Preliminary Objections submitted by the United States of America

INTERNATIONALCOURTOF JUSTICE
PLEADINGS,ORALARGUMENTS,DOCUMENTS

CASECONCERNINGTHE

AERIALINCIDENT OF 3 JULY1988

(ISLAMICREPUOFAMERICA).NITED STATES

VOLUMEII

COUR INTERNATIONALEDE JUSTICE

MEMOIRES,PLAIDOIRIESET DOCUMENTS

AFFAIREDE L'INCIDENTAERIEN
DU 3JUILLET1988

(RÉPUBLIQUEISLAMIQUED'IRAN c. ÉTATS-UNIS
D'AMERIQUE)

VOLUMEII The case conceming the Aerial Incident of 3 July 1988 (Islamic Republic of
Iran V. United States of America), entered on the Court's General List on
17 May 1989under Number 79, was removed fromthe List by an Order of the
Court of 22 February 1996, followingdiscontinuance by agreement of the Par-
ties (Aerial Incidentof 3 July 1988 (Islamic Republicof Iran V. UnitedStates of
America), 1.Cl Reports 1996,p. 9).
The pleadings in the case are being published in the followingorder:
Volume 1. Application instituting proceedings of the Islamic Republic of Iran;

Memorial of the Islamic Republicof Iran.
Volume II. Preliminary objections of the United States of America; Observa-
tions and submissions of the Islamic Republic of Iran on the preliminary
objections; Observations of the International Civil Aviation Organization;
selection of correspondence; SettIement Agreement.

Regarding the reproduction of case filesthe Court has decided that hence-
forth, irrespective of the stage at whiahcase has terminated, publication should
be confined to the wntten proceedings and oral arguments in the case, together
with those documents, annexes and correspondence considered essential to illus-
trate its decision. The Court has also specificallyrequested that, whenever tech-
nical1yfeasible, the volumes should consist of facsimile versions of the docu-
ments submitted to it, in the form in which theywere produced by the parties.
Accordingly, certain documents reproduced in the present volume have been
photographed from their original presentation.
For ease of use, in addition to the normal continuous pagination, wherever
necessary this volume also contains, between square brackets on the inner
margin of the pages, the original pagination of the documents reproduced. It is
to this pagination within square brackets that one should refer for al1 cross-

references within the textsthus published.
Neither the typography nor the presentation may be used for the purpose of
interpreting the texts reproduced.

The Hague, 2000.

L'affaire de l'lncidenl aériendu 3 juiflet 1988 (Républiqueislamique d'Iran
c. Efafs-Unisd'Amérique),inscrite au rôle générad le la Cour sous le numéro79
le 17 mai 1989, en a étérayéepar ordonnance de la Cour du 22 février1996 à
la suite du désistementpar accord des Parties (Incident aériendu 3 juillet 1988
(République islurniqued'Iran c Efafs-Unis d'Amérique), CI.1 Recueil 1996,
P 9).
Les piécesde procédure écriterelatives à cette affaire sont publiéesdans
l'ordre suivant:

Volume 1. Requêteintroductive d'instance de la Républiqueislamique d'Iran;
mémoirede la République islamiqued'Iran.Volume II. Exceptions préliminaires desEtats-Unis d'Amérique; observationset
conclusions de la République islamique d'Iran sur 1es exceptions prélimi-
naires; observations de l'organisation de l'aviationcivileinternationale ; choix
de correspondance; arrangement amiable.

Au sujet de la reproduction des dossiers, la Cour a décidé que dorénavant,
quel que soit le stade auquel aura pris fin une affaire, ne devront êtreretenus à
fin de publication que les piècesde procédure écrite et les comptes rendus des
audiences publiques, ainsi que les seuls documents, annexes et correspondance
considérés comme essentiels à l'illustration de la décision qu'elleaura prise. En
outre, la Cour a demandéexpressément que,chaque fois que les moyens tech-
niques le permettraient, les volumes soient composésde facsimilés des pièces
déposées devane tlle,en l'étatou elles ont été produitespar les Parties.
De ce fait, certaines des piècesreproduites dans la présenteédition ont été
photographiées d'aprèsleur présentation originale.
En vue de faciliter l'utilisationde l'ouvrage,outsa pagination continue habi-
tuelle, le présent volumecomporte, en tant que de besoin, entre crochets sur le
bord intérieurdes pages,l'indication de la pagination originale des pièces repro-

duites. C'est à ces référencesentre crochets qu'il faudra se reporter lors de tout
renvoi se trouvant dans les textes ainsi publiés.
Ni la typographie ni la présentation nesauraient êtreutiliséesaux fins de l'in-
terprétationdes textes reproduits.

La Haye, 2000. CONTENTS - TABLE DES MATIERES

Page
PreliminaryObjectionSubmitted by the UniteStates ofAmerica -
Exceptionpréliminairesprésentsar leEtatFUnis d'Amérique

INTRODUCTI OND SUMMARY .......................

PART1. STATEMEN OTFA~TS RELEVANTTO JURISDICTION .......
Chapter 1. Iranian attacks on merchant shipping during the Iran-Iraq
war threatened the freedorn of navigation and prompted the deploy-
ment of military forcesby vanous nations to th........
Chapter II. On 3 July 1988,Iranian gunboats and U.S. naval vessels
wereengaged in combat when an unidentified Iranian aircraft rapidly
approached the U.S. vesselsand, upon failure to respond to repeated
radio wamings, was shotwn .....................
ChapterIII.Once itbecame known that the aircraft shot down was a
civilian airliner, the United States investigated twith aident
tragedies in the future and sought to
view to preventing such
cornpensate the families of tvictimswhile Iran immediately
sought poIitical condemnation of the United States by the United
Nations and the InternationalCivil Aviation Organization
(ICAO) ....................................
Section 1. The United States immediatelyannounced its intention to
compensatethe familiesof the victimsof Iran Air Flight 655while
at the same time investigating the incident and taking steps to
avoidits recurrenc..........................
SectionII. TheGovernment of Iran did not approach the United
States either directly or indirectly, but rather immediatelysought
political condemnation of the United StatesUnited Nations
andICAO ...............................
Section III. The ICAO Council resolved to undertake an investiga-
tion of the incident for thee of taking steps to ensure safety
of civilaviati............................

