Non- Corrigé
Uncorrected
CR 96/12
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1996
Public sitting
held on Monday 16 Sept~er 1996, at 3 p.m., at tbe Peace Palace,
President Bedjaoui presiding
in the case concerning Oil Platfor.ms
(Islamic Republic of Iran v. United States of America)
Prelimina~ Objection
VERBATIM RECORD
ANNEE 1996
Audience publique
tenue le lundi 16 septembre 1996, à 15 heures, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
en l'affaire des Plates-formes pétrolières
(République islamique d'Iran c. Etats-Unis d'Amérique)
Exception préliminaire
COMPTE RENDU - 2 -
Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Higgins
Parra-Aranguren
Judge ad hoc Rigaux
Registrar Valencia-Ospina - 3 -
Présents M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Mme Higgins,
M. Parra-Aranguren, juges
M. Rigaux, juge ad hoc
M. Valencia-Ospina, Greffier - 4 -
The Government or the Islamic Republic or Iran is represented by:
Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the
Iran-U.S. Claims Tribunal,
as Agent;
Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company,
Mr. James R. Crawford, Whewell Professer of International Law, University of
Cambridge, Member of the International Law Commission,
Mr. Luigi Condorelli, Professer of International Law, University of Geneva,
Mr. Rodman R. Bundy, Avocat à la Cour de Paris, Member of the New York Bar,
Frere Cholmeley, Paris,
as Counsel and Advocates;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professer of
International Law, Emeritus, University of Cambridge,
Dr. N. Mansourian, Legal Advisor, Bureau of International Legal Services of
the Islamic Republic of Iran,
Dr. M. A. Movahed, Senior Legal Advisor, National Iranian Oil Company,
Dr. H. Omid, Legal Advisor, National Iranian Oil Company,
Dr. A. A. Mahrokhzad, Legal Advisor, National Iranian Oil Company,
Mr. David S. Sellers, Solicitor, Frere Cholmeley, Paris,
Ms Loretta Malintoppi, Avocat à la Cour, Frere Cholmeley, Paris
as Counsel.
The Government or the United States or America is represented by:
Mr. Michael J. Matheson, Acting Legal Adviser, U.S. Department of State,
as Agent;
Dr. John H. McNeill, Senior Deputy General Counsel, u.s. Department of
Defense,
Professer Andreas F. Lowenfeld, Rubin Professer of International Law, New
York University School of Law, - 5 -
Le Gouvernement de la République islamique d'Iran est représenté par :
M. M. H. Zahedin-Labbaf, agent de la République islamique d'Iran auprès du
Tribunal des réclamations Etats-Unis/Iran,
comme agent;
M. S. M. Zeinoddin, chef du service juridique, National Iranian Oil Company,
M. James R. Crawford, professeur de droit internatiç~al, titulaire de la
chaire Whewell à l'Université de Cambridge,
M. Luigi Condorelli, professeur de droit internatio~a: à l'Université de
Genève,
M. Rodman R. Bundy, avocat à la Cour, Paris, membre è~ barreau de New York,
cabinet Frere Cholmeley, Paris,
comme conseils et avocats;
M. Derek W. Bowett, C.B.E., Q.C., F.B.A., professe~= émér~te de droit
international, ancien titulaire de la chaire Whe-..·e::. à l'Université de
Cambridge,
M. N. Mansourian, conseiller juridique, bureau du ser·::ce juridique
international de la République islamique d'Iran,
M. M. A. Movahed, conseiller juridique principal, r:a~:cnal !ranian Oil
Company,
M. H. Omid, conseiller juridique, National Iranian ::~ ::c::-:pany,
M. A. A. Mahrokhzad, conseiller juridique, Nationa~ :"an:an Oil Company,
M. David s. Sellers, solicitor, cabinet Frere Chol~e:ey, Paris,
Mme Loretta Malintoppi, avocat à la Cour, cabinet Frere Cholmeley, Paris,
comme conseils.
Le Gouvernement des Etats-Unis d'Amérique est représenté par :
M. Michael J. Matheson, conseiller juridique en exer2:2e d~ département
d'Etat des Etats-Unis,
comme agent;
M. John H. McNeill, conseiller juridique principal a=-o:~t du département de
la défense des Etats-Unis,
M. Andreas F. Lowenfeld, professeur de droit internatlonal, titulaire de la
chaire Rubin à la faculté de droit de l'Université de New York, - 6 -
Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs,
U.S. Department of State,
Dr. Sean Murphy, Counselor for Legal Affairs, United States Embassy, The
Hague,
Mr. Jack Chorowsky, Special Assistant to the Legal Adviser, United States
Department of State
Commander Ronald D. Neubauer, JAGC, United States Navy,
as Counsel and Advocates;
Mr. Allen Weiner, Attache (Office of the Legal Counselor), United States
Embassy, The Hague
as Counsel. - 7 -
M. John R. Crook, conseiller juridique adjoint pour les questions concernant
l'Organisation des Nations Unies au département d'Etat des Etats-Unis,
M. Sean Murphy, conseiller pour les affaires juridiques à l'ambassade des
Etats-Unis aux Pays-Bas,
M. Jack Chorowsky, assistant spécial du conseiller juridique du département
d'Etat des Etats-Unis,
Le capitaine de frégate Ronald D. Neubauer, Judge Advocate General's Corps,
de la Marine des Etats-Unis,
comme conseils et avocats;
M. Allen Weiner, bureau du conseiller juridique, attaché à l'ambassade des
Etats-Unis aux Pays-Bas,
comme conseils. - 8 -
The PRESIDENT: Please be seated. The sitting is open. The Court
meets today, pursuant to Articles 43 et seq. of its Statute and
Article 79, paragraph 4, of the Rules of Court, to hear the oral
statements of the Parties on the preliminary objection raised by the
United States of America in the case concerning Oil P:atfor.ms (Islamic
Republic of Iran v. United States of America).
*
* *
La Cour ne comptant pas sur le siège de juge de :a nationalité du
demandeur, celui-ci a fait usage du droit que lui cor.!ère l'article 31,
paragraphe 2, du Statut de désigner un juge ad hoc. ~e choix de la
République islamique d'Iran s'est porté sur M. Frar.çc!s Rigaux, de
nationalité belge. Il est heureux pour la Cour qu·~e personnalité aussi
éminente ait été désignée pour siéger en qualité de )~ge ad hoc en
l'affaire.
M. Rigaux a à peine besoin d'être présenté, tar.t !l est bien connu,
non seulement des internationalistes, mais aussi des spéc1alistes de
maintes autres disciplines juridiques. Rares sont en effet les juristes
qui, comme M. Rigaux, ont acquis une si vaste cultu~e et ~~e si grande
intelligence du droit qu'ils peuvent s'exprimer dans ses différents
domaines avec une maîtrise aussi sûre et une autorité aussi incontestée.
M. Rigaux a été formé à l'école de la prestigieuse Ur.!versité catholique
de Louvain, où il a étudié non seulement le droit, ~!s a~ssi la
philosophie et les sciences criminelles. Agrégé de :·er.seignement
supérieur en droit, il a accompli une carrière aussi br!l:ante que
CR96/12 - 9 -
féconde consacrée à l'enseignement et à la recherche dans diverses
branches du droit, tant à l'Université de Louvain que dans d'autres
universités ou institutions scientifiques de son pays et à l'étranger.
Auteur de nombreuses publications qui constituent autant d'ouvrages de
référence dans les matières concernées, M. Rigaux est aussi le distingué
membre de plusieurs académies et sociétés savantes, parmi lesquelles
l'Académie royale de Belgique et l'Institut de droit international.
M. Rigaux a par ailleurs acquis une vaste expérience de la pratique du
droit en exerçant successivement, dans son pays, les fonctions d'avocat,
de magistrat de l'ordre judiciaire et d'assesseur de la section de
législation du Conseil d'Etat belge.
Conformément aux dispositions de l'article 31, paragraphe 6, du
Statut de la Cour, les juges ad hoc doivent prendre l'engagement solennel
prévu à l'article 20 dudit Statut. J'invite en conséquence M. Rigaux à
faire maintenant la déclaration dont le texte figure à l'article 4 du
Règlement de la Cour, et je demande à l'assistance de bien vouloir se
lever.
Monsieur le juge Rigaux, je vous en prie.
M. RIGAUX :
«Je déclare solennellement que je remplirai mes devoirs et
exercerai mes attributions de juge en tout honneur et
dévouement, en pleine et parfaite impartialité et en toute
conscience.»
Le PRESIDENT Veuillez vous asseoir. Je vous remercie,
Monsieur Rigaux. Je prends acte de la déclaration faite par M. Rigaux et
CR96/12 - 10 -
le déclare dûment installé comme juge ad hoc en l'affaire des
Plates-formes pétrolières (République islamique d'Iran c. Etats-Unis
d'Amérique) .
*
* *
The proceedings were brought on 2 November 1992 by the filing in the
Registry of the Court of an Application by the Islamic Republic of Iran
against the United States of America, in respect of a dispute
"aris[ing] out of the attack and destruction of three off-shore
cil production complexes, owned and operated for commercial
purposes by the National Iranian Oil Company, by several
warships of the United States Navy on 19 October 1987 and
18 April 1988 respectively".
In its Application, the Islamic Republic of Iran asserts that those acts
constitute a "fundamental breach" of various provisions of the Treaty of
Amity,_ Economie Relations and Consular Rights between the United States
of America and Iran which was signed in Tehran on 15 August 1955 and
entered into force on 16 June 1957, as well as of international law; and
the Islamic Republic requests the Court to adjudge and declare that the
United States is under an obligation to "make reparations ... for the
violation of its international legal obligations". The Application
invokes, as a basis for the Court's jurisdiction, Article XXI,
paragraph 2, of the Treaty of Amity.
*
* *
CR96/12'.
