CASE CONCERNING OIL PLATFORMS
(Islamic Republic of Iran v. United States of America)
RESPONSE TO THE ISLAMIC REPUBLIC OF IRAN TO THE QUESTIONS OF
JUDGE RIGAUX ADDRESSED TO BOTH PARTIES
FIRST QUESTION:
"What is the legal status of oil platforms constructed by aState on its continental shelf!
What types of jurisdiction are exercised over such installations? How does the status of
oil platforms vary depending on whether they are situated within a State's territorial
sea or outside it?"
The legal status of oil platforms is regulated by the proviSions of the United Nations
Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, United
Nations Treaty Series, voL 1833 p. 3. The lslamic Republic oflran is a signatory ta the 1982
Convention, but has not yet ratifiedit. However, the provisions of the Convention relating to
installations within the Exclusive Economie Zone and continental shelf may be accepted as
reflectiveof general international law on the matters dealt with. Iran possesses continental
shelf rights and bas proclaimed an Exclusive Economie Zone over the area where each of the
platforrns is located. Article4 of lran's Act on its Marine Areas of 20 April 1993 reiterates
the principles set forth in the Convention in this regard.
Under international law, a coastal State has sovereignty over the seabed, water column and
superjacent airspace within its territorial sea. This sovereignty extends to installations such as
oil platforrns located on the seabedf the territorial sea.
Within the continental shelf and exclusive economie zone, the coastal State bas sovereign
rights for the purpose of exploring and exploiting the natural resources situated therein
(Articles 56(l)(a) and 77(1) of the 1982 Convention) and thus has exclusive jurisdiction to
license and to control the operation of ail platforrns. This exclusive jurisdiction is clearly
recognized in Articles 56 and60 of the 1982 Convention (see also Article 80, which appliesArticle 60 mutatis mutandis ta installations and structures on the continental shelf). In
accordance with Article 60(2) of the Convention, the exclusive jurisdiction includes
'1urisdiction with regard to customs, fiscal, health, safety and immigration laws and
regulations." But it is not limited to these matters: itextends, for example, to caver general
civil and criminal jurisdiction with respect to events occurring on oil platforrns. The coastal
State may also take measures necessary for the protection of its oil platforms and the
personnel present on the platfonns. ln particular, it may position defensive military
equipment and post military security personnel on the platforms for that purpose.
Neither within the territorial sea nor the Exclusive Economie Zone do ail platforms and other
installations and structures equate to islands, and they do not generate a territorial seaof their
own. The coastal State is however entilied to establish reasonable safety zones around such
installations and structures (Article 60(4) of the 1982 Convention).
The purpose of oil platfonns is ta exploit the non-living resources of the Exclusive Economie
Zone and continental shelf. These resources fait exclusively within the sovereign jurisdiction
and control of the coastal State, and that State's authority over its ail platforrns is sovereign
authority which is shared with no other State.
An attack on installations situated on Iran's continental shelf and within its Exclusive
Economie Zone constitutes an attack on installations engaged in the commercial production
of petroleum resources over which Iran l,as sovereign rights.
In lran's view, the United States' attack on the oil platforms, located on Iran's continental
shelf, impaired the freedom of commerce in ail between the territories of the High
Contracting Parties. It will be recalled that, after initial processing on the platforms, the oil
extracted was conveyed to nearly lranian islands for further processing, after which it was
exported (and susceptible to be exported) inter alia to the United States. The Court has
already recognized that this oil formed part oflran's export trade in oil and was protected by
Article X, paragraph 1, of the Treaty. See l.C.J. Reports 1996 at pp. 819-820 (paras. 50-51).
2~---
..
SECOND QUESTION
"During the war between Iran and Iraq was Kuwait a neutral state, a non-belligerent
state, or a co-belligerent state with Iraq? Would the r~spon to ethis question be
different depending on whether it was given during the war or today, bearing in mind
the additional information now available?"
In its contemporary communications with the Security Council, Kuwait described itself as
"not being a party to" the war between Iran and Iraq (see. e.g. S/19872, 9 May 1988).
However, it is clear that Kuwait massively supported Iraq in its war of aggression against
Iran and did not respect the obligationsf abstention and impartiality, which are incumbent
upon neutra! States. Iran has detailed aspects Kuwait's support for Iraq in bath its written
pleadings and in its ail pleadings (see, for example, Iran's Reply, paras. 2.12-2.26; Iran's
Further Response, paras. 3.23-3.27; and CR 2003/5, pp. 49-50). Kuwait's violations of the
\aws of neutrality included inter alia financing the lraqi war effort, opening up its ports to
allow transshipment of war material to Iraq, and assisting Iraq in its attacks against Iran by
allowing the use of its territorial waters, islands and, in particular, its airspace. Senior U.S.
officiais recognized at the time that Kuwait was defacto Iraq's ally (Iran's Memorial, Exhibit
51).