Chapter IV. Iran, unsatisfied with the response of ICAO and the
United Nations tothe incident, filed suit before this Court on
17May1989 ...............................

PART 11.THE COURTHASAUTHORIT N THESEPRELIMINAR PYRO-
CEEDINGSTO UPHOLD THE OBJECTIONS OF THE UNITED STATESTO
THE COURT'S SURISDICTION .......................
PART 111.THECOURT DOESNOTHAVE JURISDICTIO UNDER ARTICL E4
OF THE CHICAGO CONVENTIO N N INTERNATION CILILAVIA-
TION .....................................

Chapter 1. The Chicago Convention and the ICAO Rulesclearlydistin-
guish between the ICAO Council's quasi-judicial functions under
Article 84 (for whichthere is a possibilityof appeal to the Court) andX CONTENTS- TABLEDES MATIÈRES

Page

its functions under other Articles regarding the irnplementation of
the Convention (for which no reviewby the Courtis provided) ... 94
Section 1. The ICAO Council, acting under Articles of the Chicago
Convention othen than Article 84, has the power and obligation to
deal with a broad range of potentially contentious aviation rnatters
involvingthe application of the Convention, without possibility of
reviewby theCourt ..........................
Section II. In carrying out its Article 84 functions, ICAO has devel-
oped detailed rules for the settlement of differences, which are
the exclusive basis for bringing Article 84 disputes before the
Council .................................

Section III.The ICAO Rules provide essentiaf protections to Con-
tracting States and to ICA0 as an Organization..........
Chapter II. The 17 March 1989 Resolution of the ICAO Council was
not a decisionof the Council within the meaning of Article 84 of the
Chicago Convention ...........................
Section 1. Iran did not invoke or otherwise rely on Article 84 of the
Convention in bringing the incident of 3 July 1988 before the
ICA0 Council .............................

Section II. Throughout the ICAO Council proceedings,neither Iran
nor the ICAO Council acted under the longstanding and exclusive
procedures prescribed for the consideration and decision of
disputesnder Article 84 of the Convention ............
Section III. The conclusion that this was not an Article 84 dispute
hasbeen confirrned by ICA0 ....................
Chapter III. Iran's attempt to evade the clear provisions of the Chicago
Convention would be highly prejudicial to the proper functioning of
ICA0 ...................................

Section1.The respect due a coordinate body of the United Nations
obligesthe Court to reject Iran's clairns...........
Section II. The "supervisory role" of the Court should not be used
in the manner suggestedy Iran ...................
Section IIIThe decision requested of this Court by Iran would frus-
trate the dispute-settlement regirneestablished in the Chicago Con-
vention and by ICAO, and wouid threaten the institutional
intregnty of ICA0 ..........................

PART IV THECOURT DOES NOTHAVE JURISDICTI ONDER ARTICLE14
OF THE 1971 MONTREAL CONVENTION FOR THE SUPPRESSION OF
UNLAWFU ACTS AGAlNST THE SAFETY OF CIVILAVIATION .....
Chapter 1. Iran has failed to satisfy the requirementthat it seek
to negotiate or to arbitrate before instituting proceedings in this
Court ...................................

Section 1. Iran had no justification for its failure to seek negotiations
or arbitration prior to resort to this C.............
Section II. The Court'priorrulings require a rnuch greater effort at
resolving a dispute than has been shown by Ir..........
Chapter II. The claims subrnitted by Iran have no connection to the
Montreal Convention .......................... XI

Page

Section 1. The terms of the Montreal Convention and its history
demonstrate that offenses referred to in that Convention relate to
the conduct of individuals, not to the actions of Statescivilnst
aircraft.................................
Section II. Subsequent practice in the application of the Montreal
Convention further establishes that the Convention does not apply
to the actions of States against civil aircraft.......
Section III. The Montreal Convention was never intended to address
the actions ofilitaïy forces engaged in active hostil.....

PART V. THETREAN OF AMITYPROVIDEN SO BASIS FOR JURISDICTION
IN THISCASE ................................
Chapter 1. In invoking the Treaty of Arnity in its Memonal, Iran is
transforming the dispute brought before the Court in its Application

into another dispute which is whollydifferent and much more expan-
sive in character.............................
Chapter II. The Treaty of Amity is wholly irrelevant to the dispute that
is the subject of Iran'sApplicati...................
Chapter III. Iran may not invoke the compromissory clause of the
Treaty of Amity because it has made no effort to resolve by diplo-
macy any disputes under the Treaty of Amit.............

Annex 1. Iranian attacks on innocent shipping during the Iran-Iraq war

Annex 2. U.S.issuance of NOTAMs regarding aircraft in the Gulf area
Tableof exhibils................................

Observations andSubmissionsof the Islamic Republof Iran onthe Pre-
liminary Objections- Observations et conclusionde la République
islamiqued'Iransurles exceptionspréliminaires

Chapter 1. General observations on the preliminary objecti....
Chapter II.The structureof thesobservations .............
PART 1. UNDERARTICLE79 OF THE RULES OF COURT, THE PRELIMI-
NARY OBJECTIONS SHOULD EITHER BEREJECTED OR DECLAREN DOT
TOPOSSESS AN EXCLUSIVEL PRELIMINAR CYHARACTER .......