- 11 -
By an Order dated 4 December 1992, the President of the Court fixed
31 May 1993 and 30 November 1993 as the respective time-limits for the
filing of the Memorial of the Islamic Republic of Iran and the
Counter-Memorial of the United States of America. At the request of
Iran, the time-limit for the filing of its Memorial was extended until
June 1993 by an Order of the President dated 3 June 1993; while the
time-limit for the filing of the Counter-Memorial of the United States
was extended, by the same Order, until 16 December 1993. The Memorial of
the Islamic Republic of Iran was filed within the time-limit thus
extended. Within the extended time-limit fixed for the filing of the
Counter-Memorial, the United States of America raised a preliminary
objection to the jurisdiction of the Court to entertain the case,
pursuant to Article 79, paragraph 1, of the Rules of Court.
*
*
*
The follow-up to the filing of a preliminary objection is laid down
in Article 79 of the Rules of Court. In accordance with paragraph 3 of
that Article, upon receipt by the Registry of a preliminary objection the
proceedings on the merits are suspended, and a particular proceeding has
to be organized in order to enable the Court to consider that objection.
By an Order dated 18 January 1994, the President of the Court fixed
1 July 1994 as the time-limit within which the Islamic Republic of Iran
could present a written statement of its observations and submissions in
respect of the preliminary objection raised by the United States of
America. Within the time-limit thus fixed, the Islamic Republic filed
CR96/12 - 22 -
such a statement, at the end of which it asks the Court to adjudge and
declare:
"1. That the Preliminary Objection of the United States is
rejected in its entirety;
2. That, consequently, the Court has jurisdiction under
Article XXI (2) of the Treaty of Amity to entertain the claims
submitted by the Islamic Republic of Iran in its Application
and Memorial as they relate to a dispute between the Parties as
to the interpretation or application of the Treaty;
3. That, on a subsidiary basis in the event the
Preliminary Objection is not rejected outright, it does not
possess, in the circumstances of the case, an exclusively
preliminary character within the meaning of Article 79 (7) of
the Rules of Court; and
4. Any other remedy the Court may deem appropriate."
*
* *
Pursuant to Article 79, paragraph 4, of the Rules of Court, it now
falls to the Court to hear the Parties on the questions relating to its
jurisdiction. I note the presence here of the Agents of the two Parties.
For the purposes of the oral proceedings on the preliminary objection,
the Agent of the United States of America will be the first to take the
floor.
However, before giving him the floor, I must announce that, after
having ascertained the views of the Parties, the Court has decided, in
accordance with Article 53, paragraph 2, of the Rules of Court, to make
accessible to the public the pleadings and documents annexed thereto
filed to date in the present proceedings.
CR96/J.2 - 13 -
I now give the floor to Mr. Matheson, the distinguished Agent of the
United States of America to open the pleadings for his government.
*
* *
MR. MATHESON: Mr. President and Members of the Court, it is again my
great honour and pleasure to appear before you on behalf of the United
States of America.
We are here to explain the basis for the preliminary objection of
the United States to the Application filed by the Islamic Republic of
Iran. We will refer in the course of our presentation to decisions of
the Court, exhibits in the record, and other supporting materials. With
the Court's indulgence, we will not read the citations to these
materials, but they are included in the texts which we have submitted to
the Registry.
Before proceeding to explain the preliminary objection, and without
wishing to enter into any lengthy discussion of the merits of the case,
let me reiterate briefly for the record the basic position of the United
States regarding the allegations made in the Iranian Application.
The United States does not accept the allegation that the actions of
US forces in question were unlawful or a manifestation of a design to
assist Iraq in the prosecution of its war effort. If this case were to
proceed to the merits, we would show that the United States acted at all
times in lawful defence of its forces, its nationals and ships of its
registry from unlawful attack by Iranian forces.
CR96/12 - 14 -
We would be prepared to establish that the Iranian platforms in
question were destroyed because of their use tc facilitate Iranian
attacks on neutral shipping, including US warships and merchant vessels.
Accordingly, the United States is not, by its preliminary objection,
seeking tc avoid responsibility for wrongful acts. If this case should
proceed tc the merits phase, the United States would deny liability for
the loss and damage resulting from these incidents, and would demonstrate
that it is the Islamic Republic of Iran which must bear that loss.
Returning new tc the basis for the US preliminary objection, we will
show in these proceedings that the claims brought by Iran under the 1955
bilateral Treaty of Amity, Economie Relations and Consular Rights have no
reasonable basis under that Treaty, but are in fact assertions that the
United States violated obligations under general international law -
assertions that do not fall within the Court's jurisdiction pursuant tc
the Treaty. We will show that the Treaty has no reasonable application
tc the events that are at issue in this case, which were part of a series
of military encounters between Iranian and US forces having no
relationship tc the commercial and consular matters regulated by the
Treaty.
The invocation of the 1955 Treaty by Iran for this purpose is
remarkable in many ways. For many years, when the United States and US
claimants invoked the Treaty before the Iran-united States Claims
Tribunal with respect tc commercial issues, Iran insisted that the Treaty
was no longer in force. It would appear from the record that Iran
maintained this position right up tc the moment of the filing of its
Memorial in the case concerning the Aerial Incident of 3 July 1988, when
CR96/12 - 15 -
the Treaty apparently became attractive as an alternative basis for
jurisdiction in that case.
To our knowledge, Iran had not previously invoked the Treaty as an
all-purpose charter governing every aspect of friendly relations,
including the use of force. Nor has the United States done so; in the
case concerning United States Diplomatie and Consular Staff in Tehran,
the United States alleged violation of the specifie consular provisions
of the Treaty rather than sorne broader notion of a violation of friendly
relations. During the Iranian Revolution, when Iran complained of
illegal intervention by the United States in Iranian internal affairs, we
know of no instance in which the Government of the Islamic Republic of
Iran cast this complaint in terms of the Treaty.
During the long years of the Iran-Iraq War, when Iran complained
repeatedly that the United States was unlawfully aiding Iraq in its
prosecution of a war of aggression, there was, to our knowledge, no
Iranian allegation that this conduct violated the Treaty. Further, so
far as we know, Iran never raised the Treaty in connection with the
incidents in question in this case until nearly five years after the
first of the two incidents, when it decided to file the current
Application before this Court. Until that moment, Iran had consistently
based its complaints in political fora about these actions of the United
States on the alleged violation of the United Nations Charter and other
aspects of general international law. Not until Iran needed to find a
basis for invoking the jurisdiction of this Court was there, to our
knowledge, any suggestion that the United States had violated the
provisions of a bilateral commercial treaty.
CR96/12 - 16 -
Having no other jurisdictional alternative, Iran chose to base its
claims in the present case on a treaty designed to protect maritime
commerce and business relationships, even though the incidents in
question arose precisely because of attacks by Iranian forces against
neutral shipping that was not engaged in support of the war effort of
either Iran or Iraq. In effect, Iran has elected to invoke a bilateral
commercial treaty to shield itself from the legal consequences of its own
armed attacks on peaceful commerce.
All of this suggests what we believe to be true: that the
invocation of the 1955 Treaty was a mere afterthought - an expedient
jurisdictional vehicle for complaints that had nothing to do with the
substance and purpose of the Treaty.
In any event, it is now for the Court to determine whether this
Treaty on commercial and consular relations is a proper jurisdictional
basis for this complaint concerning the legality of the use of force. We
will show that this is not the case, and that Iran's Application should
accordingly be dismissed for want of jurisdiction.
We will begin with a review of the events that gave rise to these
military encounters. Dr. John McNeill, Senior Deputy General Counsel of
the US Department of Defense, was to have appeared today to deal with
this aspect of our presentation. Unfortunately, he has been hospitalized
and has been unable to come to The Hague. In his place, his senior
assistant, Commander Ronald Neubauer, will deliver the presentation that
he and Dr. McNeill had prepared.
Commander Neubauer will show that all of the facts needed to support
the preliminary objection of the United States are well documented in the
public record and are not contested by Iran. In particular, he will show
CR96/12 - l7 -
that the events in question were part of a series of hostile encounters
involving US and Iranian forces, which occurred during the course of a
major international armed conflict. This, in our view, constitutes a
sufficient factual predicate for the US preliminary objection.
Commander Neubauer will also deal briefly with various other factual
allegations contained in the Observations and Submissions on the US
preliminary objection submitted by the Islamic Republic of Iran -
allegations that the Court need not rule on in this jurisdictional phase,
but that cannot be left unchallenged on the record of these proceedings.
Next, Professer Andreas Lowenfeld, Rubin Professer of International
Law at the New York University School of Law, will explain the basis for
our belief that the Iranian Application is not within the Court's
jurisdiction. He will show that the United States bas not consented to
the jurisdiction of the Court in this case. He will show that the
allegations raised by the Iranian complaint deal not with matters
governed by the Treaty, but with a broad range of legal issues regarding
neutrality and the use of force that are not within the Court's
jurisdiction in this case.
Mr. John Crook, Assistant Legal Adviser for United Nations Affairs
in the US Department of State, will continue this argument tomorrow with
a more detailed examination of the purposes and provisions of the 1955
Treaty. He will show that it regulates only commercial and consular
relations by each party with the nationals of the other, and he will
rebut the contention that it governs the entirety of peaceful relations
between the Parties.
Next, Dr. Sean Murphy, Legal Counselor to the US Embassy in
The Hague, will address the relevance of the decisions of this Court in
CR96/l2 - 18 -
the Nicaragua case. He will show, contrary to Iran's assertions, that
the Court declined in that case to accept the very arguments being made
by Iran in the current proceeding, and that the reasoning which led the
Court to apply a similar treaty on narrow grounds in the Nicaragua case
is not applicable to the case brought by Iran.
Mr. Jack Chorowsky, Special Assistant to the Legal Adviser in the
Department of State, will then show the Court that it can and should rule
in this preliminary phase on the issues raised by our objection. He will
explain our view that Iran must, to defeat our objection, establish that
its claim has a reasonable connection to the 1955 Treaty.
Finally, I will offer a summary of our arguments. I will ask the
Court to uphold the preliminary objection of the United States and to
find that it does not have jurisdiction over the Application of the
Islamic Republic of Iran.
