeat theresemationsset out in Chapter 12of its
Reply, in particular its reservation with respect to "essentialsecurity interests" under
ArticleXX(l)(d) of the Treatyof mit^'.
8.2 In its Rejoinder, the United States says only that it "agrees that Article XX,
paragraphl(d) provides a measure of discretionfor a party to apply measures 'necessary to
protect its essential security interest,nd that "Accordingly, the UnitedStates accepts that
ArticleXX, paragraph l(d) may provide a defense to Iran's violations of Article X,
paragraph 1, in the same manner and to the same extent that it provides a defense to the
United States with respect toU.S. actions against the oilplatforms"2.
8.3 There is thus some agreement between the Partieson this question.In particular the
phraseology used by the United States - "a measure of discretion" - clearly implies that
ArticleXX(l)(d) is not, in effect, a self-judgingrese~ation. On the contrary, the question
whether a partycan rely on this proviso is amatter for the Court and is determined applying
the relevantlegalstandards,as Iran hasalready demonstrated3.
8.4 Unfortunatelythe agreementbetween the Partieson this issuegoes only so far. In the
passage fiom its Rejoinder cited above, the United States implies that Iran could rely on
ArticleXX(l)(d) in respectof its counter-claim only if and to textentthatthe United States
can do so in respect of Iran's principal claim conceming the attacks on the platforms.
Formally this istrue: the proviso appliesto both Parties andboth can rely on it. But in fact,
for the reasons alreadygiven in this and earlierpleadings, in the presentcase the standardof
1
See,Iran's Reply andDefence to Counter-Claim,paras. 12.3and 17.5.The issue of clean hands (dealt
2 with ibid., para. 12.4)has already beendiscussed in fseeparas. 7.41-7.43,above.
3 U.S .ejoinder, para. 6.40.
Court'sdecision inthe Nicaragua seeibid.,paras. 7.65-7.96.and, for further discussion based on the Œ
the necessityof the action concerned,the crucial aspectof the proviso,wouldbe metby Iran
in respect of the United States'counter-claim, even though(for reasonsalready given)it is
certainlynotmet by the United Statesin respect of itsownconduct. PARTIV
SUBMISSIONS
Basedon the factsand legal considerations setforthin Iran'sReplyand Defence toCounter-
Claimand in the presentpleading,and subjectto the reservations set outin Chapter 12of its
Replyand Defenceto Counter-Claimand in ChapterVIIIaboveand, in view of the present
uncertainnatureof the UnitedStates'counter-claim,furthersubject to thereservation ofIran's
right toamend these submissions,Iran requests the Court, rejecting al1submissions to the
contrary,toadiudneanddeclare:
ThattheUnited States' counter-clabe dismissed.
Date:24 September2001
[Signedl
M. Zahedin-Labbaf
Agentofthe Governrnentof
theIslamicRepublicof Iran LISTOFEXHIBITS
VOLUMEII
Walker, G.K., "TheTanker War, 1980-88:Law and Policy", International Law
Studies,Vol. 74,2000, pp. 47 and 53
Report and Recommendations madeby the Panel of Commissionersconceming the
Second Instalment of "El" Claims, United Nations Compensation Commission
Governing Council,24June 1999(extract)
Friedman,A.,Spider'sWeb -Bush,Saddam, Thatchea rndtheDecadeofDeceit,p. 41
Afidavit of Mr. Hossein Sheikoleslam (Farsiwith translation)
United States manual NWPl lB (extracts): definitions of "Operation Plan" and
"OperationOrder"
- Operation and IntelligencePenodicReport fiom 1700hours on 28March 1986
to 1700hours on 29 March 1986(in Farsiwith translation)
- Operation and Intelligence Periodic Reporftiom 1700hours on29 March 1986
to 1700hourson 30 March 1986(inFarsiwith translation)
- Operationand Intelligence Periodic Reportfiom 1700hourson 22 March 1986
to 1700hourson 23 March 1986(inFarsi with translation)
- Operation and Intelligence Periodic Report from 1700hours onM1arch 1986
to 1700hourson 1April 1986(in Farsiwith translation)
- Operation and Intelligence Periodic Reporftiom 1700 hourson 10April 1986
to 1700hours on 11April 1986(inFarsiwith translation)
Judgment of the United States Court of Appeals for the Third Circuit, 29 April
1991, in the case of Cruz et al. v. Chesapeake Shipping Inc., Kuwait Oil Tanker
Company, Kuwait Petroleum Corporation, KPC(U.S. Holdings) Inc.,et al.
Mertus,J., "The Nationalityof Ships and International Responsibility:the Reflagging
of the Kuwaiti Oil Tankers",nverJournalofInternationalLawandPolicy, Vol. 17,
No. 1,pp.209-210andp. 218
Restatementof the Lmv, Third,TheForeign RelationsLaw of the UnitedStates,Vol.
1,g 213
Department of theNavy,AnnotatedSupplementto the Commander'sHandbook on the
LawofNaval Operations,NWP (Rev. A) FMFM 1-10,paras.7.4, 7.5, 8.1.1, 8.2.2 and
9.2.3
International Law Commission, Drafi Articles on State Responsibility,
A/CN.4/L.602/Rev.1,26 July 2000,Article16 CERTIFICATION
1,the undersignedM. Zahedin-Labbaf, Agentof the Islamic Republicof Iran, herebycertifj
that the copyof each document attached in Volume II of the FurtherResponse to the United
States'Counter-Claimsubmitted by the Islamic Republicof Iran isccuratecopy; and that
al1translations preparedbythe Islamic Republic ofIran areaccuratetranslations.
[Signed]
M. Zahedin-Labbaf
Agentof the Islamic
Republicof Iran
Further Response to the United States of America Counter-claim submitted by the Islamic Republic of Iran