Chapter 1. Article 79 (7) of the Rules authorizes the Court to order
further proceedings if the preliminary objections are either rejected
or declared not to possean exclusivelypreliminary characte...
Chapter II. Article 79 (6) is not relevant U.S.objections ....
Chapter III. The scope of the United States' consent to jurisdi.tion

PART II. FACTUAIL SSUESRELEVAN TO THE PRESEN PROCEEDINGS.
Chapter 1 The facts relating to the penod prior to the shoot-down of
Flight IR 655 ..............................

SectionA. The lslamic Republic has not expanded its cornplaint by
introducing background facts from the period pnor to the shoot-
down ..................................XI1 CONTENTS . TABLE DES MATIERES

Page
Section B.The relevance of the background facts to the shoot-down
of Flight IR 655 ...........................

(i) The non-neutral policy of the United States towards the
Islarnic Republic .........................
(ii) The role of U.S. military forcesin the Persian Gul......
(iii) Iranian forces acted in a non-aggressivemanner towards U.S.
forces ...............................
(iv)U.S. forces showed an aggressiveand hostile attitude .....
Section C. The relevance of the background facts concerning the
NOTAMs and the issue of civillmilitarycoordination .......

Chapter II .The shoot-down of Flight.IR 655 ..............
Section A .Events imrnediately prior to the shoot-down of Flight
IR655 .................................

(i) The week preceding the shoot-down ..............
(ii) The morning of 3 July 1988 ...................
Section B. The flight of IR 655 and the alleged warnings given by
the U.S.vessels ............................
Chapter III . Conclusions: the relevance of the facts relating to the
shoot-down of Flight IR 655 to the junsdictional issues in this
case ....................................

PARTIII .THE RELEVANT FACTS CONCERNING NEGOTIAT~ON AND THE
EMERGENC EF THE D~SPUTE FOLLOWING THE SHOOT-DOWN ....

Chapter 1. The crystallization of the dispute and the irreconcilable
nature of the Parties' positions.....................
Section A. Debates before the United Nations Security Council . .
Section 3. The debates before the ICA0 Council ...........

Chapter I. The refusal of the United States to negotiate with the
rIslarnic Republic .............................
Section A . OfficialU.S. documents evidencing the United States'
refusal to deal with the Islamic Republic on the matter ......
Section B. The Hearings before the DefensePolicyPanel of the U.S.
House of Representatives .......................
Section C. The Iran-U.S. Clairns Tribunaldid not afford an opportu-
nity to negotiate ............................

Chapter III. Developrnents after the liling of the Application .....
Chapter 1V. The limitations to the legal requirement of pnor negotia-
tions ...................................
Section A. The emergencein modern international arbitration of the
prior negotiations requirement and its ratio.............
Section B. The case law of the Permanent Court ...........
Section C .The debates at the Institut de droit international in 1956
for the suppression of the requirement of prior negotiations ...
Section D. The case law of the present Court coniïrms the inter-
pretation of the Permanent Court ..................
Section E. Concluding observations ..................XIV CONTENTS . TABLEDES MATIERES

Page
Section C. The operation of ICA0 would not be hampered by the
Court's accepting jurisdiction concerningthe dispute over Flight
IR655 .................................
SectionD . The integnty of ICA0 would be strengthened by granting
a right of appeal in this cas.....................
Section E. The United States has recognized that this kind of inci-
dent should be heard by the Court .................
SectionF .Conclusions .........................

PART V .THE JURISDI~~IO OF THE COURT ON THE BASISOF THE
MONTREA CLONVENTIO.N ........................
Chapter 1 . The conditions of prior negotiation and arbitration under
Article 14(1)of the Montreal Convention ..............
Section A. The condition of prior negotiation ............

(i) Pnor to the submission of the case to the Court the dispute
had been clearly defined .....................
(ii) Prior negotiations did not prove necessary in view of the
strong disagreement between the Parties ............
Section B.The condition of pnor arbitration .............
(i) The purpose and scope of international clauses requiring prior
recourse to arbitration ......................
(ii) The inapplicability of the prier arbitration clause in the case
under discussion .........................
Chapter II . The Montreal Convention is relevant to the facts upon
which the daims of the Islamic Republic rest .............

Section A .The expression "any person" used in Article 1 of the
Montreal Convention does not distinguish between a private indi-
vidual and a State agent........................
(i)The text of the Montreal Convention .............
(ii) The preparatory works .....................
(iii) The international practice bears out the interpretation of
Article i of the Montreal Convention set out above .....
(iv) Conclusions as to Article 1 ...................
Section B. The practice followed by ICA0 is not germane to the
question whether the Montreal Convention is applicable to the
present dispute ............................

(i) The lack of legal relevance of the "subsequent practice"
referred to by the United States.................
(ii) The discussions in ICA0 on other aenal incidents ......
(iii) The irrelevance of ICAO'ssuggestions for new agreements or
amendments to existing agreements ..............
Chapter III. The Montreal Convention and international armed con-
flict ....................................
Section A . At the time of the shoot-down of Flight IR 655 the
United States and the Islamic Republic were not engaged in an
international armed conflict .....................
(i) The factual aspects of the issu.................
(ii) Legal considerations ....................... CONTENTS - TABLE DES MATIÈRES xv

Page
Section B. Even assuming that the United States and the Islamic
Republic were engaged in an international armed conflict, quod
non, the Montreal Convention was nevertheless applicable . . . .

PART VI. JURISDICTION UNDER THE TREAT YF AMI?Y . . . . . . . . .

Chapter 1. The United States is precluded from objecting to the Treaty
as a basis of jurisdiction . . . .. . . .. . . . . . . .. .: . . . . .
Section A. The Treaty remains in force between the Parties .. . . .
Section B. The Islarnic Republic is not barred from invoking the
Treaty .................................