Mr. President, the distinguished Mernbers of the Court may ask
themselves: "Why should the Court decide the issues raised by the United
States at this preliminary phase of our proceedings? Do they not relate
to issues of substantive interpretation of the 1955 Treaty that would
more readily be dealt with in a merits phase, when the Court would have
the benefit of a detailed examination of the facts of the case as well as
the substance of the provisions of the Treaty?"
These are natural and logical questions, and cnes to which the
Islamic Republic of Iran has made allusion in its briefs. Let me
therefore suggest several reasons why the Court should resolve new the
issues raised by the United States in its preliminary objection.
First and foremost, we believe that the legal case for doing so is
compelling, for the reasons my colleague and I will develop over the next
CR96/12 - 19 -
two days. The US preliminary objection does possess an exclusively
preliminary character and falls within the scope of Article 79 of the
Rules of Court. It can be decided on the basis of facts that are
uncontested and clear on the public record.
Second, if this case were to proceed to a meri~s phase, the two
Parties would of necessity invest a great deal of t:~e. effort and
resources in further fact-finding, preparation and a~gu~ent that would
all be obviated by a clear decision upholding the p~el:rr.inar obyjection.
The Iranian Complaint deals with a long series of e\·en~s which took place
nearly ten years aga and involved the actions of dozens of ships and
aircraft and thousands of men and women of many co·..J.n~r:es. In light of
the high financial and political stakes involved in ~h:s case, each
Government would certainly wish to investigate and re=ord these events
thoroughly. Each would gather eyewitness and exper~ ~est:mony, material
evidence, and background information to prove ever-::· aspect of the case.
The United States would also be able in such a mer:ts proceeding ta
raise counter-claims, such as claims for the damage a~~ costs suffered by
the United States as a result of the unlawful actions c~ :ran committed
in connection with these events. If the prodigious expense and effort of
such a merits proceeding could be avoided by a dec:s~=~ now, it certainly
should be.
Third, if this case were to proceed to the me:r-lts. the Court would
be confronted with a lengthy and very difficult evldent:ary proceeding
that would rival or exceed anything of the kind it has yet faced. For
example, the disputed events of this case are far more complex and
far-ranging than the Corfu Channel case. It woulà, among other things,
become necessary for the Court ta consider and decide such technical
CR96/12 - 20 -
matters as the characteristics and origin of the mines and missiles used,
the character and purpose of the actions conducted on the Iranian
platforms, and the sequence of events in a number of hostile encounters.
Since beth Parties would be present and actively litigating, these
proceedings would inevitably be far more lengthy and complex than those
in the Nicaragua case and could even rival those of the South West Africa
cases. Clearly such a merits proceeding would occupy the Court's time
and attention for a very long period, and entail a heavy drain on the
resources of the Court. If possible, it would be desirable to avoid this
through a decision new on the US objection.
Needless to say, if the proper resolution of this case genuinely
reguired the Court to engage in such a merits proceeding, even with all
the attendant cost and consequences, the Court should decide to do so.
In that event, the United States would vigorously defend its position.
On the ether hand, if these consequences could be avoided through a
proper decision in the current phase on the issues raised by the United
States, this would clearly be the preferable course. That is the whole
purpose of the preliminary-objections phase. There is nothing to be
gained by postponing a decision on issues that can properly be resolved
new.
Mr. President, this concludes my introductory remarks. I now
suggest that the Court invite Commander Neubauer to address the Court
concerning the factual aspects of the case. Thank yeu, Sir.
The PRESIDENT: Thank yeu very much Mr. Matheson for your statement.
I new give the floor to Commander Neubauer:
CR96/12 - 21 -
Commander NEUBAUER:
I. INTRODUCTION
Mr. President, and distinguished Members of the Court. It is an
honour and a privilege for me to be here today to present this statement
on behalf of the United States of America. As Mr. Matheson explained
Mr. McNeill is hospitalized and regrets very much that he cannet be here
today. I will present this statement as Mr. McNeill's senior assistant
on this case.
Mr. President, distinguished Members of the Court. It is fundamental
that this Court has jurisdiction only in cases where each State has
properly consented to the Court•s jurisdiction. The Islamic Republic of
Iran bases its assertion of jurisdiction in this case exclusively on the
Treaty of Amity, Economie Relations, and Consular Rights of 1955 between
the United States and the Islamic Republic of Iran (1955 Treaty) . In
accordance with Article 79 of the Rules of Court I will new briefly,
yet - I trust - compellingly, depict a set of facts entirely outside the
scope of the compromissory clause of the 1955 Treaty.
The 1955 Treaty deals with commercial, investment, and consular
affairs. Its compromissory clause provides that disputes concerning such
matters may be referred to this Court. As we will demonstrate, however,
this case concerns a matter - the use of armed force in self-defense by a
non-belingerent in a wartime context - entirely outside the 1955 Treaty.
In my presentation I will seek to distinguish those facts which are
undisputed from those facts which the Islamic Republic of Iran disputes.
Although bath categories of facts will be discussed, the Court need only
consider the undisputed facts to uphold our preliminary objection. These
CR96/12 - 22 -
undisputed facts establish that this Court is without jurisdiction to
consider the merits of Iran's claims. So as to give the Court a full
apppreciation of the factual context, however, I will also address the
disputed facts of this case, noting with particular attention the
numerous areas where Iranian claims could be refuted by overwhelming
evidence.
This factual presentation is based. on publicly available sources
found in the record. I shall be careful to identify the specifie
exhibits submitted by bath the Islamic Republic of Iran and the United
States that relate to the particular issues that we will address. Should
it become necessary at a subsequent stage of this case, the United States
would be prepared to prove the disputed facts with overwhelming
testimonial, docurnentary, and physical evidence obtained from US sources,
from foreign countries, and from private entities. But, I repeat, the
Court does not need to resolve these factual disputes in arder to uphold
the us preliminary objection.
First, by way of introduction, I will provide an overview of the
Iran-Iraq War, focusing particular attention on the "Tanker War" (as it
carne to be called) that developed from 1984 through 1988. I will
describe the defensive response of various States, including the United
States, European countries, and the nations of the Gulf Cooperation
Council to the very real, and very well-docurnented, threat that the
Islamic Republic of Iran posed to innocent rnerchant shipping in the Gulf.
Also by way of introduction, I will recall that the United States was
never a party to the Iran-Iraq War.
Second, I will describe to the Court a series of naval encounters
involving Iranian and US armed forces that took place from July 1987 to
CR96/12 - 23 -
July 1988. Please note that the series of military engagements that I
will discuss today is not all-inclusive. All of these encounters took
place in an environment marked by the threat to innocent merchant
shipping resulting from the Tanker War, and by the increased hostility of
the Islamic Republic of Iran towards the United States after 11
Kuwaiti-owned tankers were reflagged as US vessels. Included in this
series of military engagements were the US responses directed against the
Iranian off-shore platforms at Rostam (19 October 1987), and Sirri and
Sassan (18 April 1988) . I will describe how the Islamic Republic of Iran
employed these platforms in connection with the identification, tracking,
and targeting of merchant and naval vessels for attack; the coordination
of mine-laying in the path of US naval and merchant vessels; and in
staging helicopter and small-boat attacks on merchant shipping.
After my presentation, Professer Andreas Lowenfeld will explain
further the jurisdictional aspects of why such military engagements fall
entirely outside the scope of the 1955 Treaty.
II. THE SETTING. IRAN-IRAQ WAR (1980-1988)
The setting for this case is the Iran-Iraq War which raged from
1980-1988. In 1984, Iraq began the so-called "Tanker War" when it
commenced its attacks against tankers carrying Iranian oil through the
Gulf. Iraq sought to achieve on the seas the military momentum it was
then losing in the ground war, and to deprive Iran of revenues from oil
exports.
Because Iraq exported its oil through pipelines, not via tankers,
Iran could not respond in kind against Iraqi shipping (US Exhibit 3 at
10; Iranian Memorial, Exhibit 16 at 163-64). Accordingly, Iran
CR96/12 - 24 -
retaliated by attacking commercial shipping going to, from, and through
the ports of Gulf Cooperation Council Member States. It is well
documented that Iran attacked merchant vessels from over 25 different
nations (US Exhibits 6 and 10) There is also much evidence that Iran
singled out for attack neutral shipping to and from Kuwaiti and Saudi
Arabian ports, reflecting Iran's apparent belief that these States
supported the Iraqi war efforts.
The Islamic Republic of Iran does not appear to deny that it
attacked other nations' vessels; Iran's own pleadings and exhibits
describe such attacks. Apparently, the Islamic Republic of Iran views
these incidents as the legitimate exercise of the belligerent's right to
visit and search. It is the view of the United States, however, that
these attacks did not conform to the law of armed conflict, particularly
the rules governing a belligerent's right to visit and search neutral
commercial vessels.
These events produced a strong international reaction. On 21 May
1984, the UN Permanent Representatives of Bahrain, Kuwait, Oman, Qatar,
Saudi Arabia, and the United Arab Emirates requested an urgent meeting of
the Security Council:
"to consider the Iranian acts of aggression on the freedom of
navigation to and from the ports of our countries. Such acts of
aggression constitute a threat to the stability and security of the
area and have serious implications for international peace and
security." (UN Doc. S/16574; US preliminary objection, p. 8,
note 14, and US Exhibit 13 (UNSC res. 552) .)
The UN Security Council responded to this plea for help by adopting
Security Council resolution 552 on 1 June 1984, which condemned the
attacks on commercial ships calling on the ports of Kuwait and Saudi
Arabia (US Exhibit 13). The UN Security Council demanded that such
CR96/12 - 25 -
attacks cease immediately and "that there should be no interference with
ships en route to and from States that are not parties to the
hostilities".
Notwithstanding such international reactions and the unequivocal
demand of the UN Security Council, Iran persisted in targeting and
destroying the ships of States not parties to the hostilities. As I have
noted previously, however, the Islamic Republic of Iran denies that it
conducted any unlawful attacks on neutral ships.