During the conflict, Iran knew and always claimed that Kuwait was indeed massively
supporting Iraq. After the conflict, the extent of this support has become clear beyond
reaso.nab1e doubt. Kuwait has repeated1y asked Iran's forgiveness for its support for 1raq (see,
Iran's Reply, Exhibit 13). In additior, the Emir of Kuwait expressed his regret at the
resolutions adopted by the Gulf Cooperation Council during the conflict, severa! of which
were unfavourable to Iran. He noted that these resolutions had been passed "sous 1'influence
pernicieuse de l'Irak'' (Ibid.). Kuwait's own admission and apology has thus laid any doubt
to rest.
The expression "non-belligerency" may be used to describe the situation of Kuwait. In the
historyof the law of war and neutrality, the expression .has been used to describe a
3situation where a State has violated the rules of neutrality by supporting one party to the
conflict while at the same time claiming not to be a party to that conflict. But international
law does not confer any specifie status or rights upon a "non-belligerent". A State is either a
party to a conflict or itis not. In the latter case, it is bound to observe the law of neutrality,
subject to a decision of the Security Cm•TJ.ciw l hich is not relevant in the present case.
Even if the support given to Iraq did not entait Kuwait becoming a party to the conflict, it
constituted a violation of the law of neutrality. In addition, however, the extent and nature
of this support meant that Kuwait participated in lraq's aggression. It was also an unlawful
act on that account, and was a serious violation of the Charter of the United Nations and of
iuscogens, which prohibit the use of force.
4' QUESTIONS DU JUGE RJGAUX ADRESSÉES AUX DEUX PARTIES
Première question: quel est le statut juridique de plates-fonnes pétrolières
aménagéespar W1 Etat sur son plateau continental? Quelles som les compétences
exercées sur ces instalhuions? Quelle est la différenceentre le statut des plates-formes
pétrolières selon qu'elles sont localisées respectivement dans la mer territoriale d'WlEtat
ou en dehors de celle-ci?
Am;wer;
1. International law draws a clear distinction between a coastal State's territory,
including its tenitorial sea, over which it enjoys sovereignty, and its continental shelf,
over which it enjoys certain, expressly enumerated sovereign rights. Article 2(1) of the
1982 UN Convention on the Law ofthe Sea ("LOS Convention"}, which reflect
customary international law, provides:
"The sovereignty of a coastal State extends, beyond its land terrirory and internai
waters and, in the case of an archipel agie State, its archipelagic waters, to an
adjacent belr of sea, described as the territorial sea" (emphasis added).
2. A coastal State's coutinental shelfhas a different legal status. Customary international
law, as reflected in Article 76(1} of the LOS Convention, provides that the continental
shelf of a coastal State:
"comprises the sea-bed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer
edge of the continental margin, orto a distance of200 nautical miles from the
baselines from which the bread th of the territorial sca is measured where the outer --------------------------
2
edge of the continental margin does not extend up to that distance" (emphasis
added).
(See a/so Article l(a) of the 1958 Convention on the Continental Shelf, which refers ta
the conrioental shelf as "adjacent ta the coast but outside the area of the territorial sea.")
3. Customary inter_nationallaw. as reflected in Article 77(1) of the LOS Convention,
provides thar the coastal State:
"exercises over the continental shelf sovereign rights for the purpose of exploring
itand exploiting its natural resources'' (emphasis added).
(See also Article 2(1) ofthe 1958 Convention on the Continental Shelf, which is identical
to Article 77(1} of the LOS Convention. This language first appeared as Article 68 of the
articles concerning the law of the sea, as adopted in 1956 by theInternational Law
Commission. (Yearbook of the Imemational Law Commission 1956, Vol. II,
NCN.4/SER.A/1956/Add.1, p. 264.))
4. Sovereign rights over the continental shelf are not the equivalent of sovereignry. As
the International Law Commission explained in the 1956 Conunentary ta Article 68 of
the articles conceming the law of the sea:
..The Commission desired to avoid language lending itselfto interpretations alien
to an object which the Commission considers ta be of decisive importance,
namely the safeguardipg of the principle of the full freedom of the supetjacent sea
and the air spaceaboveir. Renee itwas unwilling ta accept the soverdgnty of the
coastal State over the seabed and subsoil of the continental shelf." 3
(Ibid.•pp. 253, 297)
5. Further. the sovereign rights eriwnerated with rëspect ta the continental shelf are for a
limited purpose (i.e.,thatof exploring the continental shelf and exploiting its natural
resources).
6. Moreover. under international law, the exercise ofenumerated sovereign rights over
the continental shelf is expressly limited, for example, by the principle that the exercise
of the rights of the coastal State over the continental shelf must not infringe or result in
any unjustifiable interference with navigation and other rights and freedoms of other
States as provided under international law. (See .A.rticle78 (2) of the LOS Convention,
which reflects customary international law on this point.)
7. With respect ta ail platforms inpa.rticular,whereas acoastal State enjoys sovereignty
over such platforms in its territorial sea, a coastal Sr.ate'srights wirh respect ta such
platfonns not in itsterrirory, but rather on its continental she1f, are limited in various
ways. For example, coastal States are oblîged under international law ta give due notice
of the construction of such platfom1s and maintain pennanent means for giving waming
of their presence. Where such platfonns are abandoned or disused, international law
provides that coastal States shaH remove them or give appropriate publicity ta the depth,
position, and dimensions of any structures not entirely removed. Such removal shall also
have due regard ta fishing, the protection of the marine environment and the rights and ..
