.fNTHE NAI\1E OF GOD
INTERNATIONAL COlJRT OF JUSTICE
CASE CONCERNING OIL PLATFORMS
ISLAMIC REPUBLIC OF IRAN
v.
UNITED STATES OF Al\1ERICA
REQUEST FOR HEARING IN RELATION TO THE
UNITED STATES' COUNTER-CLAIM
PURSUANT TO ARTICLE 80(3) OF THE RULES OF COURT
18 November 1997 IN THE NAME OF GOD
'1
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNJNG OIL PLATFORMS
(TSLAMTC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
REQUEST FOR HEARING IN RELATION TO THE
UNITED STATES' COUNTER-CLAIM PURSUANT TO
ARTICLE 80(3) OF THE RULES OF COURT
A. INTRODUCTION
1. By Jetter of the Regis21Octobe1997the Court invited the Applicant, the
Islamic Republic of Iran ("Iran"), to specity in writing the legal grounds on which it believes
that theited States' Counter-Claim, a:s formulated in its pleading of 23 June 1997, is
inadmissible. This statement responds to that invitation and, as a consequence, confirms the
1
Applicant's request for an oral hearîng, a,s contemplated in Article 80, paragraph 3, of .the
Rules, to enable the Parties to address the issues raised by the written exchange.
2. It should be recalled th1t the ptesent proceedings were instituted by Iran on 2
November1992Iran's Application concerned specifie United States' attacks on oil platforms
beionging to the National Iraniany. The attacks occurred on 19 October 1987 and
on 18 April 1988. The basis of Iran's clairri in this Case was that these attacks breached three
1
provisions ofthe Treaty of Am1ty between the Parties signed on 15 August 1955. These were
ArticlIIV(J) and X(I ).
3. Following a Preliminary Objection iodged by theCourt~Q iJ.ted, the
Judgment of 12PecemberLit'!. tCQIfte.rety_o}A.i.y~a'a"pçalecl~.
to'the Iracl~n.Spci'cay,he Co~ herdtat the lawfulness of the attacks on the
platforms "can be evaluated in relation to that paragraph" (Judgment of 12 December 1996,
paragraph 51). The Court's Judgment is of course binding on the Parties pursuant to Article 59
of the Court's Statute. The Courtli_mit~ee<dolts!g_-h,legality of the i
a]"tâ"sr{thplàtform_n_qe-Article1)ôfthe Trèaty, ·t_uffl~~oo Theoih~~-:pr.oy_islonîr.
Court also decided inat-d1eof Article·X( 1) of the T·reaty_which relates_to. the presentj..
affâîr'is feedomaÔtfomrmercébltaeettientgitritsof thPar t ias~;-
never been suggested that the platforms which were attacked were engaged in "navigation"
within the meaning of Article X(I) or were "vessels" within theX(2).Thus,f Article
the Court's Judgment on the preliminary objection confirmed that the Case was further lirnited
2
to the issue offreof commerce.
4. ~~!~.!~e_sap ndecrcfeinture of the issues which remained for decision as a
r!s.ult of the Court's Jud12December 1996the Respondent has now chosen to react
by lodging a counter·claim of a sweeping ancharactalI~ts.pleading of 23 June
1997,the Respondent's Counter-Ciaim is described as follows:
"The counter-claim is based on actions by Iran in the Per1987-8thatduring
created extremelygerous conditions for shipping, and thereby violated Article X of
the 1955 Treaty. Iran's actions resulted in significant damage ta U.S. commercial and
milîtary vessels ...
5. In its formulation of the Countethe Respondenrefers throughoto "U.S.
vesselsby which it evidently means bath vessels which arguably qualified as such under
ArticlX(2)ofthe Treaty, and foreign vessels in which United States nationa\s had ownership
interests or which were carrying United States goods but which were plainly not United States
vessels for the purpoof the Treat/The Respondentfurthe"reserves the right...to
supplement information contained in this pleading regarding attacks on U.S. vessels, as weil as
to add further instances of Iranian attacks on U.S. vessels in th1987-88"an] Gulf in
In particular, the Court held thal Article 1 of the Treal)· did not create separate substantive rights
between the Parties, although il is relewmt to the interpretation of other Articles. See, Judgment of 12
December 1996, para. 3L
2 Sec. ibp;w38.
3 U.S. Countcr-Memorial and Countcr-Ciaim. para. 6.0 1.
See. ibid., para. 6.08. The fact thal the United St;Jtcs fonnd it necessary to rely on the consent, or "Jack
of objection", of other States whosc flag certain of the ships were flying further demonstrates that
point.c, ibid., para. 6.24, footnotc 397. With respect to vcssels to which Article X of the Treaty
applies, such consent or "Jack of whollunnecessary. The Islamie Republic of Iran
reserves its positione legal effcct. if any, to be attached to consent or lack of objection on the
partf third tlag States.(U.S. Counter-Memorial and Cmmter-Ciaimpara.6_26).Thus, although the United States
5
lists seven alleged attacks on "U.S.vesse!s", it does so by way of .llustration only
6. The United States confirms that its Counter-Ciaim is, at !east in part, general and
unspecified, in parag6.25of its pleading_There, it also notes that its Counter-Ciaim is not
limited to the seven specifie incidents:
"Rather, the United States daim is based on Iran'sobligation to the United States itself
to abideby the provisions of Article X. Iran's overall conduct in creating extremely
dangerous conditions for the conduct of U.S. maritime trade in the Gulf, including the
attackson U.S. vessels, violated lran'sobligations under Article X."