III. US POLICY AND ACTIVITIES IN IRAN-IRAQ WAR
The United States never became a party to the hostilities (US
Exhibit 3 at 6 and US Exhibit 11). However, this did not mean that the
United States was unconcerned with the war. In fact, the policy of the
United States was to bring about the immediate cessation of hostilities
and a peaceful resolution of the dispute (US Exhibit 3 at 9). The United
States desired the war to end without victor or vanquished, preserving
the territorial integrity of both belligerents. The United States
believed that freedom of navigation had to be preserved, to and from the
Gulf. The United States desired that the war not expand, lest it create
further threats to regional security. In all of these respects, the
policies of the UN Security Council and the United States were the same.
US policy fully conformed to the eight UN Security Council resolutions
passed to this effect from 1980 through 1987 (US Exhibit 13)
The Islamic Republic of Iran apparently disputes these descriptions
of US policy. The Court does not have to resolve these differences of
view.
CR96/12 - 26 -
In the face of continued Iranian attacks on neutral shipping, and in
the absence of meaningful negotiations to end the Iran-Iraq War, the
United States took several actions. In 1987, responding to Kuwait's
request, the United States reflagged as US vessels 11 Kuwaiti-owned
tankers, in conformity with both international law ar.d US law and
procedures (US Exhibit 3 at 7-8) . These vessels were then under US
registry with US captains, under the jurisdiction and control of the
United States. All of these ships adhered strictly to the rules of
neutrality. None carried contraband or served belligerent ports.
The Islamic Republic of Iran opposed the US reflagging of the
Kuwaiti-ow.ned tankers (Iran's Memorial at 24-25 and 112-::3; US Exhibit
8 at 35598 and Exhibit 41 at 234-35) . Iran claimed that the reflagging
was intended to aid Iraq against Iran and, accordingly. d~sputed the
legality of this action (Iranian Memorial, para. 4.75 at :17; Iranian
Observations and Submissions, Annex, para. 12 at 5) . :t ~s interesting
to observe that, after the US reflagging of Kuwaiti-o~~ed tankers and
until the US actions against Iran's off-shore platforms at Sirri and
Sassan, Iran's attacks on US-flag vessels were com~itteè only against the
reflagged Kuwaiti-owned tankers or their US naval warsh:p escort. The
tanker Bridgeton was on the very first voyage of the re!:agged tankers
when it struck an Iranian-laid mine; Sea Isle City, an=ther
Kuwaiti-ow.ned reflagged tanker, was struck by an ant~-sh:p cruise missile
fired from the Iranian-occupied Faw Peninsula; and the guided missile
frigate, USS Samuel B. Roberts, hit an Iranian-laid m~ne while returning
to Bahrain after escorting such tankers.
CR96/12 - 27 -
Similarly, a Soviet-flag tanker, Marshal Chuykov, leased by Kuwait
from the Soviet Union, struck an Iranian-laid mine while it was under
escort by Soviet naval units en route to Kuwait (Iran's Observations and
Submissions, Exhibit 18 at 288) .
In the face of continued attacks on neutral shipping, the United
States increased its existing naval presence in the Gulf. This presence
had existed, without interruption, since 1949 (US Exhibit 3 at 1) . Other
countries also increased their naval forces during this period. In
addition to the United States, Belgium, France, Italy, the Netherlands,
the Soviet Union, and the United Kingdom all sent naval vessels to the
Gulf to escort merchant shipping and/or to hunt and sweep for naval mines
(US Exhibit 3; Iranian Memorial Exhibit 44 at 421). All of these States
were endeavouring to protect innocent merchant shipping from unlawful
attacks, while at the same time remaining non-belligerents in the
Iran-Iraq War.
Attacks on merchant shipping during the Tanker War resulted in
enormous losses. Between 1984 and 1988, more than 300 persons were
reported killed, wounded, or missing in action as a result of attacks on
merchant shipping by Iran and Iraq (US Preliminary Objection, p. 7,
note 11). The Oslo-based International Association of Independent Tanker
Owners estimated the total tonnage of ships sunk or declared as lest to
be nearly one-half the 24 million tons of allied merchant shipping sunk
during World War II (US Exhibit 6 at Introduction) . Another authority
explained that merchant ship losses in the Tanker War exceeded the total
of all merchant shipping lost in all ether actions since the end of World
War II (US Exhibit 12 at 620) .
CR96/12 - 28 -
Iran's position before this Court is that it did not unlawfully
attack any neutral shipping. The Court does not need to resolve these
differences between the Parties to decide the US preliminary objections
on jurisdiction.
IV. THE US ACTIONS AGAINST THE IRANIAN OIL PLATFORMS
WERE PART OF A SERIES OF HOSTILE MILITARY ENCOUNTERS
BETWEENUS AND IRANIAN ARMEDFORCES
For about a year, beginning with the US reflagging of the
Kuwaiti-owned tankers in July 1987, and lasting until just before the
August 1988 cease-fire between the Islamic Republic of Iran and Iraq, a
series of military engagements took place involving Iranian and US armed
forces. The two engagements underlying Iran's claim are included in this
series of events. Iran does not dispute that a series of hostile
engagements took place, although it does not always agree with the United
States' descriptions of what occurred. The Court does not now need to
resolve these differences between the Parties' descriptions of these
events. It is sufficient now for the Court to recognize this year-long
pattern of military encounters between Iranian and US forces.
The following discussion is the US explanation of what occurred,
noting where Iran apparently disagrees.
1. Iranian-Laid Mine Damages Bridgeton (24 July 1987)
On 24 July 1987, Bridgeton, a US-flagged, Kuwaiti-owned tanker under
US naval escort en route to Kuwait, hit an Iranian-laid mine in the
international shipping channel approximately 18 nautical miles (33 km)
south-west of the Iranian island of Farsi. The ship sustained extensive
damage. This was the very first voyage of such a reflagged vessel; its
CR96/12 - 29 -
route was highly predictable, because its extremely deep draft severely
limited where it could safely sail. Although Iran does not dispute that
the Bridgeton hit a mine, Iran denies responsibility for it (Iranian
Memorial, para. 1.95 at 39). We do not think this denial is credible (US
Exhibit 19 at 131) . We are prepared ta present compelling evidence
implicating Iran's responsibility in this mining, should the case go ta a
subsequent stage and make this necessary.
Acting in self-defense, the United States responded to this hostile use
of mines by sending mine counter-measures vessels to the Gulf to
neutralize this threat. The United States was joined in this effort by
Belgium, France, Italy, The Netherlands, and the United Kingdom (US
Exhibit 15).
2. US Capture of Iran Ajr (21-22 September 1987)
Two months later, on 21 September 1987, US helicopters observed an
Iranian landing craft, Iran Ajr, engaged in illegal mine-laying at night
near the Bahrain Bell, in an international shipping channel known to be
used regularly by US ships in the Central Gulf. This was a hostile
action. It posed a direct threat to the safety of US warships and other
US-flag vessels operating out of Bahrain. Accordingly, acting in
self-defence, two US helicopters operating from USS Jarrett engaged Iran
Ajr with machine-guns and rockets. When Iran Ajr resumed mine-laying,
the US helicopters re-engaged it, disabling it with rocket and
machine-gun fire, and thereby halting further mine-laying (US Exhibits
19, 20, 21 and 22).
The next day, on 22 September, US forces boarded Iran Ajr. Iran Ajr
was manned by regular Iranian navy personnel. Three Iranian crewmen were
CR96/12 - 30 -
found dead on the vessel. Twenty-six survivors were recovered from the
water and lifeboats. The survivors were transported to US naval ships
for medical treatment, and subsequently flown to Oman and released to the
International Red Crescent for repatriation. Nine armed Iranian-made
mines ready for deployment were found on the vessel. Nine more mines
were subsequently located in the waters off Bahrain; these mines were
neutralized by US mine counter-measures forces. Iran gave no notice to
the international community that these minefields had been laid, nor did
Iran set the mines to disarm when they broke loose from their moorings,
both of which were required by the Convention relative to the laying of
automatic submarine contact mines of 18 October 1907 (Hague Convention
No. VIII) (US Exhibits 20, 21, 22, and 24). The Court confirmed these
principles in the Corfu Channel case and the Nicaragua case (Corfu
Channel (United Kingdom v. Albania), Merits, Judgment, I.C. J. Reports
1949, and Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986)
On 22 September 1987, in accordance with Article 51 of the United
Nations Charter, the United States notified the Security Council of its
actions in self-defence against Iran Ajr (US Exhibit 20). The Islamic
Republic of Iran agrees that there was an engagement between Iranian and
US forces involving the Iran Ajr, but contends that the vessel was
"commercial and unarmed" and was not engaged in mine-laying (US Exhibit
22 at 20; Iranian Memorial, Exhibit 61). As in other instances, we
would be prepared to present compelling evidence, including physical
evidence, regarding this event, should that become necessary at a later
stage.
CR96/12 - 31 -
3. Iranian and US Armed Forces Exchange Fire on 8 October 1987
On 8 October 1987, three US helicopters, on routine night-time
patrol over international waters of the Gulf, were fired upon without
warning by three small Iranian naval vessels. In defending themselves
from this attack, the US helicopters returned fire ~lth rockets and
machine-guns. The three Iranian vessels were hit a~d sa~k. US patrol
boats were despatched to the scene and recovered six Ira~ian crewmen from
the water. Although all available medical care was re~àered, two of the
crewmen died. Once again, the Iranian survivors were repatriated and the
remains of the dead were returned to Iran. The Isla~:c Repablic of Iran
agrees that this event took place, but disputes the US description of it
(Iranian Memorial, para 1.99 at 40-41). We would be prepared to prove
the defensive nature of these US actions should tha: become necessary at
a later stage of this case.