4
duties of other States: This customary international law is reflected in Articles 60,
paragraph 3, and Article 80 of the LOS Convention..,
QUESTIONS DU JUGERlCAUX ADRESSÉES AUX DEUX PARTIES
Deuxièmequestion: selon les Parties, durant la guerre entre l'Iran et l'Iraq, le
Koweït était-il un Etat neutre. un Etat non-belligérant ou un Etat cobelliderl'Iraq?
La réponse à cette question serait-elle différente, q~'en lilétéformulee
durant [a guerre eUe-mêmeou aujourd'hui, compte tenu du complément d'informations
dont on dispose?
Answer:
1. At ali times during the Iran-Iraq War, Kuwait was a neutral, non-belligerent State. At
no tîrne during the Iran-Iraq War was it a co-belligerent State with haq. The artached
Diplomatie Note from the Ministry ofForeign Affairsof the State ofKuwait to the
..
Embassy of the United States of America. dated March 16, 2003, confinns this status.
2. As is stated in the attached Diplomatie Note, Kuwait's status as a neutra], non-
belligeretlt State at ali times during the lran-Jraq War does not change depending on
whether one considers the question in terms of rheinformation available at time or
also taking into account additional information available at present. The information
avaîlable at the time of the Iran-Iraq W<Jrand subsequently suppons the conclusion that,
as the Minisny of foreign Affairs ofKuwait stated in the Diplomatie Note, "[t]he State of
Kuwait remained completely neutra!".~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - - ~ - - - ----- -
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U.S. DEPARTMENT OF STATE
OFFICE OF LANGUAGE SERVICES
Translating Division
LS No. VFD 03 2003 0133
Arabie
SK
In the Name of Gad, the Mercifui, the Compassionate
[Emblem of the State of Kuwait]
Ministry of Foreign Affairs
Americas Department
TO: Embassy of theUnited States of America
Kuwait
03/16/2003
The Ministry of Foreign Affairs ofthe State ofKuwait extends its warmest greetings to the
Embassy of the United States of America in the State of Kuwait.
The Ministry of Foreign A.ffairsof the Statc:ofKuwait wishes to note rhat the State of
Kuwait was not a pany to t11eIraq-Iran War throughout its dtrration, between 1980 and
1988. The Srate ofKuwait remained completely neutral and did not side with either of the
parties involved in rhat war.
The State ofKuwait must be considered a neutra! state. The neutrality of the Srate of
Kuwait is based on information that was widely known during the Iraq-Iran war and on
information that is available at the present time.
The Ministry of Foreign Affairs avails itself of this opporrunitexpress its utmost
appreciation and csteem ta the distinguished Embassy [ofthe United States of America].
[i1legible signature]
[Round, imprint seal ofthe Ministry of Foreign Affairs, State ofKuwait]
LS No, 03-2003-0133/SK QUESTIONS PUTBY JVDGE AL~KRASAWN TETHEUN!TED STATES OF AMERICA
Fîrst Question: In the opinion of counsel of the United States, are the concepts of
lex specialis, on the one band,self~con é gmens,dn the ether, synonymous? If
not, what are the differences between them? This question is of course in relation to the
1955 Treaty.
Answer:
1. In his statement ofFebrua26, 2003 (CR 2003/12, pp. 18-19, para. 17.20) Professer
Weil stat.ed that Article XX of the Treaty of 1955 between the United States and Iran is a
lex specialis within chemeaning of Article 55 of the 2001 International Law
Commission's Draft Articles on State Responsibiliry. Counsel for the United States
referred in this respect to the Comrnission's Commentaries, according ta which this
provision ''makes it clear... that the articles [of the draft] have a resisaal character",
much sa that "(w]here sorne matter otherwise dealt with in the anicles is govemed by a
special rule of international law, the latter will prevaîl to the extent of any inconsistency"
(lntroductory remark.s to Part IV of the Draft, pp. 355·6J.Crawford, The
lnternaciona/ Law Commission ·sArticles on State Responsibiliry, 2002, p. 306). No
disagreement appearstoexist berween the Parties sIranexplicitly states in its written
pleadings that "[a)s a /ex specialis in the relations between the two countries, the Treaty
supersedes thelex generalis, namely customary international law."
2. Counsel for the United S.tates did not rely on the concept of self.contained regime, but
rather on the concept of lex specia/is of Article 55 of the ILC's Draft, ofwhich, so the
Commission said, the concept of self-contained regime is givcn as an example of "the
strong fonn"- an example of the ..weaker fonn" being ''specifie treacy provisions on a 2
single point" (para. 5 of the commentary on Article 55). While the concepts of self-
-·
contained regime and lex specialis are not synonymous, they are closely related. A self-
contained regime is a parricular fonn of lex specialis; a lex specialis, however, is not
necessarilya self-contained regime. The decisive issue in the instant case is whether
Article XX of the 1955 Treary is a lex specialis, which as such supersedes the provisions
of the othenvise applicable customary mles as may be expressed in the Commission's
Draft;itis not whether Article XX creates a self-contained regime. In ether words, for the
purpose of the instant case it suffices to note that Article XX of the 1955 Treaty is a /ex
specialis wirhin themeaning of Article55 ofthe ILC's Draft, without there beingany
need to determine whetber itgives rise to a se1f-contained regime. This is all the more so
in thar the very concept of self-contained regime, recognized as it was by the Court in the
Hosrages case, has beee disputed- and sometimes even put into question- within the
111
International Law Commission itself(see, e.g., 4 Report by G. Arangio-Ruiz, Yearbook
ofrhe lmernational Law Commission, 1992, vol. Il, PartI, paras. 97 and ff.) and in the
literature. Professer (now Judge) BSimma- who clearly regards self-contained regimes
as leges speciales (Self-Comained Regimes, in Nerherlands Yearbook of International
Law.• vol. XVI (1985), pp. Ill and ff.,at p. 135)- points to the "high degree of
abstraction with which the tapie bas been discussed .. within the Commission and "the
resulting confusion penneating this debate" (p.118).
