INTERNATIONAL COURTOFJUSTICE
Peace Palace, 2517 KJ The Hague. Tel.(31-70-302 23 23). Cables: Intercourt. The Hague.
Telefax (31-70-364 99 28). Telex 32323. Internet address: http: Il www.icj-cij.org
Communiqué
unofficial
for immediate release
No. 98/10
19 March 1998
Case concerning Oil Platforms
Oslamic Republic of Iran v. United States of America)
The Court finds United States counter-.claim admiuible
THE HAGUE, 19 March 1998. The International Court of Justice (ICJ) found, by an Order released
today in the case concerning Oil Platforms (Islamic Republic oflran v. United States of America), that a
• counter-claim submitted by the United States against Iran is "admissible as such" and that it "forms part of
the current proceedings".
In its counter-claim (submitted on 23 June 1997 in its Counter-Memorial), the United States requested
the Court to adjudge and declare that "in attacking vessels, laying mines in the Gulf and otherwise engaging
in military actions in 1987-1988 that were dangerous and detrimental to maritime commerce", Iran "breached
its obligations to the United States" under Article X of the Treaty of Amity, Economie Relations and
Consular Rights between the two countries signed in Tehran on 15 August 1955. Accordingly, it requested
the Court ta say that Iran was "under an obligation to make full reparation to the United States ... in a form
and amount to be determined by the Court at a subsequent stage of the proceedings".
The decisionof the Court admitting the United States counter-claim means that the counter-claim wiiJ
be examined by the Court simultaneously with the Iranian claims during the proceedings on the merits.
Pursuant to the Rules of the Court (Art. 80, para. 1), a counter-claim may be presented provided that
it is directly connected with the subject-matterclaim of the ether Party and that it cornes within the
jurisdiction the Court.
•
On 2 October 1997,Iran challenged the American counter-claim, saying that it had "serions objections"
ta its admissibility because it did "not meet the requirements of Article 80, paragraph 1, of the Rules". Bath
Parties wereconsequent!y asked to submit written observations. Having received these observations in which,
inter alia. Iran requested a hearing on the subject and theates objected ta it, the Court found that
it was sufficiently infarmedthe position of the Parties with regard to admissibility and that it was not
necessary ta hear therties further on the subject.
In its Order, the Court specified that the United States counter-claim was "directly connected with the
subject-matter ofthe claims oflrathe claims afboth Parties rested on facts afthe same nature forming
part of the same factual complex, and the United States counter-claim feil under the jurisdiction of the Court
"in so far as the facts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph 1",of
the 1955 Treaty (relating to the freedom of commerce and navigation).
Taking inta account these conclusions, the Court directed the Parties to submit further written pleadings
on the merits of their respective claims. Iran is to submit a Reply by 10 September 1998 and the United
Statesa Rejoinder by 23 November 1999. - 2 -
Judges Oda and Higgins appended separate opinions. ~ad hoc Rigaux appended a dissenting
opinion.
The operative paragraph of the Court's Order, summaries of the opinions of Judges, the terms of the
counter-claim of the United States and the claims of Iran as stated in its Memorial, may be found in an
Annex to this press release (available on the Website of the Court and by post on request).
Histocy of the dis.pute
On 2 November 1992 the !Stamic Republic of Iran filed an Application instituting proceedings against
the United States with respect to the destruction of lranian oil platforms.
Iran founded the jurisdiction of the Court on Article XXI, paragraph 2, of the Iran/United States Treaty
of Amity, Economie Relations and Consular Rights, signed at Tehran on 15 August 1955.
In its Application Iran alleged that the destruction caused by several warships of the United States
Navy, on 19 October 1987 and 18 April 1988, to three offshore oil production complexes, owned and
operated for commercial purposes by the National Iranianil Company, constituted a fondamental breach •
of various provisions of the Treaty of Amity and of international law. In this connecIran referred in
particular to Articles I and X, paragraph 1, of the Treaty which provide respectively: "There shall be firm
and enduring peace and sincere friendship between the United States of America and Iran" and "Between the
territories of the two High Contracting Parties there shaH be freedom of commerce and navigation".
By an Order of 4 December 1992 the President of the Court, taking into accoantagreement of the
Parties, fixed time-limits for the filing of the Memorial of Iran and of the Counter-Memorial of the United
States. These time-limits were later extended to 8June and 16 December 1993, respectively. The Memorial
of Iran was filed within the prescribed time-limit.