4. Iranian Missile Strikes Sea Isle City (16 October 1987)
About one week later, on 16 October 1987, the ~s-~:a=ged Sea Isle
City was struck by an anti-ship cruise missile fireë t:· :ran (US Exhibit
11 at 329 and Exhibit 27) . Sea Isle City was one of :he !: Kuwaiti-owned
tankers that, at Kuwait's request, had been reflagged as a US vessel. At
the time of the attack, Sea Isle City was in Kuwait: :err:torial waters,
proceeding to an ail loading terminal from its ancr.crage - nautical miles
(13km) east of Mina al-Ahmadi. Eighteen seamen, ir.c:~d:~g the US
captain, were injured (US Exhibit 11 at 329). Altho~gt Iran does not
dispute that this attack occured, it denies culpabi::ty for it (Iranian
Memorial, para. 4.74 at 116). Should this case be heard on the merits,
the United States would present compelling evidence that Iran launched
CR96/12 - 32 -
this anti-ship cruise missile from a launching facility in the Faw
Peninsula that it had captured from Iraq in January 1986.
5. us Action Against Iranian Orr-sbore Platror.ms at Rostam
(19 October 1987)
As a consequence of these events, the United States Government
decided that it had to take appropriate action in self-defense, and that
the most appropriate target for this purpose was the Iranian off-shore
platform complex at Rostam. This decision followed careful assessment
which included the risks to civilians, incidental injury, collateral
damage, and the additional risks associated with possible attacks on
alternative targets. The Rostam complex was not then an oil producing
facility, but it had been a military outpost for several years. The
Islamic Republic of Iran denies that the Rostam complex was being used as
a military facility (US Exhibit 39); should the case proceed to the
merits, the United States would present compelling evidence that it was
so used.
First, the Rostam complex was the principal Iranian military outpost
in the south-central Gulf used to identify, track, and monitor ships'
movements, and assist in targeting innocent ships for attack. Second, it
had been used as a staging and supply facility for Iranian helicopter and
small boat attacks against innocent shipping during 1986 and 1987.
Third, it had in fact been used the month before to assist Iran Ajr in
its mine-laying operation off Bahrain. Using armed force in self-defense
against the Rostam complex was, in the view of the United States, clearly
necessary and proportionate, and no different than such actions against a
warship or ether military base (US Exhibit 29) .
CR96/12 - 33 -
At approxirnately 14:00 hours (local tirne) on 19 October 1987,
personnel on the Rashadat platforrn at Rostam were given loudspeaker
warnings in Farsi and English and were given time to depart. US forces
then fired upon and substantially destroyed the abandoned platform. The
Rashadat platform, which was already inoperative as an oil production
facility, was manned at the time by Iranian military personnel and
equipped with military armaments, radar, and communications deviees
(US Exhibits 27 and 29).
While searching the Rashadat platform, US forces noticed that on
another Rostam platform (Resalat) Iranian military personnel were manning
one of two twin 23mm guns, thereby threatening US forces. As a US team
approached the Resalat platform, the Iranian military personnel departed.
Subsequently, the US team boarded and searched the abandoned platform,
discovering a variety of equipment useful in supporting and coordinating
attacks on ships, including a marine-surface-search radar with a range of
48 nautical miles (89km) and communications equipment also was found.
The Resalat platform was also substantially destroyed to prevent its
continued use in supporting attacks on shipping in the Gulf (US
Exhibit 29) .
As in the Iran Ajr incident, the United States, pursuant to
Article 51 of the UN Charter, notified the UN Security Council of its
defensive actions against these military targets (US Exhibit 27).
5. Iranian-Laid Mine Damages USS Samuel B. Roberts (14 April 1988)
Violent encounters directly involving Iranian and US forces resumed
the following April. At approximately 17:00 hours (local time) on
14 April 1988, the guided missile frigate, USS Samuel B. Roberts, was in
CR96/12 - 34 -
international waters in the vicinity of the Shah Allum Shoals, returning
to Bahrain after escorting US merchant vessels in the Gulf (US Exhibit 11
at 375-76, US Exhibit 18, and US Exhibit 25). Lookouts on the ship had
recently spotted three mines lying perpendicular to the ship's course,
about 700 yards (650 metres) away. When the ship tried to back out of
the mine field, it struck a mine which had been set deeper than the rest
and was not visible. Ten US sailors were injured, one seriously. The
ship was severely damaged and almost sank (US Exhibit 15, US Exhibit 23
at 44, and us Exhibit 26).
Examination of the mines remaining in the water established
conclusively that they were Iranian-made (SADAF-02) contact mines,
identical to the mines captured from Iran Ajr on 21-22 September 1987.
The mines cleared from the area where USS Samuel B. Roberts was struck
were not encrusted with marine growth - proof that they had been laid
recently. These mines were laid in an international shipping channel
used frequently by US warships as well as innocent merchant ships. Once
again, contrary to well-established principles of international law
(including Hague Convention Number VIII of 1907 Relative to the Laying of
Automatic Submarine Contact Mines) (US Exhibit 24) , no notice had been
given to the international community that these minefields had been laid,
nor were the mines set to disarm when they detached from their moorings.
Although the Islamic Republic of Iran does not dispute that USS Samuel B.
Roberts hit a mine, it denies responsibility for it. We would prove
these matters with compelling evidence should that become necessary in a
later stage of this case.
CR96/12 - 35 -
7. US Actions Against Iranian OEE-shore PlatEor.ms at Sirri and Sassan
(18 April 1988)
The United States Government determined that the most appropriate
lawful targets in self-defense, following USS Samuel B. Roberts' hitting
of the Iranian-laid mine, would be the platforms having military
eguipment and garrisons at the Iranian off-shore oil complexes at Sirri
(located l9 nautical miles (35km) south-west of Sirri Island) and Sassan
(located 3.5 nautical miles (6km) north of the Abu Al Bu Khoosh oil field
owned by the United Arab Emirates). Like the Rostam platforms, the
platforms targeted by the United States at Sirri and Sassan were being
used as military facilities and were manned by military personnel (US
Exhibit l9 at l39, 25, 26, and 33; Iranian Memorial, Exhibit 80 and 89).
In addition to identifying, tracking, monitoring, and targeting innocent
ships for attack, these platforms served as staging bases and supply
bases for the Iranian helicopters and small boats used in such attacks.
They were also used to coordinate mine-laying in the path of US and other
neutral vessels.
On l8 April l988, after warning Iranian personnel and giving them
the opportunity to depart, US military forces substantially destroyed the
specifie platforms at Sirri and Sassan. Notably, to the best of our
knowledge and belief, no Iranian casualties were suffered during these
operations (US Exhibits l8 and 33; and Iranian Memorial Exhibit 80).
8. More Iranian and US Military Engagements on 18 April 1988
The engagements at Sirri and Sassan on l8 April were only part of a
wider pattern of hostilities on that day (US Exhibit l8 and US Exhibit 32
at l42-44) . While US armed forces were engaging the Sirri and Sassan
platforms, an Iranian helicopter and small boats attacked the SCAN BAY
CR96/l2 - 36 -
cil platform, located off Abu Musa Island, with Arnerican civilian workers
on board, and the US-flag supply ship Willie Tide in the Mubarak cil
field. US aircraft fired upon three Iranian small beats, sinking at
least one.
Thereafter, US forces were approached by the Iranian patrol gunboat
Joshan, which, after ignoring radio warnings, fired a missile at uss
Wainwright (US Exhibit 33 at 57). Within the hour, an Iranian F-4
fighter plane streaked toward USS Wainwright in a threatening manner. In
response, US forces returned fire, sinking the Iranian gunboat and USS
Wainwright fired upon and hit the Iranian F-4, causing it to retreat (US
Exhibit 32 at l44) .
Two Iranian frigates were then detected departing from the Hormuz
anchorage, proceeding south towards the northernmost US Navy Surface
Action Group. The first frigate, Sahand, was taken under fire by USS
Strauss when it closed to within missile range and was subsequently sunk
by aircraft from a US aircraft carrier (US Exhibit 32 at l44) . The
second frigate, Sabalan, after directing anti-aircraft fire at the US
aircraft, was immobilized by a single bomb dawn its stack (US Exhibit 32
at 144). After this ship was immobilized, the US Navy terminated its
attack, refraining from sinking the vessel (US Exhibit 32 at 145) .
Once again, the United States, in accordance with Article 51 of the
United Nations Charter, immediately notified the United Nations Security
Council of these actions (US Exhibit 26).
The US actions against Sirri and Sassan off-shore platforms were
part of a long day of military confrontations between Iranian and US
forces. The Islamic Republic of Iran disputes the defensive nature of
the US actions; it generally does not dispute that the military
CR96/12 - 37 -
encounters of 18 April 1988 occurred, or that the platforrns were
destroyed (US Exhibit 40; Iran's Memorial at 118-119). Should it become
necessary at any later stage, we would present evidence proving that the
platforms were indeed to support attacks against both commercial and
military vessels in the Gulf.
9. Iranian and US Mïlitary Engagements 2-3 July 1988
There was a final series of military encounters involving Iranian
and US forces during the first days July of 1988. On 2 July 1988,
USS Elmer Montgomery responded to a distress signal from a Danish tanker
under attack by Iranian small boats. After USS Elmer Montgomery
approached and fired a warning shot, the Iranian small boats stopped
their attack on the Danish tanker. However, the Iranian beats regrouped
and made repeated, deliberate attacks on USS Elmer Montgomery. USS Elmer
Montgomery returned fire in self-defence, sinking several of the Iranian
gunboats (US Exhibit 15). The Islamic Republic of Iran apparently does
not acknowledge this engagement.
These military engagements between Iran and the United States
continued the next day. Most regrettably, on 3 July, in the course of
these events, an Iranian civilian airliner was shot down by USS Vincennes
in the mistaken belief that it was a hostile military aircraft. As yeu
know, the United States immediately offered ex gratia compensation to the
families of the passengers and crew who were killed. On 22 February
1996, the United States and the Islamic Republic of Iran settled the case
which arase out of this tragic incident.
CR96/12 - 38 -
V. CONCLUSION
Mr. President and Members of the Court. We have shown here, and in
our earlier submissions to the Court, that the measures taken by the
United States on which this claim is founded were not isolated actions
aimed at Iranian economie installations, as the Islamic Republic of Iran
would have you believe. Rather, these were but two events in a series of
hostile military encounters involving Iranian and US forces between July
1987 and July 1988.