3. It may be added that the concept of lex specîalis is an application of the well-known
'
and well-established principle of interpretatac~ord ian gich specia/ia generalibus
derogant. As the Commission's commentary on Article 55 states, the question is one of
interpretation, and ..[i)t will depend on the special rule to establish the extem ta which theil 3
mo ren~eral ruies on State responsibility ser out in rhe present articles are dbypla.ced
that rule(op. cil.p. 357, para. 3). Counsel for the United States bas put forth such an
interpretation when be argued. rhat the concept of''measures ... necessary to protéct [a
Party's] essential security inrerests" referred to in Article XX of the 1955 Treaty provides
the basis for the Cowt' s revîew of the claims in the current case. (CR 2003/12,
paras.17.21 and fi.)
4. Likewise, D. Bodansky and J.R. Crack write in their article Symposium: TheJLC's
State Responsibility Articles: Introduction and Overview that
It should be borne in mind... that although the articles are general in coverage,
they represent only default or residual rules; they do not necessarily apply in all
cases.Particular treaty regimes or mies of customary international law can
establish their own special rules ofresponsibilitthat.differ from those set forth
in the articles (American Journal of /nlernaiiona/ Law, voL 96 (2002). pp. 773
and ff., ap.780).
5. It should be added that, as Mr. (now Judge) Al·Khasawneh pointed out in his capacity
as a member of the International Law.Commission, "(t]he tendency in the field ofState
responsibîlity was to establish different regimes for the various types ofresponsibility",
because "[s]uch compartmentalization would bring greater precision and clarity into the
rules goveming instrumental 'consequences.... " (Summary Records of the Meetings of
1
the 44 hSession. Yearbook of theJmernarional Law Commission, 1992, voL 1,pp.159-
60). 4
·•
6. Inconclusion, to determithescope and effect of ArtXXleof th19S5 Treaty
there is no need to detennineher itcreates, or not, a self-contained regime. Even if,
as Professer Cr~wf aourd,d''theTreaty of Amity is not a self-contained regime" but
"a normal bilateral treaty govemed by intemational law" (CR 2003/16, p. 12, para 6), it is
indisputably a /ex specia/is which applies in the instant case. ' .
1QUESfiONS PUTBYJUDGEAL-Kl!AsAWNEHTOTIIEUNITED STATESOFAMERICA
· Second question: ln his statement, provided by the United States and contained at
tab C9 ofthejudges' folders. General Crist explained the reason why a choice was made
to attack the ail platfonns as follows: "Iran could not have attacked U.S. ships without
using theoilplatforms as theyhad no ether offshore means to maintain continuottS
s~eil lver hectrensit routes, ether than on Farsi Island." Why did the United
States choose the platforms and not the means of surveillance located on Farsi Island?
Answer:
1. The criteriatheUnited States considered in selecting targets for military action
are described in the Statements of General George Crist (U.S. E:xhibit Rear Admirai
Harold Bemsen (U.S. Exhibit 43), and Vice Admirai Anthony Less (U.S. Exhibit 48).
TI1esecriteria included the following: the need to degrade Iran's ability to attack U.S.
vessels transiting the Gulthedesire toavoid direct involvementin the Iran-Iraq war and
to maintain the status of the United States as a neutral; the desire ta minimize the risk of
casualties to U.S. and Iranian anned forces; and the desire to minimize the risk of
casualties to civilians.
2. As explained in the attached Statement ofRear Admirai Bernsen, dated March 13,
2003, Farsi Island was a far less suitable target th.anIran's offshore platfonns according
to these criteria.
3. First, taking action against Parsi Island would have done less to degrades
1
abilitta attack U.S. shippinthan would action against the platforms. Because Farsi
Islandwas nor within visual range of the shipping channel U.S. ships followed through
the Gulf, and provided a much lower vamage point than Iran's offshore oil platfonit,provided a less effective surveillance point than dld the plaüonns. That Farsi Island
posed less of a threat to shipping than did the platfonns is also reflected in the fact that
more lranian attacks on shipping took place within radar range ofhan's platforms than
took place within radar range ofFarsi Island.