On 16 December 1993 the United States filed a preliminary objection, contending that the Court had
no jurisdiction to deal with the merits of the case. Iran filed a written statement on this issue and public
sittings to hear the oral arguments of the Parties were held between 16 and 24 September 1996.
On 12 December 1996, the Court delivered its Judgment, finding that it hadjurisdiction to entertain
the claims made by Iran onder Article X, paragraph 1, of the 1955 Treaty as the destruction of oil platfo.,s
was .capable of having an adverse effect upon the "freedom of commerce" as guaranteed by that provision
of the 1955 Treaty.
By an Order of 16 December 1996 the President of the Court, taking into account the agreement of
the Parties, fixed 23 June 1997 as the time-limit for the filing of the Counter-Memorial of the United States.
Within this time-limit, theited States filed its Counter-Memorial and a counter-claim.
Website address of tbe Court: bttp:/lwww.icj-cij.org
Information Office:
Mr. Arthur Witteveen, Secretary of the Court (tel: 31-70-302 23 36)
Mrs. Laurence Blairon, Infonnation Officer (tel: 31-70-302 37) AnnexJo Press Communiqué No. 98110
Operatiye paragraph of the Order of 10 March 1998 (para. 46)
For these reasons,
THE COURT,
(A) By fifteen votes ta one,
Finds that the counter-claim presented by the United States in its Counter-Memoriais
admissible assuch and fonns part of the current proceedings;
IN FAVOUR: Vice-PresidentWeeramantry, Acting Presiden PresidentSchwebel;
Judges Oda., Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judge ad hoc Rigaux;
(B) Unanimously,
•
DirectsIran ta submit a Reply and the United States to submit a Rejoinder relating to the
claims ofboth Parties anfixesthe following dates as time-limits for the filing ofthese pleadings:
For theReply oflran, 10 September 1998;
For the Rejoinder of the United States, 23 November 1999.
Judges ODA and HIGGINS append separate opinions ta the Order of the Court.
Judge ad hoc RIGAUX appends a dissenting opinion to the Order of the Court.
Separate opinion of Judge Oda
Albeit reluctantly, Judge ODA voted in faveur of the Order which was very nearly
unanimously adopted but found it inappropriate that the Court should have decided,this stage
and in the form of a Court Order, that "the counter-claim presented by the United States in its
Counter-Memorial is admissible assuch and forms part of the current proceedingsHe felt that
the Court's decision in this Order set a rather unfortunate precedent inprudence relating to
counter-claims.
Judge Oda examined the two precedents of the counter-claim in the jurisprudence of the
present Court, namely, theAsylum case and the case conceming the Rights of Nationals of the
United States of America in Morocco.
He then suggested that the purpose of the counter-claim is the proper administration ofjustice
with a view to judicial ecanomy to enable it ta rule on any or ail connected claims in a single
proceeding, inother words, to avoid any inconvenience which might be caused by the other party
or by a third party filing a fresh application on issuesaredirectly connected. In his view,
however, an applicant State would be severely prejudiced if the scope of the issues, in the
respondent State's counter-claim, was broadened beyond the original contention in the claim of the
applicant State and the Court should not simply put what might have originally been somewhat
distinct matters into one melting-pot without making a careful examination essential character
of that claim. r
(
- 2 -
Judge Oda wondered if, in the present case, it was quite proper to confirm the adrnissibility
of the United States counter-claim and make it part of the whole proceedings without (i) affording
the Parties, and in particular the Applicant,e opportunity to express their views on this matter in
the written pleadings and (ii) without having oral hearings on the basis that the exchange of views
indicated in the written proceedings had now been completed.
Past precedent seemed to him to indicate, in general, that the question presented by way of
a counter-claim by the Respondent and the subject-matter of the Applicant were so interlinked that
their direct connection could not be determined without careful study of the substance of the issues
contained in their respective counter-claims. In the two past cases referred to above, sorne of the
respective counter-claims submitted by the Respondents had been rejected by the Court but only
afterit had been proved, by a thorough examination through the written and oral pleadings, that the
counter-claims were directly connected with the subject-matter of the claim of the other party.
Whether or not there was a "connection between the question presented by way of counter-claim
and the subject-matter of the claim of the other party" was a matter that should have been open to
analysis by Iran in the Reply which it was to prepare and, further, by the United States in its
Rejoinder. ·
Judge Oda concluded that it was difficult to understand why the admissibility of the
counter-claim should be determined at this stage before the Court had, at !east, received Iran's •
Reply. He also failed to understand why that needed to be done so hast iy in this case especially
considering the careful manner in which the Court had proceeded in earlier years.