Chapter II. The Islamic Republic has not changed the nature of the
dispute by invoking the Treaty . . . .. . . . .. . .. . . . . . . ..
Section A. The dual nature of the Islamic Republic'sclaims . . . .

(i) The claims based on the illegal use of force by the United
States . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) The claims based on illegal interference with the Islamic
Republic's commerceand navigation . .. . . . . . . . . . . .
(iii) The appropriateness of the Islamic Republic'ssubmissions . .
Section B. The United States' admission as to the relevance of the
background facts . . . .. .. . . . . . . . . . . . . . ... . . .

Chapter III. The Treaty of Amity is directly relevant to the subject-
matter of the dispute . . . . . .. . .. . . . . . . . .. . . .. . . .
Section A. The existenceof a dispute over the Treaty'sinterpretation
or application . .. . . .. . . . . .. .. . . . . . .. . . .. . . .
Section B. The relevance of the Treaty to the subject-matter of the
dispute .................................

Chapter IV. The dispute has been shown to be one "not satisfactonly
adjusted by diplomacy" . . . . . . . .. . .. . . . . . . . . . . . . .
Section A. Article XXI (2)of the Treatydoes not require pnor nego-
tiations . .. . . . .. . . . . .. . . . . . . ... . . . . . . . . . .
Section 3. The Parties' positionswere so positively opposed to each
other that negotiations would not be required in any event . . . .

PARTVII. CONCLUSION AND SUBMISSION.S. . . . . . . . . . .

Annex. The illegal U.S. NOTAMs and the lack of coordination by U.S.
forces with civilianATS authorities in the Persian Gulf region . . . .

List ofexhibits . . . . . . . .. . . .. . . . . . . . . .. . .. . . . .

Observationsof the International Civil AviationOrganization

LETTERFROM THE SECRETARG YENERAL OF THE INTERNATIONAC LIVIL
AVIATIONORGAN~ZATIO NO THE REGISTRAR OF THE INTERNA-
TIONAL COURT OF JUSTICE . . . . . . .. . . . . ... . . . . . . . . .XVI CONTENTS - TABLE DES MATIPRES

FACTUA LNFORMATION REGARDING THE PROCEEDING IN THE ICA0
COUNCIL FOLLOWING THE DESTRUCTIO OF THE IRANAIRBUSA300
FL~GHT NO. IR 655 . . . .. . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . .... . . . . . . . . . . . . . . . . . . . .
Atîochment A. The Council of theInternational Civil AviationOrganiza-
tion (ICAO), at its Extraordinary Sessioheld on 13 and 14July 1988,
approved asits decision the followingstatement by the President of the
Council . . . . . . . . .. . . . . .. . .. . . .. . . . . . . . . . . .

Attachment B. Decisionof the Council of theInternational Civil Aviation
Organization (ICAO) . . . .. . . . . . . . . . . . . . . . .. . .. .
Attachment C, Resolution adopted by the Council of the International
Civil Aviation Organization at the20th meeting of its 126th sessionon
17 March 1989 . . . .. .. . . .. . . .. . . . . . . . . . . . . . .

Observationsde l'organisationde l'aviationcivile internationale
INTRODUCT~O .N. . . . . . . . . .. . .. . . . . ... . . . . . . . .

NARRATION DES FAITS CONCERNANT LES TRAVAUX DU CONSEIL A LA
SUITE DE LA DESTRUCTION DE L'AIRBUS A300 D'IRAN AIR ASSURANT
LE VOL NO IR 655 . .. . .. . . . . . . . . .... .. .. . . . . . .. .
CONCLUSION . . . . . . .. . . . . .. . .. . . . ... . . . . . . . .
Piècejointe A. Le Conseil de l'Organisation de I'aviationcivile interna-
tionale (OACI), siégeanten session extraordinaire les 13 et 14juillet
1988,a approuvécomme décision la déclaration ci-aprè dsu président
du Conseil . . . . . .... . . . . . . . . . . . . . . . . . . . . . .

Piinternationaleé(OACI)du .o.. . . . . . . . . .. . . . . .. . . . . .v.le

Pièce jointe C. Résolutionadoptée par le Conseil de l'organisation de
l'aviation civile internationale à la 20Cséancede sa 126=session le
17mars 1989 . . . . . ... . . . . . . . . . . . . . . . . . . . . .

Correspondence - Correspondance . .. . .. . . . . . .. . . . . . . . .

SettlementAgreement - Arrangement amiable .. . . . . . . . . . . .PRELIMINARYOBJECTIONS SUBMITTEDBY
THE UNITEDSTATESOF AMERICA

EXCEPTIONS PRÉLIMCNAIRESPRÉSENTÉES
PARLES ÉTATS-UNISD'AMÉRIQUE ,INTRODUCTIONAND SIJMMBBX

On 17 May 1989, the Governmentof Iran filed an Application
with this Courtinstitutingthe presentcase against theUnited

States. Iran statedthat "[tlhisdispute arises from the

destructionof an Iranian aircraft,Iran Air Airbus A-300B,

flight 655 and the killing of its 290 passengersand crew by

two surface-to-air missiles launche £rom the U.S.S. Vincennes,

a guided-missile cruiser on duty with the United States Persian

Gulf/MiddleEast Force in the Iranian airspace over theIslamic

Republic'sterritorial waters in the Persian Gulfon 3 July

1988." This incident occurredin the midst of an armed

engagement between U.S. and Iranian forces,in the context of a
long series of attackson U.S. and other vesselsin the Gulf.

In its Application, the Governmeno tf Iran soughtrelief

frornthis Court on the basis of Article 84 of the Conventionon

International Civil Aviation of 1944 (hereinafterthe "Chicago

Convention") and Article 14 of the Conventionfor the

Suppression of UnlawfulActs Against the Safety of Civil

Aviation of 1971 (hereinafterthe *MontrealConvention").