Iran does not dispute that a series of hostile engagements took
place between Iranian and US forces. The specifie deta~ls surrounding
these engagements, including those involving US actior.s against Iranian
off-shore platforms, are often in dispute. However, the Court does not
need to address these factual disputes, which would ir.volve lengthy and
complex evidentiary proceedings, in arder to uphold the US preliminary
objection. The facts that are not in dispute show that this Court does
not have jurisdiction in this case. These facts show that the US actions
involving the off-shore platforms were part of a ser:es of hostile
encounters between Iranian and US armed forces, which occ~rred during the
course of a major international conflict. As such, they are wholly
outside the scope of the 1955 Treaty, and are governed by rules and
instruments of international law that do not fall w~th:r. the jurisdiction
of the Court in this case.
Should the Court proceed ta the merits in this case. it would be
called upon to determine complex legal and factual ccr.troversies
regarding these hostile engagements. Was the Islamic Repablic of Iran
responsible, as the United States contends, for the ur.lawful attacks on
CR96/12 - 39 -
the US tankers Bridgeton and Sea Isle City, and the guided missile
frigate USS Samuel B. Roberts? Were the United States responses to
these events consistent with the requirements of the law of armed
conflict and self-defence? None of these issues fall within the scope of
the 1955 Treaty, which is the sole basis invoked by the Islamic Republic
of Iran for jurisdiction in this case.
Mr. President and distinguished Members of the Court, this completes
my presentation. I thank you for your attention. Next, my distinguished
colleague, Professor Andreas Lowenfeld will, with the Court's permission,
set forth our views as to why the 1955 Treaty provides no basis for
jurisdiction. But, may I suggest that this might be a convenient time to
break for coffee.
Thank you, Mr. President.
The PRESIDENT: Thank you very much, Commander Neubauer. The
hearing is suspended for a break of 15 minutes.
The Court adjourned from 4.15 to 4.30 p.m.
The PRESIDENT: Please, be seated. I now give the floor to
Professor Andreas Lowenfeld.
Professor LOWENFELD: Thank you, Mr. President. Mr. President,
Members of the Court, may it please the Court. This is my first time
before you, and it is an honour and privilege to appear here after all
the blood and guts and so on that you have just heard.
CR96/12 - 40 -
Introduction: The Importance of Jurisdictional Concerns
I want to begin by talking about the functions of the Court and
emphasizing the importance that jurisdictional concerns have in the
Courts' place in the community of nations. I can do no better than by
quoting from Sir Gerald Fitzmaurice, who graced this hench for more than
a decade, and who has written an elegant series of essays about the
Court. I am quoting particularly from volume 2 around pages 513 and
following (Sir Gerald Fitzmaurice, The Law and Procedure of the Interna-
tional Court of Justice, Vol. II (1986)).
"It is rare indeed [he writes, at pp. 513-14] for a
State, whether by treaty or by unilateral declaration, to
assume an unlimited jurisdictional obligation ... If, by a
process of interpretation, the scope of the obligation is
widened beyond its inherent and natural limits, or those
imposed by the State itself, so as to embrace matters
extraneous to what was covered by the consent given, it is
clear that the State will find itself saddled with an
obligation to submit disputes to arbitration or judicial
settlement which it had never intended to assume. Thus the
matter resolves, or may appear to resolve itself into the
familiar question of the liberal or restrictive interpretation
of arbitral clauses. [I think he means compromissory clauses
generally.] Yet [Fitzmaurice continues] it should be evident
that neither a deliberately liberal nor a deliberately
restrictive interpretation of such clauses can be justified.
The first is unfair to one party (usually the defendant State)
by imputing to it a consent which it may not really have
intended to give, or realized it was giving; the second [that
is the deliberately restrictive] is unfair to the ether party
(usually the plaintiff State) by depriving it of a means of
recourse the benefit of which it was entitled to expect under
the clause in question. But [and this is the point I want to
emphasize] while neither [interpretation] is justified, it is
safe to say that the first, though it may appear superficially
to promote the ideal of an enlargement of international
arbitral and judicial jurisdiction, involves by far the greater
long-term dangers for the standing and prestige of this
jurisdiction - since nothing undermines confidence in the
process of international adjudication so quickly and completely
as the feeling that international tribunals may assume
jurisdiction in cases not really covered by the intended scope
of the consents given by the parties."
CR96/12 - 41 -
Perhaps I can read the last phrase again:
"nothing [says Fitzmaurice] undermines the confidence in the
process of international adjudication so quickly and completely
as the feeling that international tribunals may assume
jurisdiction in cases not really covered by the intended scope
of the consents given by the parties".
Fitzmaurice goes on to address the argument that because interna-
tional jurisdiction is limited by the necessity of consent, and because
international adjudication is a good thing, the Court should give the
maximum scope to any given consent that it can be made to bear. The
argument is plausible, he says, but it is based on a mistaken premise.
It is not the case that jurisdiction exists, subject to limitations for
the Court to construe. On the contrary, without the initial consent
there would be no international jurisdiction, and no need for
limitations.
"Consequently, jurisdiction ought at the very least not to
be assumed in cases in which there is room for any serious
doubt as to whether consent was given, and whether it covers
the dispute."
Fitzmaurice goes on to propose an even higher standard - that
jurisdiction ought only to be assumed
"if it is quite clear that the parties . have expressed
themselves in such terms . that . . the view that they
did not consent cannet, in law be reconciled with the term
used, or the acts performed, or the behaviour manifested".
I think, Mr. President, we need not choose between these two
standards. However the case before you is viewed, there can be no
denying that there is "room for serious doubt" about whether consent was
given by the United States to hear this dispute about the use of force in
the Gulf. My colleagues and I will be demonstrating to you that there is
much more than serious doubt - indeed that there is no room to believe
that consent to adjudication of this kind of dispute was given by the
CR96/12 - 42
United States. But you need not agree fully with Fitzmaurice's proposi-
tion that the onus of proof is on the plaintiff State, to conclude that
this case is not one in which the Court would be justified in reaching
the merits. As the Court said in the Ambatielos case,
"in the absence of a clear agreement between the Parties in
this respect, the Court has no jurisdiction to go into .
the merits of the present case". (I.C.J. Reports 1952, p. 28
at p. 39)".
II
Specifie Jurisdiction and the Principle of Consent
I want in a few minutes to turn to the Treaty of Amity of 1955 on
which Iran bases its claim - its only claim - to your jurisdiction in
this case. Before I do, however, I want to make a more general point,
which I think that a comparison with private international law will help
to clarify. I refer to the distinction between general and specifie
jurisdiction of courts.
Under private international law, now embodied in a series of
conventions - notably the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters of 1968, and the
companion Convention signed in Lugano - an individual can be sued in the
State of his or her domicile on any claim, or almost any claim, no matter
where the events giving rise to the claim occurred; the same is true
with respect to corporations or similar entities at their principal place
of business or siège social. That is general jurisdiction. Both
individuals and corporations are also amenable to suit in other places,
but typically only on claims arising from or linked to those places. A
corporation may be sued, for instance, in the courts of a State where it
CR96/12 - 43 -
maintains a branch, as regards a dispute arising out of the operations
of the branch, to use the words of the Brussels and Lugano Conventions.
Similarly a person - natural or juridical - may be sued in tort in a
State other than its domicile, where the harmful event occurred. A
number of other links or contacts between activity and amenability to
suit are widely accepted and understood, for example with contracts at
the place of performance and in sorne States where the contract was
entered into. For each of these links, there is specifie jurisdiction,
that is the defendant may be brought before a court on sorne claims, but
not on others. Finally, there is jurisdiction by agreement or consent,
that is jurisdiction by virtue of a forum selection clause.
Forum selection clauses, as you know, are virtually always upheld in
accordance with their terms (with exceptions one need not go into, family
matters and insurance matters for instance) (Article 17 of the Brussels
and Lugarno Conventions spell that out and the law of most states
confirms that) . So suppose Sr. Bellini, an Italian seller, and
Mr. Davis, an English buyer, make a contract for the sale of leather
gloves, and the contract contains a clause stating that "all disputes
arising out of or related to this contract, if not amicably settled, will
be resolved in the Commercial Court in Milan, well, in that case the
court will have jurisdiction in an action by Sr. Bellini against
Mr. Davis growing out of the contract, even if Mr. Davis never set foot
in Italy. But if Sr. Bellini sought to bring Mr. Davis before the court
in Milan on a claim arising out of an automobile accident or libel, the
court in Milan would have no jurisdiction. The forum selection clause
that is to say the consent to jurisdiction is limited to the subject
matter of the contract between them.
CR96/12 - 44 -
In public international law, and in particular in regard to the
powers of this Court, there is no analogous concept to comprehensive
general jurisdiction at the defendant's domicile or siège social. But
there is an analogous concept of specifie jurisdiction by consent, either
with a particular dispute that has arisen or by a forum selection clause
in treaties dealing with particular subjects. That of course is the
thrust of Article 36(1) of the Statute of the Court, in contrast to the
broader consent authorized (but not required) by Article 36(2) of the
Statute, the famous optional clause.
What Iran has tried to do in the present case is to convert the
consent to specifie jurisdiction that the United States (and Iran) gave
in the forum selection clause contained in the Treaty of Amity- i.e., a
36(1) consent- into a consent to general jurisdiction, i.e., a 36(2)
consent. Iran's application asks yeu to consider claims and responses
focused on the law of armed conflict, including the constituent elements
of that law - the right of self-defense, the principle of neutrality, and
the principle of proportionality and so on - it asks you to consider
those kinds of claims on the basis of a consent to jurisdiction limited
to the subject matter of a treaty focused on commerce and investment in
peacetime. This effort, Mr. President, must fail, for the same reason
that, in my hypothetical case, the attempt of the Italian plaintiff to
bring a libel action on the basis of a clause in a contract concerned
with the sale of gloves must fail. Jurisdiction founded on consent
cannet be expanded beyond the terms of the consent as I read earlier.