Thus, the daim also relates to ali possible actions by Iran in 1987-88 which might allegedly
have· created dangerous conditions foS_ maritime trade in the Persian Gulf As a
consequence, the U.S. daim for damages is equally wide:
"In ascertaining what reparation should be made for such a violation, it is appropriate
ta consider ali damage to the interests of the U.S. Government and its nationals,
regardless of the legal form under which those interests arise. Such damage would
include the significant costs incurred by the United States in deploying additional
forces to the [Persian] Gulf to protect maritime commerce by escorting vess'els,
clearing minefields,and other activities".
The formai submissions made the United States in respect to its Counter-Ciaim confirm that
its scope is, as these quotations demonstrate, unlimitedand unspecified.
7. In filing such a general and vague Counter-Ciaim, the RespondentÎ.QJI:.•w~y
wl1 _ii~lf}iéons.isteri decwredposiioton climsvunderhe.Tre:t·of ymi~y.
and which also ignores the Court's own approach. Having first sought to exclude or
significantly limit Iran's daim by relying on a narrow interpret1955nTreaty (an
interpretation in sorne respects adopted by the Court). the United States now seeks to bring far
wider daims, indiscriminately formulatedhaving no regard either to the terms of the
.-~~ .--~.- ~
Treaty or to the Court's Judgment of 12 De1996.This change of position is vulnerable
to a number of further criticisms. J. hUnited ·stat€:5-:-sëeksto widen the dispute fo
5 It should be 110tedin this context that in his corrcspondcnce with the Agent of the Islamic Republic of
Iran, the Agent of the Uni!cd St<ltcsor America has refcrrcd to other vcssels, which are not however
included in the U.S. CounterSee. the Agent of the United States of America's letter dated
March 26,997,10the Agent of the lslamic Republic of Iran enclosed with the Agent of the Islamic
Rcpublic of Iran's lcttcr to the Registrar dated 2 Octobcr 1997.E.!:,O -,VtihIj~tn_ of Amity, Articles X(2)·(5), which were never m quesm the
proceedings to date, and have never been mentioned before by the UnitSecond, the
United States also seeks to widen the dispute to include U.S. daims Iran's overall
tçmctl1~QI:!gb~~ 118:.8t ~he~i.~aE lwaysiboe_dts posi_tion in the pre1ÎQ1Înacy;.
o_Qj~_ pçateh<tm such overa\1 conduct, at !east insitconcernedthe United States,
was irrelevant in this Case, and specifically brought its preliminato limit Iran's
cla. aifa~as possibleThird, and l!lqst importantly, the United States has effectively refused.
~ --··- -.- -.. ' .
t_Q_seekto resolve these wider disputes· by diplomatie negotiations, despite Iran's agreement to
such negotiat Irn wonud aik-the Court to take into accouthese factors when it
considershether the United States' Counter-should be joined in this Case.
8. Counter-Claimsare dealt withtheRules of Court and not in the Court's Sttoute,
which States are partJtis Iran's position that this is an ainfaveur of a cautious
approach to the issue of whether or not a counter-claim is Article 80 of the Rules
ofthe Court deals with the admissibility of countIprovides as follows:
"l. A counter-claim may be presented provided that it is directly connected with the
subject-mattof the daim of the ether party and that it cornes within the jurisdiction of
the Court.
2. A counter-claim shall be made in the Counter-Meof the party presenting
it, and shall appear as part of the submissions ofthat party.
3. In the event of doubt as to the connection between the question presented by
way of counter-claim and the subject-mof the daim of the ether party the Court
shall, after hearing the parties. decide whether or not the question thus presented shaH
be joined to the original proceedings."
The French text of paragr3states:
"3. Si Je rapportde connexité entrela demande présentée comme demande
reconventionnelet l'objet de la demande de la partie adverse n'est pas apparent, la
Cour, après avoir entendu les parties, décide s'il y a lieu ou non de joindre cette
demande à l'instance initiale."
6 See, the Agent oIslmniRcpubliclran'lcttcr to the Registrar daled 2 October 1997, and the
correspondenceattached.9. For the reasons stated in Part B of this Statement, ît is Jran's position that there is no
"direct connection" between the United States' Counter-Claim and the principal daim
formulated by Iran under Arti1)of the Treaty relating to the specifie attacks on the oil
platforms. Moreover, the seven incidents invoked by the Ufi!!J:~tatO!hlJlte d~
~Çf' of h~ _Treatyof Amity, and in particular the provisions of Article X(l) dealing with
freedomof commerce between the territories of the High Contracting Parties. _Followingthe
Cpurt's Judgment of 12.Dece1119~r 9!~l îsthes)o basis in the Treaty&ll.,.Wh.içb:.the_
Cç.yrt-ca.n-e:yratee legality of these alleged attacks in thSince those seven
incidents, which are the only specifie incidents on which the United States currently relies, have
no direct factual connection with the pl<1tfonnsand fall outside the jurisdiction of the Court
under the Treaty of Amity, the United States' Counter-Ciaim faits to fulfil the requirements of
Article 80, paragraph 1, of the Rules. To the extent the U.s_ Counter-Ciaim is more general\y
framed, without reference tospecifie incident, it is impossible for the Court to determine
whether thereis any "direct connection". Indeed, it must be doubtful whether any such
generalised daim is evenjusticiable.