In addition, Judge Oda believed that the matter concemed, namely whether the
(counter-)claim was admissible or not, should not be determined by the Court in the form of an
Order but should rather be decided by the Judgment in the merits phase.
Separate opinion of Judge Higgins
Judge Higgins agrees with the Court'sfinding that the counter-claim is admissible as regards
United States daims under Article X, paragraph l, of the Treaty of Amity. However, in ber
separate opinion she contends that other matters should also have been addressed, whether to affinn
them or dispose of them.
In particular Judge Higgins believes that questionsfwhether daims relating to warships are
admissible onder Article X, paragraph 1, and the question of whether Article X, paragraph l, is
restricted to commerce between the Parties, fall to be determined at this stage using the •
methodology decided upon by the Court in its Judgment on jurisdiction in the Oil Platforms case
of 1996 (i.e., to assumepro tem the correctness of the claimant's allegations and to see whether
claims might perhaps be sustainable under the various provisions cited. Had the Court done this,
rather than leave these matters open to the merits, the two Parties would have been treated equally.
Judge Higgins contends in her opinion that sorne explicit answer should have been given as
to whether the Court bas jurisdiction over claims of the United States brought under Article X,
paragraphs 2 to 5. Instead, the Court has merely said it bas jurisdiction under Article X,
paragraph 1. Any assumption that counter-claims must, to meet the requirement in Article 80,
paragraph 1, of the Rules, be founded on the very same jurisdictional basis as the original claim,
is in Judge Higgins's view wrong, for reasons she elaborates in ber opinion.• !
{
- 3 -
Dissenting opinion of Judge ad hoc Rigaux
It appears from the written exchanges between the Parties that the only question referred to
the Court was whether therewere grounds for acceding to the Islamic Republic oflran's request for
oral proceedings to be held on the question of the non-apparent nature of the direct connection
between the original claim and the counter-claims.
Instead of merely either complying with the request, as it would have been justified to do
having regard to the complexity of the questions at issue between the Parties, or dismissing it and
joining the question of the admissibility of the counter-claims to the merits, the Order draws its
inspirationfrom the Order of 17 December 1997 (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)) to pronounce
on the existence of a direct connection whereas the particular circumstances of the two cases are
very different from one another. lt is also regrettable that the question was dealt with in a
procedural order.
Counter--claim of the United States of America of 23 June 1997 (Counter-Memorial)
• With respect toits counter-claim, and inaccordance with Article 80 of the Rules of the Court,
the United States requests that the Court adjudge and declare:
1. That in attacking vessels, laying mines in the Gulf and otherwise engaging in
military actions in 1987-1988 that were dangerous and detrimental to maritime
commerce, the Islamic Republic oflran breached its obligations to the United States
onder Article X of the 1955 Treaty, and
2. That the Islamic Republic of Iran is accordingly onder an obligation to make full
reparation to the United States for violating the1955 Treaty in a fonn and amount
to be determined by the Court at a subsequent stage of the proceedings.
The United States reserves the right to introduce and present to the Court in due
course a precise evaluation of the reparation owed by Iran.
Claims of tbe Islamic Republic of Iran of 8 June 1993 (M:emorial)
In the light of the facts and arguments set out above, the Government of the
Islamic Republic of Iran requests the Court to adjudge and declare:
1. That the Court hasjurisdiction onder the Treaty of Amity to entertain the dispute
and to rule upon the claims submitted by Iran;
2. That in attacking and destroying the oil platforms referred to in Iran's
Application on 19 October 1987 and 18 April 1988, the United States breached
itsobligations to Iran, inter alia, under Articles 1,IV (1) and X (1) of the Treaty
of Amity and international law, and that the United States bears responsibility
for the attacks; and
3. That the United States is accordingly onder an obligation to make full reparation
to Iran for the violationof its international legal obligations and the injury thus
caused in a form and amount to be determined by the Court at a subsequent
stage of the proceedings. Iran reserves the right to introduce and present to the
Court in due course a precise evaluation of the reparation owed by the United
States; and
4. Any other remedy the Court may deem appropriate".
- The Court finds United States counter-claim admissible
Oil Platforms (Islamic Republic of Iran v. United States of America) - The Court finds United States counter-claim admissible