On 12 June 1990, the Court orderedthat the Governmentof

Iran fileits Mernorial by 24 July 1990, and that the United

States file its Counter-Mernoria by 4 March 1991. In4 AERIAL INClDENT 121

accordance withthis Order and with the Court's Order of

13 December 1989, theUnited States submits the following
prelirninaryobjectionsto the jurisdictionof theCourt to

entertain the claims filed by Iran.

Xn this case, Iranis, under Article 36(1) of the Statute

of the Court, invoking threetitles of jurisdictionprovided

for in conventionsto which the United States and Ican are

Party. They are Article 84 of the Chicago Convention, Article

14(1) of the Montreal Convention,and Article XXI(2) of the
1955 Treaty of Arnitybetween Iranand the United States

(heceinafterthe "Treatyof Amity"). Each of these provisions

confers on the Court jurisdiction to decide disputes relating

to the interpretationand applicationof the subject convention

once certain conditionsare satisfied. Itia the contentionof

the United Statesthat in no case are the applicable conditions

satisfiedand that the Court has no jurisdictionunder any of
these conventions. The United States accordingly is requesting

that the Court address the issuo ef jurisdictionfirst, in

accordance with Article 79 of the Rules of the Court.

In its Application, Iran invoked Articl 84 of the Chicago

Convention, "in order to appealfrom the decision renderedon

17 March 1989 by theCouncil of the International Civil

Aviation Organization";and Article 14 of the Montreal131 PRELIMINARO YBJECTIONS

Convention. fourteenmonths later, in its Mernorial,Iran
invoked for the first time Article XXIof the Treatyof Amity.

None of these conventions,placed in the contextof the Eacts

of this case, provides a basis for the jurisdictionof this

Court as alleged by Iran.

With respectto the Chicago Convention, the International

Civil Aviation Organization(hereinafter"ICAO")Resolutionof

17 March 1989 was not a "decision"of the ICAO Council within
the meaningof Article 84 of the Chicago Convention. Iran

never asked for a decisionof the Councilunder Article 84 and

the Council never rendered a decisionunder that Article. The

proceedingsthat led tothe ICAO Resolution, as well as the

form and substanceof the Resolutionitself,clearly show that

the Council wasnot actingunder Article 84 when it adopted its

Resolution, but ratherunder an entirelyseparateprocedure
from which there is no appealto the Court. Iran's attemptto

by-pass the established ICAO proceduref sor resolutionOC

disputes threatensthe institutiona1,integrita ynd effective

operationof ICAO.

The Montreal Convention alsoprovidesno basis forthe

Court's jurisdiction. Iran has failed to satisfy the

prerequisitesfor the Court's jurisdiction under the Montreal

Conventionby not having soughtto resolvethis dispute through6 AERIALINCIDENT [41

negotiationsprior to Éiling suit in theCourt, and by Eailing

to comply with the Convention'sclear requirernents for the

prior exhaustionof arbitration procedures. Furtherrnore,
Iran'sclaim has absolutely no connectionto the Montreal

Conventionand is clearly outside its scope. The terrnsand

historyof that Convention,as well as the subsequentpractice

of the parties, make clear that it does not apply to acts of

States:against civil aircraft -- particularlyacts committedby

the armedforces of States. The actionsof the United States

upon which Iran relies to sustain its claim are governed by the
laws of armed conflict and not the Montreal Convention.

With respect to the Treatyof Amity, Iranis assertingthis

Treaty in bad faith, given Iran's past inconsistentassertions

and conductunder the Treaty. The United Statescontends that

the Courtdoes not have jurisdictionbecause Iran failedto

assert this Treaty as a basis of jurisdictionin its

Applicationand is now seekingto transform the disputeas set
Eorth in its Applicationinto another disputewhich is wholly

differentin character. Further, theTreaty of Amity hasno

connectionto the disputethat is the subject of Iran's

Application. Finally, Iran may not invoke the compromissory

clause of the Treaty of Amitybecause Iran has made no effort

to resolve that dispute by diplomacy, as is requiredby thePl PRELlMlNARYOBJECTIONS

Treaty of Amity. Nor hasIran pursuedthe United States'
efforts to make compensationfor the incident.

In its Memorial, Iran also assertet dhat theUnited States

has violated the United Nations Charter and various other

conventionsand principlesof internationallaw. The Court

must disregardthese allegations,since the Court has

jurisdictionover none of them.

In effect, Iran has deliberately avoided normal diplomatic
practice and disregarded the procedures for resolutionof

disputespravided inthe conventionsit cites. Iran has

instead broughtto this Court questions over which the Court

has no jurisdiction,and for which thereis no adequate record

nor reasonable basis for judicial resolution.AEter trying and

faillng to obtain condemnationof the United States in ICA0

under procedures whichdo not contemplateEurther review, Iran
has -- after the fact -- wholly recast the nature of its

complaint in an attempt to recoup its fortunes in this Court.