1O. Irani~n"----.,ô.. '-J••,.tted States' Counte•"l.'im, as formulated, is inadmissible
un,~ Aerticle 80, paragraph; 1,.of thJiJherefQI. th(_Cotrskohear the Parties
pursuant to Article 80, paragraph 3, of the..Rules, in order to decide whether or not the
.......
question presented in the United States' Counter-Claim "shall be joined to the original
proceedings" Iran sets out below in outline the reasons why the daim presented in the
Counter-Ciaim should not be so jo-~~-mll];i :~trbjctin.innti_statement, Iran
reserves the right to further particularise and develop them in the hearing for which Article 80,
7
paragraph 3, specificallypr.vides
Iran understands thal the word "hcaring" in this paragr<lph refers to oral hearing, consistent with the
useof this word in othcr Rules. and its dis1inction from references in the Rules to wriuen proceedings
or observatiln this regard, Article 43 of the Statute makes dear thal proceedings can be written
and oral, written proceedings consisting ica!ion of documents (Article 43, paragraph 2),
oral proceedings consisting in a hearing (Arti~.ealso Article 54 of the Rules).
References to oral hcarings are clcarly intended whcrc language similar to or the same as that in
Article 80, paragraph 3. is used. Sec. Art ides 59: Article 74. par.-1graph3 (interim measures); Article
79. paragraph 7 (preliminary objection): and Article 84, parOn the othertervention).
hand, the Rules only refer toions", imptying written comments, in for example Article 76,
paragraph 3, relating to the revocation or modification of interim measurcs.B. SUMMARY OF IRAN'S OR.JECTJONS TO THE UNITED STATES'
COUNTER-CLATM
Il. Article 80 envisages that counter-c!aims may only be presented if two conditions are
met. First, there must be a direct connection between the counter-claim and the original claim.
In the terms of the French text, the two must be "en connexité directe". Secondly, the counter
claim must be within the jurisdiction of the Court. If there is any doubt about the direct
connection, there is to be a separate hearing and the Court is to decide. See, respectively,
Articles 80, paragraphs 1 and 3.
12. It should be stressed that the normal procedure for the introduction of affirmative
daims before the Court, in cases not depending on a special agreement, is by way of
application. If a daim falls within the jurisdiction of the Court, it can always be brought by
separate application, in which case no issue of direct connection with any ether daim will arise.
If it does not fall within the jurisdiction of the Courtit cannat be brought at ali, whether by
way of application or counter-claim. The Rules provide for the special procedure of counter
claim only in limited cases, where the connection between the counter-claim and the principal
daim is specifie and direct. The point was made by Anzilotti, commenting on Article 40 of the
Rules of the Permanent Court, which was much Jess specifie in its tenns than the present
Article 808 .According to Anzilotti:
" une correcte interprétation du Statut porte à considérer que la demande
reconventionnelle ne peut être admise qu'exceptionnellement dans le cas où cette
demande se trouve en rapport spécialavec la demande principale. 9 "
This requirement of a "special link" ("rapport spécial") was subsequently expressly ·recognised
in the 1936 revision ofthe Rules, and this language is now reflected in Article 80, paragraph 1,
of the present Rules of Court.
In ils earlier form, the second paragraph of Article 40 provided thal the Counter-Case shall contain
"conclusions based on the fl:lctsstatcd: thcse conm<~sinclude counter-claims, in so far as the
luer come wi1hin the j urisdicli1he Court".
9
D. Anzilotti, "La demande reconwnfionnelleen procedure internafionale ", 57 Journal de droit
international1930), 857 p. 870. Sce, aIso at p. 866. 7
13. Moreover, the direct connect ion required by Artide 80 is not just a connection of fact
but a legal connection, which the Court in its Judgment in the Chorzow Factory case referred
to as a "connexité juridique". In that case the Court stated:
"... que la demande reconventionnelle est basée sur l'article 356 du traité de Versailles,
qui constitue le fondement de l'exception soulevée par la partie défenderesse, et que,
pourtant, 10lle se trouve en rapport de connexité juridique avec la demande
principale. "
It was on the basis of this jurisprudence that the current requirement of "direct connection"
was formulatedll .
14. Thus Article 80, in imposing the requirement that a counter-claim be "directly
connected" ("en connexité directe") with the primary daim, added a requirement over and
above that of "connection". The connection must be direct. As the Court put it in its Order of
15 December 1979 in the Diplomatie and Consu/ar Stqff Case, there must be "une étroite
connexitéjuridique" ("legally ... a close connection with the subject-matter of the United States
12
Application") • Unless this direct connection can be established ex facie, the counter-claim is
inadmissible.
15. In the present case, the United States' Counter-Ciaim Jacks the required direct
connection with Iran's daim, and is inadmissible for failure to comply with Article 80,
paragraph 1, of the Rules. This is so, illler alia, for the following reasons.