Iran's attempt to found jurisdiction of its claim concerning the law of
armed conflict on the Treaty of Amity, Economie Relations and Consular
Rights can only be characterized, with all respect, as an invitation to
CR96/12 - 45 -
the Court to convert itself from an institution whose standing and
legitimacy rest upon constant attention to the expressed consent of its
members to a quite different institution, one that I would not even dare
to characterize.
III
The Treaty of Amity: Consent to Jurisdiction and Standards of Conduct
I want now to turn to the Treaty of Amity, Economie Relations and
Consular Rights signed by representatives of the two Parties in August of
1955. The first thing that strikes one about this treaty is how routine
and how ordinary it is. The Treaty of Amity is not a peace treaty, or a
mutual assistance treaty, or a security pact. There were sorne of these
kinds of agreements between Iran and the United States in the past, but
as I need not tell you they have long since been overtaken by events. In
fact, if I may use an American colloquialism, the Treaty of Amity was an
off-the-shelf document, practically the same as sorne 20 or so Treaties of
Friendship, Commerce, and Navigation concluded by the United States in
the first two decades following World War II - from Belgium to Yemen if
one looks at the alphabet, from China to Togo if one looks at chronology.
The Iran-United States Treaty was number 13 for the United States since
World War II.
The subjects are always the same, nearly always in the same
sequence, and (in their English version) in almost the same words. Under
the national treatment clauses, each State party undertakes to grant ta
the nationals, companies, products, and vessels of the other party the
same treatment that it grants to its own nationals, companies, products
and vessels. Under the Most Favoured Nation clauses, each State party
CR96/12 - 46 -
undertakes to grant to the nationals, cornpanies, products, and vessels of
the other party treatrnent no less favourable that the treatrnent accorded
to the nationals, cornpanies, products, and vessels of any Third state.
These undertakings apply to entry and sojourn within the territory of
either state party, and usually (including the Iran-US Treaty) to the
right of establishment of cornpanies of one country in the territory of
the other, coupled with the right to own, buy, or lease property, and
equal treatrnent in respect to taxes and comparable fees or charges.
There are also, as you know, provisions concerning expropriation of
property, right of access to courts, transfer of funds, and rights of
ernployment in the receiving country by senior personnel of cornpanies of
the sending country. Sorne of the FCN treaties contain provisions on
social security and workers compensation, the Iran-US treaty does not.
Others, including the Iran-US Treaty, contain provisions on privileges
and irnmunities of consular officers. The entry on Treaties of
Friendship, Commerce and Navigation in the Encyclopedia of Public
International Law surns up the content and purpose of such treaties as
follows:
"According to accepted principles of international law the
host State has the right to regulate the legal situation of
aliens and foreign cornpanies within its territory. The aim of
treaties of friendship, commerce and navigation is to extend
the rights of those aliens and foreign cornpanies who are
nationals of the contracting parties beyond the minimum
required by international law and to clearly define their
limits." (Blurnenwitz, Encyclopedia of Public International
Law, Vol. 7, p. 485 (1984) .)
More significant for present purposes, the FCN treaties, including
the Treaty of Amity between Iran and the United States, provide
substantive legal norrns to be applied by the chosen forum to disputes
that may arise under the treaties. Focusing on the Iran-US Treaty, if
CR96/12 - 47 -
one party alleges that the ether party expropriated property belonging to
its nationals, the Court - this Court - can look to Article IV(2) of the
Treaty; if one party alleges unequal tax treatment by the authorities of
the ether party, the Court can look to Article VI, and can rule on
whether or not the disputed tax cornes under one of the exceptions in that
article; if a dispute arises concerning the administration of customs
regulations, the Court can look to Article IX . . and so on. In short,
the Treaty lays down standards - legal standards - by which the chosen
forum can judge a claim brought under the Treaty. In contrast, it is
evident that a court asked to judge the claim brought in the present case
- involving the laws of armed conflict, self-defense, and so on - could
find no guidance whatever in the Treaty of Amity. Why? Because neither
party had any intention to subject these types of issues to the
jurisdiction of the chosen forum - or indeed any forum, since they had
not negotiated, let alone reached agreement about them. I might add that
in addition to adjudication before this Court, the parties agreed to
afford each other adequate opportunity for consultation with respect to
"any matter affecting the operation of the present Treaty".
(Article XXI(l)). But their only mention of issues of peace and security
and armed forces and so on is in Article XX, which says the Treaty shall
have no application. Either way one looks at it, whether from the point
of view of the scope of the consent to jurisdiction or from the point of
view of the standards to be applied in interpretation of the Treaty,
there is no fit between the Treaty and the claims here asserted. There
is, in short, much more here than the "serious doubt" in Judge
Fitzmaurice's formulation. There is quite simply no reason at all to
suspect, let alone to believe or conclude, that the two parties agreed to
CR96/12 - 48 -
subject controversies about armed force, attacks on shipping and use of
oil platforms in the Gulf, to adjudication in this Court pursuant to the
Treaty of Amity.
IV
The Jurisdiction Clause in tbe Treaty of Amity
As I have said, the modern FCN treaties were primarily an American
policy initiative. It is striking that the United States draft from
which all the negotiators worked contained a compromissory clause
selecting the International Court of Justice as the residual forum for
settling disputes, without any reservation comparable to the reservations
that the United States (and others) attached to its declaration under
Article 36(2) of the Statute of the Court. How could it be that in its
declaration under the optional clause, the United States made the famous
Connally Reservation, designed to withhold from its consent to the
jurisdiction of the Court disputes with regard to matters within the
domestic jurisdiction of the United States as determined by the United
States, but made no similar reservation or exclusion from the World Court
clauses in the FCN treaties which clearly dealt with matters within
internal jurisdiction, like taxes and labour and sa on? Again, how could
it be that France, which had made a reservation toits 36(2) declaration
in almost identical terms to that of the United States, also agreed, in
its Convention of Establishment with Iran of 1959, to a clause accepting
the jurisdiction of the Court without any reservation?
CR96/12 - 49 -
Robert Renbert Wilson, who is the author of one the leading books on
United States commercial treaties, raises that question. It surely
occurred to others before and certainly before it occurred to me, and he
proceeds to answer. He says:
"The omission of reservations [from the FΠ::reaties] was
not inadvertent. When the first of the post-Wor:è War II trea
ties was under consideration, a subcommittee of ::he United
States Senate raised the question of whether the =ompromissory
clauses in it were consistent with the conditio~s upon which
the Senate had agreed to acceptance of the Opt~o~al Clause in
the Court Statute. The Department of State . . suggested
that provisions of commercial treaties were, in general,
familiar, that there were numerous Court decis~o~s~nterpreting
them. It was one thing to commit the United S::a::es toward
particular foreign States on this limited subje=:: na::ter. It
might be going much further, the Department of S::a::e memorandum
suggested, to commit the United States in adva~ce ::o aèjudicate
'any question of international law' in relatio~ ::o a large
group of States, that is those also accepting t~e Opt~onal
Clause."
The Senate Committee accepted the argument and approveè the treaty before
it which happened to be with the Republic of China as ~o:el as sorne 20
other treaties with the same wording, including the 7reaty of Amity here
before you.
The full memorandum submitted to the Senate by ~..;;assador
Charles E. Bohlen on behalf of the State Department appears in our
Exhibit 52 at pages 29-30. The excerpt from Profess~r~~lso~·s book that
I have read, I think, accurately reflects the memora~=~~ and the
discussion in the Senate Committee, but at the risk cf sorne repetition I
want to read one paragraph of the memorandum, whic~ : ::~~nk will tie
together this part of my presentation with the first ~art of my presenta-
tion:
"The compromissory clause of the treaty v:i:: China .
is limited to questions of the interpretation or application of
this treaty: i.e., it is a special, not a gene~a2co~promissory
CR96/12 - 50 -
clause. It applies to a treaty on the negotiation of which
there is voluminous documentation indicating the intent of the
parties. This treaty deals with subjects which are common to a
large number of treaties, concluded over a long period of time
by nearly all nations. Much of the general subject matter -
and in sorne cases almost identical language - has been
adjudicated in the courts of this and ether countries. The
authorities for the interpretation of this treaty are,
therefore, to a considerable extent established and well known.
Furthermore, certain important subjects, notably immigration,
traffic in military supplies, and the 'essential interests of
the country intime of national emergency', are specifically
excepted from the purview of the treaty. In view of the above
[Bohlen concludes], it is difficult to conceive how Article
XXVIII [which was comparable to Article XXI of the Treaty
before us] could result in this Government's being impleaded in
a matter in which it might be embarrassed."
That is the end of the section of the memorandum that I want to
quete, the whole memorandum is in the exhibit. I submit that this
passage completes the circle necessary for this Court's exercise of its
compétence de la compétence. The Court's jurisdiction depends on
consent, in this instance the consent of the United States. Such consent
may be general, or it may be specifie or special. We have here a clear
record that, in Ambassador Bohlen's words, the compromissory clause is a
special, not a general clause. It confers special, and not general
jurisdiction on the Court, limited to the defined subjects of the FCN
treaty, and excluding those having to do with defence and security. Of
course the debate and explanation from which I have quoted concerned a
treaty between the United States and China but there can be no doubt that
once the question was settled between the United States Senate and the US
Department of State, the text of the forum selection clause remain the
same for all the ether FCN treaties, and all were governed by the same
understanding, including the Iran-US Treaty here invoked.
CR96/l.2 - 51 -
v
The Relevance of the Nicaragua case
Now I want to turn just briefly to the Nicaragua case, in so far as
it is relevant to the present controversy. Please be assured that I
have no intention to revive that controversy, either in respect of the
United States' policy, or in respect of the Court's decisions. I trust
you will allow me, nevertheless, to take a purely technical look at the
Court's approach to the question of the effect of the World clause in the
FCN treaty. You will hear more about the Nicaragua case tomorrow from
Mr. Murphy. I want to make just one point today.