As a result of Iran's actions, the United States ha3 been

unable to proceedwith thepayment of compensationto the

Iranian familiesof the victimsof this tragicincident. The

Court has the authorityunder Article 79 of the Rules of the

Court to act on these preliminaryobjections;it is submitted
that the Court should do so by rejectingIran's improper

invocation of theCourt's jurisdiction.8 AERIAL INCIDENT [hl

The United States reservesits right to object to any other

issue of the Court's jurisdiction over, or the admissibility

of, Iran's claims that arise in the course of these

proceedings, as well as the right under Article 80 of the Rules

of the Court to present counter-claims in the event the Court

determines that it has jurisdiction in this matter.PART 1 PRELlMlNARY OBJECTIONS 11

The Applicationand Memorial filed by Iran in this case are

based on an incidentthat occurred on 3 July 1988, in the Gulf

near the Coast of Iran involvingIraniangunboats, U.S. naval
vessels, and Iran Air Flight 655. In consideringthe

jurisdictionof this Court, many of the factual assertions made

by Iran neednot be addressedat this timeby the Court. It

is, however, importantfor the Courtto appreciatethat this

incident occurredin themidst of an armed engagementbetween

U.S. and Iranian forces, in the contextof a long series of

attackson U.S. and other vessels in the Gulf. The incidentof

Iran Air Flight 655 cannot be separated from the events that
preceded it and from the hostile environment that existed on 3

July 1988, due to the actionsof Iran'sown militaryand

paramilitaryforces. The report of investigationof the

International Civil Aviation Organization(hereinafter "ICAO")

Eound that:

"As a result of difficultiesexperienced by international
shipping in the Gulf, naval forcesof several States
entered the area to provide a protective presenceand
safeguardthe freedomof navigation. The extent and
intensityof hostile activitiesvaried considerablyfrom
tirneto time. The incidenton 17 May 1987 in which the USS
missiles wasof particular relevanceairin thf chain of events
leading to the destructionof flight IR655 ."

l"~estructionof Iran Air Airbus A300 in the Vicinity of
Qeshm Island,IslamicRepublic of Iran on 3 July 1988: Report
of ICAO Fact-Finding Investigation, November 19138"~ICAO Doc.
C-WP/8708, restricted, Appendix.para. 2.1.1 (Exhibit 9)
(hereinafterreferredto as "ICAO Reportn).12 AERIAL INCIDENT Il0]

For more than four yearsprior to 3 July 1988, Iran had

repeatedlyattacked rnerchantshipping in the Gulf as a part of

its conduct of the Iran-Iraqwar, whichhad been actively waged

since Septernber1980. Several U.S. merchant ships, as well as
several hundred marchant ships fromother States,were attacked

and damaged by Iranian naval vessels, aircraft, minesa ,nd

missiles during this period. These ships, which were on the

high seas travellingto and €rom non-Iraqiports, werealmost

never stopped and searched by Iran to determine whetherthey

were trading withIraq or carrying contraband destined for

Iraq.

On 3 July 1988, U.S. naval vessels, after seeking to assist
a merchant vessel, foundthemselvesforced to take actionin

self-defense as a result of an unprovoked attack by Iranian

gunboats. In themidst of this surface engagement, an

unidentifiedairctaftdeparted from theIranian joint

military/civilianairfieldcompfex near Bandar Abbas and set a

course which would take it directly over the USS Vincem.

The Comanding OfCicer of the USS V- was aware that Iran

recently hadrnovedsophisticated, high performancI eranian F-14

fighter aircraftto the airfield at Bandar Abbas; indeed,Iran
had recently operatedthese fighter aircraftfrom Bandar Abbas

on several occasions in the vicinityof the incidentof 3 July

1988. On that date, the rapidly approachinu gnidentified[il] PRELIMINARY OBJECTIONS 13

aircraftfailed to respond to repeatedwarnings and directions
to turn awaywhich were broadcast on both militaryand civilian

air distress frequencies. Instead, the aircraft continut eod

close to within ten nautical milesof the ship (wellwithin the

range of the Maverick missilesthat had been employed by the

IranianAir Force to attack shippingin this area). At this

point, the CommandingOfficer of the USS Vincennes determined
that he could no longerwithhold his fireand still adequately

ensure the defenseof his ship againstthe approaching

aircraft. Consequently, andas a matter of necessity.he

responded by firing two missiles that downedthe aircraft less

than eight nautical miles from thU e.S. naval vessels. The
subsequent ICAO Investigation Report concludei dn paragraph

3.2.1 that "[tlhe aircraft was perceived as a military aircraft

with hostile intentions anw das destroyed by two surface-to-air

missiles."

Only afterwards did it hecome clearthat the approaching

aircraft wasa civilian airliner,which Iranianauthorities had

permitted to take off and fly directly towardsthe U.S. vessels
while they were involved in a surface engagement withIranian

gunboats. The United States imediately expressed its deep

regret overthe incidentand cooperatedEully with the team

established by the ICAO Council to investigatethe

circumstancesof the incident. Before the United Nations14 AERIAL INCIDENT 1121

Security Counciland the ICAO Council and in communicationsto

each State having nationalsaboard the Elight (includingIran),

the United States offered to pay compensationto the Eamilies

of the victims. While some familiesof the victims initially

chose ta pursue legal remediesin U.S. courts, in due course
this compensation offer was accepted by many of the families

and payrnentswere made. Of the States involved,only Iran has

rejectedthe U.S. offer and has prevented itsnationalsErom

açceptingpayment.

Al1 these events are importantin understandingwhy U.S.

naval vessels came to be off the caast of Iran in 1988; why on

3 July of that year the USS Vincenns feared an imminentattack

from Iranian aircraft and reacted accordingly;how the United

States thereafter workedon its own and within the United

Nations and ICAO, the competentspecializedagency. to

understandwhy this incidentoccurred;and how the United
States made effortsto provide compensation forthe incident. PRELIMINARY OBJECTIONS

CHAPTER 1
IRANIANATTACKS ON MERCHANTSHIPPINGDURING THE IRAN-IRAQ WAR
TNREATENEDTHE FREEDOM OF NAVIGATION ANDPROMPTED THE
DEPLOYMENT OF MILITARY FORCES BY VARIOUS NATIONSTO THE GULF.