(1) Lack of Specificity of the U.S. Counter-Ciaim
16: It follows from the procedure envisaged by Article 80, paragraph 3, of the Rules that a
counter-claim must be pleaded with sufficient specificity, so that the Court can determine
whether Article 80, paragraph l, has been complied with. The United States' Counter-Ciaim
fails to meet this requirement of sufficient specificity in severa! respects:
10 Factory at Chorzow, Merits, Judgment No. 13,19:!8,P.C.J.J., .SeriesA, No17,p. 36.
Il
G. Guyomar. Commentaire du Reglemenf âe la Cour /ntemalionale de Justice, A. Pedone, Paris,
1983, pp. 521-2, with references.
12 Provisional Mensures, Order of 15 Deccmber 1979. I.('.J. Reports 1979, p. 7 at 15 (para. 24). "
R
(a) The Counter-Claim is not limited ta the seven incidents referred to in paragraph
6.08. It does nothing more than allege unspecified Iranian interference with
unspecified maritime trade between the United States and Iran. The Court is not
in a position to determine what direct connection may exist between any such
interference in that maritime trade and the United States conduct which is the
subject oflran's daims. ln fact, it ia priori extremely unlikely that there is any
such connection. None has hitheri:o been relied on or referred to by the United
States.
· ~ ~ ~ - - · ~ · - · ._____- -__ - . . . . . . . . . . . . _ _ _
on U.S. vessels in the [Persian] Gulf in 1987-88". However, under Article 80,
paragraph 2, of the Rules, no counter-claim may be filed after submission of the
counter-memorial, and thus Iran does not accept this reservation. In any event,
in the case of each such instance which the United States may subsequently seek
to introduce, it would be necessary to apply the test of admissibility under
Article 80 of the Rules. Without information asto the instances in question, .the
Court is obviously not in a position to do this.
(2) Lack of Direct Conm~cti wilh lnm's Cl:lims: ln General
17. To the extent that the United States' Counter-Ciaim consists of a general assertion of
the violation of freedom of commerce and navigation between the United States and Iran,
either under Article X(l) or under Article X(3)-(5), there is not even the appearance of any
legal or factual connection between such a violation and the attacks on the platforms. The
United States did not attack the platforms because of any alleged Iranian attacks on vessels
engaged in trade between Iran and the United States, whether or not such vessels were U.S.
vessels within the meaning of Article X(2).
18. It must be stressed that the requirements of Article80 of the Rules do not apply to any
plea a respondent State may make by way of defence, justification or excuse for its conduct,
but only to affirmative counter-c\airns. The Court, having jurisdiction over a daim in any case,
necessarily has jurisdiction to decide on any defence or excuse which may be relied on in ')
relation to that daim. The issue here is that of the admissibility of counter-claims, which are
only allowed on the conditions laid down in Article 80.
(3) Lack of Direct Connection with lran's Claims: Specifie Cases
19. Turning to the seven specifie attacks on "United States shipping" which have been
alleged, non-exhaustively, by the Respondent, the Islamic Republic of Iran has the following
observations:
(a) The Bridgeton (US. Cm111ta-Menwrial and Cmmter-Claim. para. 6.08.
point l)
The United States does not daim that the Hridgeton was engaged in commerce or even
navigation between the territories of the two contracting parties. within the meaning of Article
X(l) of the Treaty of 1955 13. Moreover. there is no evidence that any alleged attack on the
Bridgeton had any connection in fact to the platforms which are the subject of lran's daims, or
to the actual attacks on the first platform, which occurred three months later. There is thus. no
legal or factual connection between the Bridgeton and the daim· presently before the Court.
The Bridget on was a retlagged Kuwaiti tanker. 1ran has never accepted the validity of this
reflagging and thus does not accept that the Brîdgeton qualifies as a U.S. flag vesse\ under the
1955 Treaty. Although this point goes to the admissibility of the U.S. Counter-Claim, Iran
does not propose to raise the argument here, because, even on the factual assumptions as
presented by the United States, the Bridgeton cannat be included in the U.S. Counter-Claim.
Nevertheless, Iran reserves the right to present this argument in full,should this be necessary,
in subsequent pleadings in this Case.
(b) The Texaco Carihhean (US. Cmmter-Memorial and Counter-Claim. para.
6.08. point 2).
The United States acknowledges that the Texaco Carihbean was Panamanian-registered.
Thus, it was not a "vesse! of [a] High Contracting Party" within the meaning of Article X(2) of
1) To the contrary, the U.S. Preliminary Objection acknowledges (AnipMa. Al.l3) thal the vessel
was "in ballast ... en route to Kuwait". in other words not engagcd in commerce bctween the two
Parties. JO
the Treaty. Article X(2)-(5) are accordingly irrelevant in the present case. The Texaco
Carihbean may have been carrying Iranian oil and may have been engaged in commerce
between the territories of the High Contracting Parties. In this respect, however, it is unique
amongst the cases referred to by the United States. Nevertheless, there was no connection,
legal or factual, between the alleged attack on this vesse! and the platforms which are the
subject of Iran's daims, and none is alleged by the United States. The incident is alleged to
have occurred outside the Persian Gulf and over two months prior to the first U.S. attack on
the platforms. For these reasons, the incident has no connection with the subsequent attacks on
either ofthe platforms, and stillless a "direct" connection.