4. Second, because Farsi Island was Iranian land territory and was within Iran's
declared wartime exdusion zone, targeting it could have been perceived as a more
serious escalation of tension with Iran than targeting Iran's offshore oit platfonns, and
could have given rise to questions whether the United States intended to remain neurral in
the Iran-Iraq War. The importance ofthese factors was indicated by the decision of the
U.S. military's National Conunand Authority that no facilities on Iranian land territory
were to be considered as targets for the U.S. defensive action.
5. Thircl, targeting Farsi Island would have created a more serious risk ofcasualties
to bath U.S. and lranianpersoJUlel. The United States believed that Farsi Island was
defended with mines, which would have posed danger to ships sailing near it. To avoîd
the risks to U.S. forces posed by such mines, any miliŒry action against Farsi Island
would have necded to be taken from the air. Sucb an action still would have posed risks
to U.S. forces from ami-aircraft defenses on Parsi Island. Action from the air would also
entail usingless precise weapons than those that could be usedfromcloser pro,Omity OQ
the ground. This would necessarily entai! a greater risk of casualties to lranian personnel.
By contrast, action against the platfonns could be taken from close range, and in a 3
manner allowing advance waming to personnellocated on the platforms, thus creating
1
!
minimal risk of casualties to Iranian persormel.'.
Statcment-GfReeA r dmital·Harold J.Bernsen,13March,2003) .f
STATEMENTOF
BEARADMJllAL BAROLD 'BE~SEN U,.S. NAVY (BETIRED)
_\
1.1,HaroldBemsen.retired fromtheU.SNavy with therank-ofRear Admirain
Decc::mbe1r991.During theperiod:June1986to~h 19981'commanded theU;S.
Na.vy,sMiddle EaàtForce,Wh1çh operatŒinandaroundtheAtilbian(Persiun)Ou1f.
2.1undentand thaaquestion basamenconceming the reason"y,-htheU:aitcd
Stateschosetdattac:kthe platformsandnotthe meansof SUlVeillaocatedonFarsî
Island...Patagraphsand 25of my statemeutdated26May 1997,whicb was
attachelo thU.S.Counter-Memorial and Counter-Claim.aExlu'bit43.provick:
infonnationrelevato theUnitedStatesdecisionto targIran o~fshoreoil
platfanns.Thissta:temetrovidesadditionalinformatiregardingwby the:United
Statedecided11o totargetFam hhmd:TheΠwereseveralreasonsfothisdecision.
3.First,Fa.rihmdswas lranianlandtenitory. TNationalCommandAuthority
directedhatnodefensive militmyoperationwouldbe'lsunrihedagainstIranianland
territocy.ThisdecisionreflecBdesireto avoideso1llatmmccessarilythetense
situationbctwceIranand theUnitedStatesandto avoidanypossible undermining
ofthe ueuttastatuof thUnited States.
4. Futther,riskofboth U.S. andlraniancasualwasmuch.greate:inan attackon.a
grmmdtargetsuch asFarsiIsland.Theisla s.dc~tioninsideIranswartime
exclusionzon urroundedby sballowwater wlùch·wa.serylikely!l'li.,osed
riskstoU .S.forcesapproachingthe islandfromthe sThm wauldbave diclt4cdthe
useof mcraft ratherthan surfaceshipsfarattacktbougnthis~11woutdbave
involvedsornerisktoU.S. forcesbeŒuselran maintainedanti-aircdefenseaon
ParsiIsland.Moreovertakingactionfromthe aiwauld baveentàiledtheuseof
bombs, lc=ssrecisewcaponsfbancouldbeemployedfromthe ground and
coŒequentlywould bave involved incteasriskofcasuakiestoIran{anmilituy
personnelon thesround.Thisrisk woulhave beenparticularlyacubeŒuse
warning thepersonnelontheislandinadvaoŒ ofanatùld:would ~ beendifficult.
Since:-thIraniansdidnot.m.a.insuffioienwatercraftatFmsiisland1o
accomm.odaie thepersonnelbased.theŒ,enauringthe~cwtio o ndsafetywoW.d
have beeovirtnallimp-ossible.
5.Andfi.nally,Fmi Islandclidnotpresentgreaa tbt~ toU.S. shippingttallSiting
theGulf asIransoffshoreoilplatformsdidU Dliktheplatfotm..whichwere
locared within bra.dAand visual range of the shipping channU~Sdsb.ips
ft)llowed through GulfFsrsi~\l netwithin visualrange Q{tshippiugchannel,
tberebyinhibitingitsusefulnessas aswveill.ancepoint.Farsiü;a low-lyin.g
landm..eon1ytlaee met:eabovesca lCYelln contrast,theplatfanns offarnuch
higherposition,approxirnat35ymeters.onwhichto mOUDa t~a. drfrmwbich to
obsc:r.visuallyvesscls intshippinchannel.TheWlObstru.cŒd.view-ofthcshippingchannelfromthe platfOIII! asdearly superimtothatwhicheould be
achievcdfromFarsi Island,
[declare underpenaltyofpeljury under1belawao!the Uuit:e~ of America
t1mttheforegoingist:Nea.w.cionect. THE LEGAL AOVISER
DEPAATM6NT 0~ STAlE
WASHJNGTON
March 27, 2003
Sir,
With reference to your letter numbered 115994 of
March 18, ~ransmitting Iran's responses to the
questions put by Judge ad hoc Rigaux to beth Parties
at the end of the oral proceedings in the case
concerning the Oil Platforms {Islamic Republic of Iran
v. United States of America), I have the hanoi' co
enclose the comments of the United S~ates on Ir.an's
responses.