It is well known that in late 1980, armed hostilitiesbroke

out between Iranand Iraq, leading to extensivefighting

between those two countriesfor eight years. The war between

Iran and Iraq extended into the Gulf in March of 1984 when Iraq

initiated attackson tankers usingIran'soil terminalat Kharg

Island. Lacking comparableIraqi targetswhieh could be easily

attacked,Iran chose to retaliate by attackingon the high seas
ships calling at non-IraqiArab ports in the Gulf. These

Iranian attacks on merchant vessels in the Gulf became

extensive in 1987 and continueduntil the incident oE 3 July

1988 and thereafter. The United States submits as Annex 1 to

this pleading a descriptionof many of the incidentsof

unprovoked Iranian attacks on merchantvessels during 1987-88.il5] PRELIMINARYOBJECTIONS 17

to protect itsinterestsand those of other friendlyStates,

especiallybecause of an Iranianthreat toclose theStrait of

Horrnuzand the likelihoodthat U.S. ships might be attackedin

the ~ulfl.

In particular, theUnited States deployedwarships to the

Gulf to help protectrnerchantships flyingU.S. and other flags

that were not engaged in carrying contrabandfor either of the
two belligerents. Many other Statesals0 deployed warshipsto

the Gulf for thispurpose, includingthe UnitedKingdom,

France, the Netherlands, Italy, Belgiurn,and the US SR^.

1w "U.S. Policy in the Persian Gulf", Special Report No.
166, U.S. Dep't of State, pp. 3-4 (July 19871,Exhibit 36; s.ee
P. DeForth, "U.S. Naval Presencein the Persian Gulf: The
Mideast Force Since World War II", Pavai War Colle~e Review, p.
28 (Summer 1975). Exhibit 37.
2h "Iran Fires Missile at Kuwaitn 5
Sep. 1987, p. A-1 (hereinafter"Wash&!?"~:~~hP~:~ding 2
Ships to Hunt Minesin Gulf", pew Y-, 8 Sep. 1987, p.
A-3 (hereinafter"N.Y. wu); "Perezde Cuellar'sGulf Trip
Ends in Apparent Failure",Wash. Post, 16 Sep. 1987, p. A-1;
"Reagan Accepts Planto Escort Tankers",M.&-, 30 May
1987, p. A-1; "BakerHints at U.S.Action if Iran Deploys Gulf
Missiles*,N.Y. m. 8 June 1987, p. A-8; "U.S. Poliey in the
PersianGulf," pe. d., Exhibit 36, pp. 5-7. In April 1987.
Kuwait signedan agreement with the Soviet Union to lease
Soviet tankersto Kuwait; by May 1987 the Eirst of three Soviet
ships leasedto Kuwait beganoperatingin the Gulf. with a
Soviet frigate and two rninesweepers as escorts.,"IraqiMissile
Hits U.S. Navy Frigate in PersianGulf", N.Y. Tl-, 18 May
1987, p. A-1; "~reernptiv e.S. Strike on Iran Missiles
Debated", Wash. Pest, 5 June 1987, p. A-1. For copies of al1
newspaper articlesreferredto in this Part, see ~xhibit 35.18 AERIAL INCIDENT [161

Many of Iran's indiscriminate attacko sn rnerchantvessels

were conductedby small gunboatsof Boghammarmanufacture.

These gunboats were typically equipped with machineguns,

rocket launchers(includingrocket-propelledgrenades),and

srnallarrnsl.U.S.-ownedvessels werearnongthose attackedby

Iraniangunboats. Forexample,on 9 July 1987, an rania an
gunboat attackedthe U.S.-ownedLiberian-flagged tanker Peconk

off Kuwait,while on 6 November 1987, Iraniangunboats attacked

the U.S.-owned Panamanian-flagged Grand wm2. On

16 November 1987,Xraniangunboats attacked the U.S.-owned,

Bahamian-flagged &?,O FreeDOrt and attacked theU.S.-owned

Liberian-flagged near the Straitof ~orrnuz~.

O.S. military forces tookan active role in respondingto

requestsfor help from U.S. vessels and Érom othervessels in
distress when attackedby Iranianmilitary and paramilitary

gunboats. On 12 December 1987, a helicopter £rom the destroyer

~ICAO Report, para. 1.16.1.2.

34a~unboatAsttack U.S. Tanker", ForeianBroadcast
mation Service, 16 Nov. 1987, p. 23 (hereinafter"U");
"LloydsReports Liberian Tanker Attackeb dy Iran",EUS,
17 Nov. 1987, p. 20; Exhibit 32, S/16877/Add. 5, p. 15. [17] PRELIMINARYOBJECTIONS 19

USS Wndlx rescued 11 seamen £rom the burning Cypriot-flagged

tanker, the Pivot, off Dubai following an attack by an Iranian

frigatel. On 25 December 1987, a U.S. Navy helicopter rescued

11 seamen and a British Navy helicopter rescued nine seamen

from a burning South Korean freighter,the wdai-7, after it

had been attacked by Iranian srnall boats 25 miles north of

Sharjah2.

This assistance sometimes brought U.S. military Forces into

hostile contact with the Iranian gunboats, which would attack

the U.S. forces. For instance, on 8 October 1987, three

Iranian gunboats about 15 miles southwest of Farsi Island fired

upon U.S. helicopters. ThreeU.S. helicopters returned fire,

sinking al1 three of the Iranian boats3. Several other

~"u.s .avy Rescues Tanker Crew in Gulf", N.Y. Thez, 13
Dec. 1987, p. L-3; Exhibit 32, S/16877/Add.5, p.17.

2"~loyds Cited on Attack on S. Korean Ship", EUS, 28 Dec
. 1987, p. 27; Exhibit 32, S/16877/Add.5, p.18.