(c) The Seo Isle ()tv (U.S. Cmmta-Memorial and Cmmter-Ciaim, para. 6.08,
point 3).
The United States does not daim that the Sea Isle City was engaged in commerce or even
navigation between the territories of the two contracting parties, within the meaning of Article
X(l) ofthe Treaty of 1955. To the contrary, it asserts that the vesse\ was approaching the oil
Joading tenninal at Kuwait's Mina al Ahmadi port when it was hit. Thus, the United States
daim does not even arguably fall within the scope of Article X(1) of the Treaty, and thus Jacks
any direct legal connection for the purposes of Article 80 of the Rules. Moreover, there is no
evidence whatever that any alleged attack on the Sea Isle City had any connection to the
platforms which are the subject of Iran's daims. or that the platforms cou\d have had any role
in relation to that incident. There is accordingly no element of direct factual connection either.
The United States cannat create such a connection merely by virtue of the fact that it cited the
attack on the Sea Isle City as a justification for its first attack on the platforms. The existence
or otherwise of a legal justification, excuse or exemption for the United States' attack is not
sufficient to create a direct connection for the purposes of bringing a counter-claim within
14
Article 80 of the Rules •
14
The .\'eaIsle Ciwas a renaggcd Kuwaiti f:mkcrand thusthe s.mlecomments apply as were made
abovewith respectto thelMt~r;eton. Il
(d) The Luc v( U.S. Cmmter-Memo,.;at and Cmmter-Ciaim. para. 6.08. point 4).
The United States does not daim that the Lucy was engaged in commerce or even navigation
between the territories ofthe two contracting parties. within the meaning of Article X(I) of the
Treaty of 1955. Nor was the Lucy a "vesse! of [a] High Contracting Party" for the purposes of
Article X(2)-(5) of the Treaty. The United States acknowledges that it was a vesse! en route to
the U.A.E., and was Liberian flagged. The Court thus has no basis to appreciate the legality of
any alleged attack on the Lucy under Article X of the Treaty. Moreover, there is no evidence
that any alleged attack on the Lucy bad any connection to the platforms which are the subject
of Iran's daims. Finally, the incident involving the Lucy is alleged to have occurred on 15
November 1987 as the vesse! was entering the Persian Gulf. one month after the first U.S.
attack and five months prior to its second attacks. In these circumstances. there is no direct
connection, legal or factual, between the alleged attack on this vesse! and the attack on either
of the p\atforms.
(e) The E.\:\·nFreeoort (ll.S. Counter-Memorial and C:ounter-Ciaim. para. 6.,08.
point 5).
The United States does not claim that the Esso Freeport was engaged in commerce or even
navigation between the territories of the two contracting parties, within the meaning of Article
X(!) of the Treaty of 1955. Nor was the Esso Frecport a "vesse! of [a] High contracting
Party" for the purposes of Article X(2)-(5) of the Treaty. The vesse! is stated to be
Panamanian-flagged and engaged in trade with Saudi Arabia. The Court thus has no basis to
appreciate the legality of any al!eged attack on the E.\so Freeport under Article X of the
Treaty. Moreover, there is no evidence that any alleged attack on the E.u·o Freeport had any
15
connection to the platforms which are the subject of Iran's claim . In these circumstances,
there is no direct connection, legal or factual, between the alleged attack on this vessel and the
attack on either ofthe platforms.
15
Tite incident involving the Esso Freepnrt allegedly occurrcd one day aller the incident involving the
Lucy and in the same area. 12
(f) The Diane (US Cmmter-Menwrial and Cmmter-Ciaim. para. 6.08, point 6).
The United States does not daim that the Diane was engaged in commerce or even navigation
between the territorîes of the two contracting parties, within the meaning of Article X(l) of the
Treaty of 1955. Nor was the Diane a "vesse! of [a] High Contracting Party" for the purposes
of Article X(2)-(5) of the Treaty. The Court thus has no basis to appreciate the legality of any
alleged attack on the Diane under Article X of the Treaty 16• Moreover, there is no evidence
that any alleged attack on the Diane had any connection to the platforms which are the subject
of Iran's daims, or to the second attack on the platforms which occurred 10 weeks after the
incident allegedly involving the Diane. In these circumstances, there is no direct connection,
legal or factual, between the alleged attack on this vesse! and the attacks on the platforms.
(g) The U..\'.S.Samuel B. Uoherts (US. Cmmter-Memorial and Counter-Claim.
para. 6.08. point 7
The United States does not daim that the Samuel B. Roberts was engaged in commerce or
even navigation between the territories of the two contracting parties, within the meaning of
Article X(l) of the Treaty of 1955, and even ifit had been, as a vesse! ofwar. the Samuel B.
Roberts was expressly excluded from the scope of Article X( 1) of the Treaty by Article X(6).
Moreover, there is no evidence that any alleged attack on the Samuel B. Roberts had any
17
connection to the platforms which are the subject of Iran's claim . There is accordingly no
element of direct factual connection between the attacks on the platforms and the alleged
Iranian mining of the Samuel B. Rnberts. The United States cannet create such a connection
merely by virtue of the fact that it cited the mining of the Samuel B. Roberts as a justification
for its second platforms attack. The existence or otherwise of a legal justification, excuse or
exemption for the United States' attack on the platforms is not sufficient to create a direct
connection for the purposes of Article 80 of the Rules.