Accept, Sir, the assurances of my highest
consideration.
#~ ll'.?.p ~
William H. Taft, IV
Agent of the United States
of America
Enclosure;
As stated.
Mr. Philippe Couvx:·eur,
Registrar,
International Court of Justice,
Peace Palace,
The Hague. COMMENTS OF THE UNITED STATES ON IRAN'S REPL Y TO THE
QUESTIONS PUT BY JUDGE R.iGAUX TO BOTH PARTIES
Premièrequestion: quel est le statut juridique de plates-formes pétrolièresaménagées par
un Etat sur son plateau continental? Quelles sont les compétencesexercées sur ces installations?
Quelle est la différenceentre le statut des plates-formes pétrolièresselon qu'elles sont localisées
respectivement dans la mer territoriale d'un Etat ou en dehors de celle-ci?
Comments on Iran's Reply:
1. The responses to this question provided by both parties demonstrate that the oil platforms at
issue in this case, which are located on Iran's continental shelfand outside oflran's territorial 1
sea, are not located within Iranian territory, as understood under international law, as reflected in
the 1982 United Nations Convention on the Law ofthe Sea. Article X, paragraph one, ofthe
1955 Treaty is concemed solely with commerce and navigation between the "territories" oflran
and the United States.
2. Inparagraphs 2 and 3 ofits reply, Iran specifically recognized the distinction in international
law between a coastal State's territory, including its territorial sea, over which it enjoys
sovereignty, and its continental shelf, over which it enjoys certain, expressly enumerated
sovereign rights. While not challenging that central distinction, Iran continued to describe its
views about the scope of the rights accorded under international law to a coastal State for the
purpose of exploring and exploiting the natural resources of the continental shelf. The United
States of America reserves its position with respect to that description, as the precise delineation 2
of those rights does not touch upon the fundamental distinction in international law between a
State's territory and its continental shelf.
3. With respect to Iran's assertions inparagraphs 6 and 7 ofits reply, the United States has
shown that U.S. actions against lran's oil platfonns were not directed against installations that
were engaged in relevant "commerce" (see CR 2003/11, paras. 15.1-16.25 and CR 2003/17,
paras. 25.1-25.34).
4. Contrary to Iran's assertion in paragraph 7 of its reply, the Court did not determine in its 1996
Judgment that the oil extracted from these oil platforms was in fact a part oflran 's export trade
to the United States, and did not determine that the oil platfonns were in fact protected by Article
X, paragraph one, ofthe 1955 Treaty. Indeed, in one ofthe paragraphs cited by Iran, the Court
expressly stated that "[o]n the material now before the Court, itis îndeed not able to determine if
and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade
in Iranian oil;.... " I.C.J. Reports 1996 at p. 820 (para. 51). COMMENTS OF THE UNITED STATES ON IRAN'S REPL Y TO THE
QUESTIONS PUT BY]UDGE RIGAUX TO BOTH PARTIES
Deuxième question: selon les Parties, durant la guerre entre l'Iran et l'Iraq, le Koweït
était-ilun Etat neutre, un Etat non-belligérant ou un Etat cobelligérantde l'Iraq?
La réponse àcette question serait-elle différente,selon qu'elle ait étéfonnuléedurant la
guerre elle-mêmeou aujourd'hui, compte tenu du complémentd'infonnations dont on dispose?
Comments on Iran's Reply:
1. The response of the United States to this question stated that at ali times during the Iran-Iraq
War, Kuwait was a neutra!, non-belligerent State. Notwithstanding lran's earlier pleadings (see
CR 2003/13, paras. 21.36-21.39), its response to this sarne question now concedes that Kuwait
was not a belligerent.
2. Iran now appears to assert only that Kuwait violated its obligations as a neutral. We note that
the Diplomatie Note from the Ministry of Foreign Affairs of the State ofKuwait, submitted to
the Court with the U.S. answers on March 17, 2002, states: "The State ofKuwait remained
completely neutra! and did not side with either of the parties involved in that war." In any case,
Iran no longer asserts that such alleged violations would have given it any right to use force
against Kuwaiti flag vessels, let alone against vesselsof other neutral countries trading with
Kuwait (or other Gulf states). During the oral pleadings, Iran seems to have confinned that its
view is now that attacks on such vessels would be unlawful, notwithstanding the alleged
violations ofthe duties ofneutrality (CR 2003/15, p. 54, para. 3). 2
3. Accordingly, lran's allegation that Kuwait violated its duties ofneutrality is simply irrelevant
to this case. Even iftrue, it would not provide any legal excuse for Iranian attacks on U.S. or
other neutral vessels in the Gulf. It would not in any way diminish the right of the United States
under Article XX of the 1955 Treaty to protect its essential security interests or itsright of self-
defense. It would not affect the validity of the U.S. Counter-Claim.