I believe it is important for present purposes to note that the
claim by Nicaragua that the World Court clause of the Nicaragua-US Treaty
supported the jurisdiction of the Court was raised as an afterthought by
counsel for the Applicant [Nicaragua] , after it became clear that the
claim based on the coincidence of two unilateral declarations pursuant to
Article 36(2) and Article 36(5) of the Statute was running into trouble,
and what did the Court do? Well, the Court focused on the contention by
the United States that this claim of jurisdiction had come too late (you
will find that in the jurisdiction phase, paras. 78-80), and on the
relation of the claim of jurisdiction under the bilateral treaty to the
so-called multilateral treaty reservation contained in the 1946
declaration by the United States under the optional clause (and that
interestingly enough shows up in the merits phase, paragraphs 42 and
following) and the result was not only a confusion in the Court's
Judgment on the merits, as Judge Oda pointed out in his separate opinion
in the Merits phase. More important for present purposes, the Court
CR96/12 - 52 -
never examined, so far as appears, the character and scope of the
compromissory clause of the FCN Treaty. The Court did not, in other
words, consider the points that I have been making, the distinction
between general and specifie jurisdiction and the express narrow focus of
the clause, as shawn in the Bohlen memorandum and the Senate debate. My
analysis, I submit, is not foreclosed by anything dec;..ded, or so far as
appears, even discussed, in the Nicaragua case. If the Court finds my
analysis persuasive, it is free to follow it.
I am not suggesting a narrow distinction betwee~ the two cases, in
the manner of a common law barrister; I am suggesting that it is appro-
priate for the Court to take a fresh and in-depth look at how FCN
treaties - focused on protection by receiving States cf the rights of
nationals of sending States, and excluding essential security interests -
fit in with a broad claim of jurisdiction of this Court. The few
paragraphs in the Court's Judgment devoted to this ~ùest;..o s~ggest that
no such in-depth look was taken on this question in the ::icaragua case,
and, I submit, confirm the wisdom of the drafters of ~rt;..cl 59e of the
Statute of the Court.
I may add that I have had the pleasure of read;..~ ~~dge
Shahabuddeen's book, just off the press, on Precede~: ~'- :he World Court
(1996), and I think what he says at pages 122 to 1:- .,,,.h;..ch begins "case
law is not statute law", is very appropriate in this co::1text.
VI
The Claim for "Amity" as a Legal Standard
Finally, Iran in the present case makes an eve~ broader claim under
the Treaty of Amity: Amity means friendship, any act that is not
CR96/12 - 53 -
friendly constitutes a breach of the treaty, and anything that breaches
the treaty is actionable and justiciable before this Court. With
respect, it is a mind-boggling claim.
If the test were, as Iran suggests, there would be no limits at all
on the Court's jurisdiction. Consider just the most recent relations
between Iran and the United States. The United States has imposed
restrictions on trade and financial transactions by its nationals with
Iran, and urges its European allies not to permit their companies to
invest in oil exploration in Iran. Would these actions fall within the
Treaty? The leaders of Iran persist in pronouncements that the United
States embodies the Great Satan. Is that an expression of sincere
friendship? The United States accuses Iran of sponsoring terrorist
activities. Would such an accusation fall within the Treaty? True or
false? Are all these conflicts, accusations, even crises, subject to
adjudication by this Court?
Iran contends that there is a significant difference between the
Treaty of Amity and most other FCN treaties because the expression of
sincere friendship, which appears somewhere in all these treaties,
appears in Article I of this Treaty rather than in the preamble. It
offers the explanation - which may or may not be correct - that in 1955
the Shah, returning from exile and still shaky on his throne, wanted a
little extra endorsement, and the United States negotiators said "why
not?". It may or may not be a correct interpretation, in fact, I have
checked sorne 30 other treaties of friendship or amity concluded by Iran
or Persia in the period 1905-1955. Most contain declarations of eternal
friendship or something like it in Article I; a few have such recitals
CR96/12 - 54 -
in the preamble. Thus the hypothesis of the extra boost for the Shah may
not be true at all, and the explanation may lie simply in the routine
practices of the Iranian Foreign Office. Either way the significance, I
submit, is negligible.
As a prediction, Article I worked well for two decades, and there-
after, as I need not remind you, turned out to be spectacularly wrong.
But the idea of building an obligation on Article I - an obligation
linked to the compromissory clause - would make all the rest of the
treaty superfluous, and would convert the compromissory clause into an
all-purpose dispute settlement accord: it would, in other words, change
Article XXI (2) from a special to a general jurisdiction agreement.
Perhaps the world would be a better place if all States concluded
treaties that provided:
"Whenever a high contracting party considers that the
other high contracting party has committed an insincere or
unfriendly act, it may apply to the International Court of Jus
tice for relief."
Surely the world we live in is not that kind of a world, and there is no
evidence that countries concluding Treaties of Friendship or Treaties of
Amity sought to create such a world.
In their reply Observations, counsel for Iran themselves realize the
extraordinary breadth of their claim under Article I. They now say, in
effect:
"OK, if we have to fit into a commercial mould, we can do
it, because the platforms were supposed to extract oil, oil is
a commodity, and commodities are commercial. Moreover, the
platforms have to do in sorne way with the aftermath of the
seizure of the Anglo-Iranian Oil Company and the restructuring
of Western interests in Iran through establishment of the
Consortium and its relationship to the National Iranian Oil
Company."
Well, with respect, none of this has anything to do with the present
CR96/12 - 55 -
case. Sorne of the claims against NIOC (National Iranian Oil Company)
arising out of the Iranian Revolution have been heard - properly heard
not far from here by the Iran-United States Claims Tribunal. Those are
the commercial claims, having to do with supply contracts, inventories,
letters of credit, and so on. Adjudication or arbitration of those
claims is of course supported by an elaborate forum-selection - indeed
forum-creation - agreement, that is the Algiers Accords of January 1981.
But whatever their normal function, the oil platforms involved in the
present case were being used, as you have heard, from
Commander Neubauer, for guiding armed attacks on shipping in the Gulf -
hardly a commercial activity. To build a jurisdictional basis for a
controversy about the use of force in a war zone on the commercial
provisions of the Treaty of Amity and on the commercial uses to which the
platforms might have been put would, I submit, be to create a wholly
contrived, a wholly artificial basis of jurisdiction, inconsistent with
this Court's traditions and with the status of sovereign States
everywhere.
In this context, it may be illuminating to look at the Court's
recent Advisory Opinion in the Nuclear Weapons case. In that case, as
you will recall, the claim was made that human rights and environmental
instruments informed the question of the lawfulness of the use of nuclear
weapons. Yes, the Court said, human rights and the environment might
well be adversely affected by the use of nuclear weapons. But the
standards by which to judge the use of nuclear weapons had to be "the
most directly relevant applicable law governing the question," i.e.,
"[the law] relating to the use of force enshrined in the United
Nations Charter and the law applicable in armed conflict which
regulates the conduct of hostilities, together with any
CR96/12 - 56 -
specifie treaties on nuclear weapons that the Court might
determine to be relevant" {para. 34) .
It follows, I suggest, that even if Iran•s characterization of the events
were correct, that is even if the attack by the United States Navy on the
platforms violated international law, "the most directly relevant
applicable law" would be the law of armed conflict - and surely not the
Treaty of Amity here invoked.
* * *
In their final fall-back, counsel for Iran reply to the preliminary
objections of the United States in effect as follows {pp. 70-71):
"The United States contends that the Treaty of Amity is
only about commercial relations, Iran says an attack on
commercial installations cornes under the Treaty. Therefore
there is a dispute about interpretation of the Treaty which
supports the Court's jurisdiction."
I submit that this kind of argument could be made with regard to any
challenge to the jurisdiction of the Court; acceptance of such an
argument would lead to complete elimination of the preliminary objection
phase of the Court's procedures. The correct procedure, I would have
thought, is to accept for purposes of a test of jurisdiction the factual
assertions made by the applicant, but not the legal characterizations.
Thus, for present purposes, the Court may accept - subject of course to
later challenge if jurisdiction were to be sustained - it may accept the
assertion on behalf of Iran that on a given date American warships fired
on Iranian oil platforms. But whether the acts of US forces implicate
commercial as contrasted with security interests is surely a legal
question for the Court to decide at the stage of preliminary objections.
Any ether approach, I submit, would be in emulation of the famous Baron
CR96/12 - 57 -
Munchhausen, who as you will recall, pulled himself out of a swamp by
tugging on his own bootstraps.
* *
*
Mr. President, my colleagues will go into sorne of the issues I have
raised in more detail tomorrow. For my part, I am content to leave you
with a quotation from Judge Nagendra Singh, your colleague for two
decades and President for four years. The passage I want to read cornes
from his Lecture entitled "The Court's Integrity and the Discharge of the
Judicial Function", published in his book The Role and Record of the
International Court of Justice. Commenting on the Aegean Sea Continental
Shelf case (Greece v. Turkey), I.C.J. Reports 1978, p. 28, he wrote:
"The Court's approach in this vital aspect of its function
[that is determining its jurisdiction] has shown the
flexibility necessary for it to adhere to the straight path of
pursuing the true will and intention of the litigants before
it. In this respect the Court has rightly moved in the
direction in which the will of the States has taken it. There
has been no display of a radical attitude by the Court in
pursuing 'progressive and developmental' aspects by extending
its jurisdiction at the cost of the overriding principle of
consent on which both the Court and the law it administers are
based. The Court has maintained its sense of integrity at
every step. This well-established approach of the Court to
respect the will and wish of the parties must help to inspire
confidence in the community that the Court has no intention to
examine and adjudicate on the merits of every case brought
before it, if it is shown to be against the clear desire of the
litigants as expressed in a treaty or agreement." (N. Singh,
The Role and Record of the International Court of Justice,
p. 179 (1989}.}
This wise and eloquent statement may serve as a guide to the present case
as well. I thank you for your attention.
CR96/12 - 58 -
The PRESIDENT: Thank yeu very much Professer Lowenfeld. Having no
more speaker in my list for this afternoon, the Court will new adjourn
and the hearing will resume tomorrow morning at 9.30 a.m.
The Court rose at 5.15 p.m.
CR96/l2
Public sitting held on Monday 16 September 1996, at 3 p.m., at the Peace Palace, President Bedjaoui presiding