/
16
The Diane isstatcd to be Libcrian Hagged <ltohave been trading between Bahrain.the U.A.E. and
Japan.
In itsCounter-Memorio/ and (.'ountcr-Ciaim.theUnited Statescites nofact connectingthemining of
the Samuel B. Robertswith any of thplatforms.20. The above analysis is based on the presentation of these incidents made by the United
States and without entering into disputed questions oflaw and fact in relation to them. In short
the above analysis is entirely without prejudice to the Iran's position at any subsequent phase of
1
the present procee~ d.ings
21. However, even accepting the position as alleged by the Respondent, solely for the
purposes of determining the admissibility of the Counter-Ciaim and entirely without prejudice
to the subsequent determination of disputed legal and factual issues, the following picture
emerges. Of the seven specified incidents of alleged lranian interference with "United States
shipping" in the Persian Gulf during the years 1987-88:
No fewer than six incidents involved vessels which were not (even arguably)
engaged in commerce or even navigation between the territories of the High
Contracting Parties (Bridgeton; Sea Isle City; Lucy; E.s~ Free0ort; Diane;
US.S'Samuel B. Hoberts), and the United States has not even argued that they
were so engaged. They are accordingly irrelevant to a Counter-Ciaim which is
founded on an assertion of a violation of freedom of commerce and navigation
between the two countries.
Only with regard to one of the vessels - the Texaco Carihhean - could itbe
argued that it was covered by Article X(!) of the Treaty, which is the provision
by reference to which the legality of the attack on the p\atforms is to be
appreciated19• However, the Texaco Carihhean was not a U.S. flagged vesse!
and, in any event, there is no factualr legallink whatever between the alleged
attack on theTexaco Caribhew1 and the attacks on the platforms20.
18 Iran has aIso reserved ils rlght lo deal fmi hcr with ils objccllons inter alia to the inclusion of third
State flag vessels and reflaggcd vcsscls.
19 In other words, only the Texaco Carihhenns1T!,'l1angaged in commerce or navigation between
the territoriesthe High Contracting Pan ies.
20
The United States did not rcfcr to or rely on the :llleged attack on the Texnco Caribbean as a
justification for either attack on the platfonns.no evidence whmever thal any of the platforms
was in anyway involvcd in the alleged attack on the Texnco Cnribbeon. 14
Even assuming that' there may be a suff(connexité juridique)
between ims of a breac h ·of freedom of commerce under Article X( 1) of the
Treaty (which pursuant to the Court's Judgment 1996 nowcember
fonns the sole basis of Iran's Application) and daims of breaches of freedom of
navigation under Articles X(J)-(5), only two of the incidents involved U.S.
vessels within the me<ming of Article X(2) which were even arguably covered
21
bythose paragr(BridgctandSea ICity).In any event, none ofthese
incidents. even on the facts alleged by the United States, raises, even arguably, a
case ofviolation of Artic.e X(3)-(5)
(4) Lack of .Jurisdiover the UnitStates' Connter-Chunderthe
T1·eatyAmity
22. Article 80, paragraph 1, of the Rules clearly stipulates that a counter-claim may not be
presented unitcames within the jurisdiction of the Court. In the light of the above, it is
lran's position thatted States' Counter-Chtim does not satisfy this requirement.
'('-., lld -
23. It is, however, o·ot-entir:ely"clear fremt11e~Hfiiguage~of-=-0~c 'e··so~-paûigfaph-J~-otthe_,.
lilî'&Wm~a·ec pragap=povleSexr1s ·caveJaQorb j ·e.cwt~i io_ncG ~ :that
counter-claim rased. on Jack of j.urisdicti0ry, or on some other grou nd of inadmissibility distinct
from Jack connection. In this regard, the Applicant would make the following observations.
24. Despite the unclear language of Article 80, paragraph 3, of the Rules, Iran is convinced
that it must be interpretedntext of Article 80 as a whole, and Article 80, paragraph 1,
in particulArticle 80, para1, makeitclear that the two conof direct
connection and jurisdiction must be met for a counter-claimccordingly
21 The Texnco Carihbean, Lucy, Eu·o Freeporf and Diane werc foreign flagged mtd were thus excluded
from the scopeticle bythe express language of Article X(2). The Samuel B. Roberts, as
a vesse! of war, was exprcbyArticle X(6). Il was, in any event, not engaged in
navigation between the territories of the High Contraeting Parties. This is of course quite apart from
theact thal Iran docs not acccpt the opposabi lily of the reflagging of the Sen Isle Ci(v and Bridge ton.
22 As to Article X(J), none :lany relevant time carrying cargocs to "ports, places and
waters" of Iran. and no issues of national lfctreatmenr arase. As tod-nation
Article X(4), simil;trly, no issues of national ttreatment in the-favoured-nation
carriage of producls from the terrilory of !mn arose. Nor did any issue arise under Article X(5): none
of the vcssels sought or was rcfused refuge in a port or haven of Imn. ---------------------- -
15
Jogical to assume that if one or other of these conditions were clearly not met, then the
counterclaim would be inadmissible and wou\d not be joined to the main daim, despite
knowing in advance that it had no jurisdtotdecide the Counter-Ciaim on"the merits.