4. The United States reserves its position with respect to the other legal contentions advanced by
Iran in its reply, which need not be addressed in connection with this case. AGENTOF Tl--fE GOVERNMENT OF THEISLAMICREPUBUCOF IRAN
The Hague
IN THE NAME OF GOD
No: 34704
28 March 2003
8 Farvardin 1382
Sir,
I have the honour to refer to your letter dated 18 March 2003 and transmit
herewith the comments of the Islamic Republic of Iran on the United States' answers
to the questions putto the Parties by Judge Al-Kbasawneh and Judge ad hoc Rigaux at
the public sitting of 7 March 2003 in the case concerning Oil Platforrns (lslamic
Republic of Iran v. United States of America.
Accept, Sir, the assurance of highest consideration,
M. H. Zahedin-Labbaf .Ei'
Agent of the Islamic Republic
of Iran before the International
Court of Justice
H. E. Mr. Philippe Couvreur
Registrar
International Court of Justice
Peace Palace
The Hague CASE CONCERNING OIL PLATFORMS
(lslamic Republic oflran v. United States of America)
COMMENTS OF THE ISLAMIC REPUBLIC OF IRAN ON THE REPLIES
OF THE UNITED STATES OF AMERICA TO THE QUESTIONS PUT
BY JUDGE AL-KHASA WNEH AND JUDGE AD HOC RIGAUX
FIRST QUESTION OF JUDGE AL-KHASAWNEH TO THE UNITED STATES OF
AMERICA:
"In the opinion of counscl of the United States, arc the concepts of lex specialis, on the
one band, and setf-contained régimes, on the other, synonymousIfnot, what are the
differences between them? This question is of course in relation to the 1955 Trcaty."
Iran's position on this question was set out in oral argument: see CR 2003/16, 3 March 2003,
3 p.m. at pp. 11-13 (Professer Crawford). Nothing said by the United States in its reply ta
Judge AI-Khasawneh's question requires any modification whatever to the position already set
out. Iran would only make three points asto the United States' reply.
First, it notes that the United States does not now argue that the Treaty of"self~ is a
contained régime". That term was in fact used by Professor Weil in the United States' first
round presentation: CR 2003/12, p. 18, para. 17.20. But whatever difficulties attend the notion
of a "self~con réaiin"edt is quite clear that it has nothing ta do with the present case.
The Treaty of Amity is a normal bilateral treaty to be interpreted and applied in accordance
with international law.
Secondly, white it is truc that the Treaty of Alex specialithat is to say, it confers a
specifie set of rights and imposes a specifie set of obligations on the parties in their bilateral
relations-no special significance attaches ta this in the present case. The question whether a
bilateral treaty is a lex specia~ifor example vis~à~ svresother treaty or general
international la~has significance where there is sorne potential inconsistency between the
bilateral treaty and the other rule in question. The matter is "essentially one of interpretation'',
as the International Lawmmission- pohted out in para. (4) of its commentary ta Article 55
of the ILC Articles on Responsibility of States for lnternationa!ly Wrongful Acts, annexed to - 2-
GA Resolution 56.83, 12 December 2001. And it is international law which provides the
interpretative matrix for treatiessuch as the Treaty of Amity. lran refers again to the approach
taken by the Iran-United States Claims Tribunal in cases such as Amoco International
Finance, where the Tribunal, having affirmed that the Treaty of Amity isa lex specialis, went
on to say in the very same paragraph that "the rules of customary law may be useful in order to
fiJI in possible lacunae ofthe Treaty, to ascertain the meaning ofundefined tenns in its text or,
more genera tly, to aid interpretation and implementation of its provisions" (( 1987) 15 Iran-US
CTR 189 at p. 222, para. 112). In the present case the Court's jurisd iction arises under the
Treaty of Amity, speci fically in relation ta Article X, paragraph l, but the Court can apply
international law in interpreting and applying the Treaty. lndecd the Parties appear to agree on
this.
Where they do not agree- and this is Iran's third point- is on the implications of this position,
especially as conccrns the interpretation of Article XX (l)(d). For Iran, the "essential security"
clause cannat, or at !east should not, be applied so as to legitimize or render lawful under the
Treaty conduct which is contrary to a perem'ptory norm of general international law, i.e.,
conduct involving the use of force in international relations which goes mani fest!y beyond the
bounds of self-defence. The Parties to the Treaty of Amity did not intend to allow one Party,
under caver of Article XX (l)(d)- ta take military action contrary to the express terms of the
Treaty in circumstances which "cannat p<1ssib!y''be justified on the grounds of se]f..defence.
This is a straightforward point of interpretation which the United States, for ali its use of Latin
phrases, has nevcr faced. Agaîn it is referred to in para. (2) of the ILC's commentary ~o
Article 55: "States cannat, even as between themselves, providc for legal consequences of a
breach of their mutual obligations which would authorize acts contrary to peremptory norms
of general international law." Yet that is what the United States' reliance on Article XX (l)(d)
would do in the present case. - 3 -
r
SECOND QUESTION OF JUDGE AL-KHASAWNEH TO THE UNITED STATES OF
AMERICA:
"ln his statcment, providcd by the United States and contained at tab C9 of the judgcs'
folders, General Crist explaincd the reason why a choice was made to attack the oil
platforms as follows: •Iran could not have attacked U.S. ships without using the oil
platforms as they bad no othcr offshore mcans to maintain continuous surveillance over
the transit routes, other than on Farsi Island'. Why did the United States choose the
platforms and not the mcans of surveillance located on Farsi Island?"
The question refers to General Crist'sstatement that Iran had no offshore means other than the
ail platfonns "ta maîntain continuous surveillance over the transit routes, other than on Parsi
Island".
In arder to comment on the United States'answer to the question, it is necessary first to point
out that General Crist's statement is itself inaccurate. As Iran has shawn, lranian military
forces possessed communications facilities and radarsal.onglran's coastline and on its islands,
and such facilities could caver the whole of the Persian Gulf (sec Statement of
Mr. Mokhlessian, Iran's Reply, Vol. VI). In particular, lran's coastline and islands were
equipped with various alert radars with long distance stand-by performance, which could
detect and track any vesse! movement in the Persîan Gulf. Other radar equipment and
e!ectronic detection systems were installedin aircraft and on warships. These facts have not
been disputed by the United States.
Confirmation of the fact that lranian islands other tbari Farsi Island were equipped with radar
may be found in the United States'own Exhibits. Thus, Exhibit 114to the Counter-Memorial
mentions radar posts on Larak, Abu Musa, Hengam, Sirrik and Sirri Islands in the First Naval
Districtalone. In addition, Iran had placed radar facilities on the islands of Tonb, Qeshm and
Kharg.
As regards the choice of the ail p!atformsas a target for'U.S.action, rather than Farsi Island or
indeed any other radar facilities possessed by Iran, the United States'answer is contradicted by
the facts. Iran has already shawn not only that the radar on the Reshadat complex was
unsophisticated and in astate of disrepair, but that this radar was located on the R-4 platform. - 4 -
However, the initial target was the R-7 platform, which did not have a radar, and the R-4
platform was described by the United States as an "unexpected 'targetof opportunity"'which
had not been planned (see lran'sReply, paras. 4.80 et seq.and Iran'sMemorial, Exhibit 69).
There were no radar facilities on either the Salman or Nasr platforms, and the United States,
whose forces boarded the Salman platforms and would thus have been in a position to
ascèrtain what equipment was present, has not alleged otherwîse. Moreover, the United
States' acknowledgement that the waters around the platforms were not mined (paragraph 5 of
its answer) is furtherconfirmation oftheir non-offensive status.
Finally,in its response to this question, the UniStat ~asagain alleged that "more lranian
attacks on shipping took place within radar range of lran's platfonns than took place within
radar range of Farsi Island". This ignores the fact thatasthe United States' own evidence
shows, the numberof attacks alleged to have occurred inthe vicinity of the platforms in 1987
and 1988 is insignificant (see U.S. Exhibit 1p. 41 and Exhibit 2, pp. 19, 21 and 23; see also
CR 2003/15, p. 31, para. 2!). - 5 -
t'
FIRST QUESTION OF JUDGE AD HOC RIGAUX TO BOTH PARTIES:
"What is the legal status of oil platforms constructed by a Statc on its continental shclr?
What types of jurisdiction are exercise1 over such installations? How does the status of
oil platforms vary depending on whether they are situated within a State's territorial sea
or outside it?"
Iran has no comments on the answer of the United States to this question. - 6 -
1
'\
SECOND QUESTION OF JUDGE AD HOC RIGAUX TO BOTH PARTIES:
"During the war between Iran and Iraq was Kuwait a neutra! state, a non-belligcrent
state, or a co-belligerent statc with Iraq? Would the responsc to this question be
different dcpending on whcthcr it was given during the war or today, bcaring in mind
the additional information now availablc?"
·,
ln its response to this question, the United States has failed to draw any distinction between a
neutra! State complying with its corresponding obligations and a so-called non-belligerent
State. As Iran has alrcady noted in its own response, the expression "non-bclligerent" has been
used to describe a situation where a State, while formal!y neutra! because it is not a party to
the conflict, has violated the obligations of abstention and impartialîty incumbent upon a
neutra!.
Kuwait's actions during the conflict, which have been documentee!by Iran, demonstrate that
Kuwait did not respect its obligations as a neutra!. The evidence provided by Iran a!so
demonstrates that Kuwait's non-neutra! actions were public knowledge at the time (see in
particular Iran's Reply, paras. 2.12- 2.16; the Freedman Report annexed ta lran's Reply in
Vol. II; Iran'sFurther Response, paras. 3.23- 3.27; and theevidence referred to therein).
As Iran has already noted in its own response to this question, a State is either a party to a
conflîct or itis not. The Diplomatie Note from the Ministry of Foreign Affairs of the State of
Kuwait, attached to the United States' response, merely reflects Kuwait's formai status as a
non-party. This Note must be read in the light of various statements made by high Kuwaiti
officiais, including the Minister of Foreign Affairs, in the early 1990s, which are attached to
Iran'sReply as Exhibit 13. Ali tbose statements acknowledge Kuwait'ssupport for Iraq during
the conflict, which was clearly in violation of the obligationsof a neutra!.
Written Replies of the Parties to Questions put by Judges during the Oral Proceedings and Observations submitted by the Parties on Replies