Moreover, faced with hypothetical counter-claim which had sorne links with the main daim
but which was plainly not within the Court's jurisdiction, it would be absurd if the Court
nevertheless had to join the counter-claim to the main claim despite knowing it advance that
had no jurisdiction to decide the counter-claim on the To the contrary, one must
assume that the Court's evaluation of direct connection presupposes the Court'sjurisdiction, in
the sense that, ifthere was a clear laèkofjurisdiction, the determination by the Court that there
was connection would, or !east could, ultimatelybe inutiliter data.
25. In making this point, Iran does not suggthe*QCQ.Ce~J! intce80aredear
- ~--h--- -- - u--·
~uh.~Jitu '!preimirary objectip_i\ which would address ali issues of jurisdiction and
admissibilitydetail. Iran is simply stating that-when it is clear ex facie, and even on the basis
of the facts put forward by the counter-claim<mt,that the Court has no jurisdiction in the
contextof the Case in question. the Court has the authority u80,paragraph 3, not
to join the counter-claim.his Case, it is fran's position that it is sufficiently clear ex facie
that thenited States' Counter-Ciaim is not within the jurisdiction of the Court, and that this
can be determinedby the Court independently of a full preliminary objection proceeding
dealing, in the manner prescribed for preliminary objections, with ali issues of jurisdiction and
admissibility.
26. In this regard, a State should not be deprived of its right ta test the jurisdiction of the
Court, and the admissibilityof a substantive daim brought against it, by reason of the fact that
the daim is presented as a counter-claim. The policy underlying the Statuthat~d Rules is
(S.. itaQ(llfi_!ltitJedto questth~Court'sjurisdiction over a daim prior to being called
~~!~S~? to_nedmerits of that ~_la!nmtheother hand. ~e.:b& XfoiJ!_"_L,Ii}igeich
80;P<l[figrgpJJ,.rovi<;lesis evidinte~d te_bea brief one,it. hich-the protècti:ve
provisions of Article 79 of the Rules do not as such apply. In any evetheCourtdecisio?,. ·
----- .---------.---·- ---- \'_,....,.--
is called upon ta make under Art80.parag_@f-3, concerns exclusively the guestion of
whether or nor~ecounter-claî~houl bdjoined to the original proceeding_s.lt follows that,
if the Court decides in favour of joinder. such a decision couid not pŒj.u_di.cLi.n_ao_y_wa)U_he_
23
Cf. Stahlte, Article 36(6); Rulcs. Article 79(7). 16
right of the party objecticountethe ~t oaceanydemence relating either to the
v\
admissibility or to the mercounter~heicl uis-quent phase of the proceedings.
For these reasons, '-\the Areservethe right, if neceto lodge~reliminary
1
objections in respect ofthe UnC'o~r-CtCite.
27. However,..~E~J_ a co,lte-claim is plainly outsîde the Courtj~---~isdic!Lon
~:!_~ t~e1rposs f prclr80, pamgra3. t ~astt_way~
Firsif no facts are pleaded by the counter-claimant which would show that the
counter-claim cornes within the jurisdiction of the Court, this must be relevant
in deciding "whether or not the question thus presented shall be joined to the
original proceedJn the Applicant's view, the Court has a discretion to
decide whether joinder is to be allowed. A counter-claim which fails to satisfy_
the express requireimposed by Article 80 Qara1should not be
joinedto the origi~roceedi wneshr the failure relates to Jack of
connection or Jack of jurisdiction.
Second/in pa11icular cases there may be a link between the Jack of jurisdiction
andthe lack of direct conneCases of coursmay arise where the
requirements of jurisdiction and direct connection can be applied separately. A
daim which is directly connected may not be withivice versa.ion and
But in a given case there maY.._!Vel!be a link between an evident Jack of
jurisdiction and the Jack of direct connection. This arises from the proposition,
affirmed by theanent Court inChorzow Factmcase, that a counter
claimustbe "en rapport de conjuridiqavec la demande principale"
(emphasis added).a!! within Article X( 1) of the Treaty of Amity, and in
particular its guaranteedom of commerce, a daim must be capable of
being characterised, and its legal basis evaluated, by reference to that provision.
Thishe Court mCideclear in its J12December1996The fact that a
counter-claim evidently cannat be evaluated by reference to that (or indeed any)
provision the Treaty, itse!f tends to establish the Jack of a direct juridical
connectibetween the counter-cand the original daAnd that is
certainlye in the present case. 17
C. CONCLUDTNGREMARKS
28. There is no injustice in holdto the requiremoftsant
admissibi!ity laid8ofthe Rlis always open to the party concerned to
commence separate proceediin the normal way, subject to the Court's
finding it hasMoreover, as noted already, the requirement of direct connection
does not apply to any plea by way of justification or excuse which the United States wishes to
make in respect of the attacks on the platforms, or to any exception from the requirements of
the Treaty which it may gain by application of Article XX(\ )(d).
29. By contras!, byway of counplaces the State responding to the
counter-at a significanIf joinder of theis permitted, the
~_Q.Ddent-to apartec_cnouint~er!-.IE~w~reat~se~n-~-~~
t~~~~~-an ~iiiJ: t!~Yr,~J~s_t]..~ndtt.l~~:.!~.~t
30. More importantly, had the United States brought its present Counter-Clairn by way of
an Appliiwould have been open to Iran to bring its own counter-cfaim. In this context,
it should be noted that the generalised daim of the United States with respect to the period of
1987-covers a series of incidents with respect to which Iran has important additional daims
24
of its .owever, having first used its preliminary objection to seek to limit the daims
brought by Iran, the United State80of the Rules ao achievee
selective and partial widening of the dispute, beyond the focused daim allowed to stand by the
Court's Jud1Decemb199and without taking into account lran's own additional
caims.
31. The inappropof this manner of proceedinby the factr compounded
that Iran agreed to comprehensive negotiations in an attempt to resolve ali such legal issues
arisingwethe Parties in relatioHowevthe United.hasates
apparently taken the position that it will only negotiate on the basis of a prior admission of
24
Some of these me alluded to inran'slel\cr dated 12June 1997 toic cif
the Agent of the United Statesof America ;lttached to the Agent of the lslamic Rcpublic oflran's letter
to the Registrar dated 2 October 1<)97. responsibility by Iran, as weil as the prior exclusion of any matters for which the United States
25 '
is, in lran's view, responsible
32. In the light of the above, it is clear that· Iran would be severeitwas noticed if
allowed to brîng its own additional daims_ If the United States' Counter-Ciaim was admitted,
Iran wouldnecessaril)(_b$!f9rced to seek leave to introduce such daims.
33. •'If the Case were to be widened in the :way proposed by the United States, this might
also prejudice thirdtt's' interests'. 'Article 40, paragraph 3, of the Statu teyof the Court on!
--------------- ----~- --~-----~-~--~ --------------
provides that a new case is notified to third Stât~ïgl1ivingtatrequest intervention
~--- ----~
in certain circu mstances pursuant to Article 62 ;of No such provision is made with
resQect to counter-claiIn this case, where. it is at !east possible that severa! other States'
interests might be affected by the kind of wiâening of the dispute proposed by the United
States, this must be a serious consideration, and must be a conswhich militatein
favour of not joining the Counter-Clabut leaving the United States to file a separate
Application should it deemappropriate.
34. In the light of the abitis lran's principal position that the United States' Counter
Claim should not be joined in this Case. To the extent the Countepresented by the
United States takes the form of an unspecified allegation that Iran violated the freedom of
navigation and commerchetween theIwo,\'talethere is neither factual connection nor legal
link between any such al1eged general violationspecifie attacks on Iranian oil platforms
which arethe sole subject-matter of the present case. Nor, for the reasons stated above, is
there any legalfactual connection of a direct;character between the seven incidents on which
the United States specifically relies and the attacks on the platforms. Even on the facts as
presentedbythe United States, in only one èase, that oTexaco Carihhean, does any
'
paragraph of Article X provide a basis on which the legality of the Applicant's alleged conduct
might be evaluated. However, even in that case, the vesse! was not U.S.-flagged and there is
no elementf a legal or factual connection with the later attacks on the platforms.
25
See, in general, the correspondcncc bctween the Parties :lltachcd to the leuer of the Agent of the
lslamic Republic of Iran to the Registra r datcd 2 October 1997. l')
35_ ln conclusion, it should be slressed that in the present case Iran has proceeded to
formulate its claim in a deliberately limited way_The Aprlicant State has not sought to bring
before the Court ali of its legal comrlaints as ta the conduct of the United States in the Persian
Gulf during the periad of the 1ran-IraqWéH, but only the specifie attacks on commercial ail
p!atforms. ln response - and dcspitc the fact that the Cour1 in its Judgment of 12 Decernber
1996 still further limited the legal grounforevalu<ltÎngthe conduct of the Parties in relation
to the attackson the platforms - the United States has now sought to broadcn the case before
the Court out of recognition. It has done so by a wide and unspecified counter-claim which
calls into issuein a generalised way the conduct of In~ during a defensive war. (This was,
moreovcr. a w<~ during which. in lran's vicw. the United St<llesgave support and comfort,
directly and indirectly. 10 the aggressor) Such a selective broadening of the issues is
1 unw;ttTancd ;md goes weil hcyond the senpc of cou ntcr-daims as carcfu!!ydclimit cd in riclc
80 of1he Rules. 1fthe Unitcd S aics wishcs to have 1he Cour1 adjudicate in the broadcst tcrms
on the legalityf the Parties' conduct during this war, then it is for it to commence proceedings
on that basis,or at least to enter into negotiations over such issues, somethinithas to date
refused todo_The carefully lirnited dispute which Iran has brought before the Court, the legal
grounds of the appreciation of which the Court bas still further lîmited in its Judgment of. 12
Decernber 1996, would bedenatured if'the United States' Counter-Clairn wasjoined_ TheCase
would, in effect, be conver1ed into a new and ditferent dispute, one essentially unrelated to the
attacks on the ail platforms.
36_ In the light of the above, the lslamic Republic of Iran hereby requests a hearing
pursuant to Article "80, paragraph 3, of the Rules of Court in arder to allow the Court to
determine whether or not the United StatesCounter~C sloalimbe joined to this Case.
Respectfully submitt by
Agent of the Islamic Republic of Iran
Request of Iran for Hearing in Relation to the United States' Counter-claim Pursuant to Article 80 (3) of the Rules of Court