3~etter dated 9 Oct. 1987 from the Permanent Representative
of the U.S. to the U.N. Addressed to the President of the
Security Council, U.N. Doc, S/19194 (Exhibit 33); Letter dated
10 Oet. 1987 Erom President Reagan to the President Pro Tempore
of the Senate and the Speaker of the nouse, Weekly Compil. of
Pres. Docs., p. 1159 (1987) (Exhibit 33); "U.S. Helicopters
Sink 3 Iranian Gunboats in Persian Gulf", WdpOSt, 9 Oct.
1987, p. A-l; "U.S. Gulf Forces Said to Seek More Powers",
Wd. Post, 13 Oct. 1987, p. A-1.20 AERIAL INCIDENT

nations also were forced to take steps to protect their

shipping .

In addition to gunboats, Iran used naval mines, missiles

and aircraft to attack shipping in the Gulf. On 24 July 1987,

the S.S. Bridseton, a U.S.-reflagged ~uwaiti tanker under U.S.

rnilitaryescort into the Gulf, hit a mine about 18 miles West

of the Iranian island of Farsi, causing extensivedamage to the

ship'. Consequently, the United States orderedU. S. Navy

minesweeping helicopters to the ~ulf '. Other nations

dispatched minesweeping units as we113. At tirnesIran denied

l"~fter the Blast, Journey Continues", N,Y.fimes, 25 Yuly
1987, p. 5; Exhibit 32, S/16877/Add.5, p.9.

'"u.s. Acts to Bolster Gulf Mine Defenses on Several
Frontsn W , 4 Aug. 1987, p. 1 (hereinafter
&~F:'~:"~~eiicopters Arrive for Mission to
Sweep the Gulf", A.Y. Tirna, 17 Aug. 1987, p. A-1; "U.S. Orders
8 Old Minesweepers to the Gulf", frLl-Tisru, 20 Aug. 1987, p.
A-1.

3~ee Annex 1.il91 PRELIMINARYOBJECTIONS

that it was the sourceof these mines. Nevertheless,in a

Tehran radio dispatch on 20 August 1987,Iran admittedthat it
had mined the Persian Gulf, purportedltyo "protect" its

coastlinel.

Iran constructed missile sites and launchedSilkworm

missiles primarily £rom the Faw Peninsulain 1987, damaging

Kuwaiti shippingfacilitiesand merchant ships off Kuwait,

including theU.S.-flaggedtankerSea IslecitvZ. Iran also

inflicted considerable damage on shippingin the Gulf with

attacks by Iranian aircraft, usually fighter aircraft using
Maverick missilesand "iron" or gravity bombs3. On 2 February

1988, £ive months before the incidentof 3 July 1988, two

Iranian F-4s launchedtwo Maverick missiles at the Liberian

tanker PetrobulkPilot about 30 nautical milessouth-southwest

l"1ran Says it Mines the Gulf",&a&pOSt, 21 Aug. 1987,
P. A-1,
2- Annex 1.

3~averickmissiles can be launched£rom ranges of 0.5 to 13
nautical miles and are televisionguided. The launching
aircraftmust be able to keep visual track CIEthe target,but
does not have to scan the targetwith radar. "Forma1
Investigationinto the Circumstances Surroundint ghe ~owning Of
Iran Air Flight 655 on 3July 1988" (hereinafter "ICA0 Report,
Appendix E"), p. E-12.22 AERlALINCIDENT i201

of the area where the incidentof 3 July 1988 took placeL. A

few àays later, on 12 February 1988,an Iranianhelicopter

attackedthe Danishvesse1 Karama m.
This stateof tensionand conflictcontinuedthrough the

spring and into the summer of 1988. On 14 April 1968, the USS

Samuel B. Roberts was struck by naval mines laid by Iranian

gunboats in shipping channels, east of Bahtain,causing

extensivedamage to the vesse1 and injuringten crewmen, some

seciously2. In responseto this unlawful useof force and as a

proportionate measureto deter further Iranianattackson

merchant vessels,on 18 April 1988, United States

'"1ran Tries Aerial Attack on Cargo Ship in Gulf",
eHo-, 3 Feb. 1988. p. 2. Military forces
in the Gulf knew that IranianF-14s could be configuredto drap
iron-bornhson naval vessels if they could approach withintwo
nauticalmiles.of the target. ICA0 Report,Appendix E, p. E-12.

2w~1ast Damages U.S. Frigate in Gulf",N.Y. Times, 15 Apt.
1988.A-21. The mine exploded on theport side of the keel by
the engine room, opening a hole 30 by 23 Eeet. Extensive
damage occurred from the explosionand subsequentEire and
flooding. R. O'Rourke, "GulfOps," Naval Review Proceediw,
p. 44 (1989) (Exhibit 38). Several mines were subsequently
found in the Central Gulf. "U.S. Finds 2 Mines Where Ship was
Damaged", N.Y. Tb, 16 Apr. 1988, p. 32; "U.S. Warship
Damaged by Gulf Blast", m, Post, 15 Apr. 1988,p. A-21.[211 PRELIMINARY OBJECTIONS 23

military forces used force to inflictdamage upon oil platforms

where Iranianmilitarycommand and control facilities were
located and fromwhich Iraniangunboats were deployed to attack

shipping andto lay naval mines. Before doingso, the United

States directed the evacuationof personnelon the platforms.

In retaliation, Iranianfighter aircraftwere deployedErom the

airport near Bandar Abbas (thesame airport from which Iran Air

Flight 655 would depart) to join Iranian frigates and small

boats frornAbu Musa Island and Qeshm Island in attackson

U.S.-ownedor associatedoil rigs, platformsand jack-up rigs.
During the engagement withU.S. forces protectingthese rigs

and platforms,two Iranianfcigatesand one missile patrol boat

were sunkor severelydarnaged.One of the Iranian F-4s that

scrambledfcom Bandar Abbas during this incident failed to

respondto repeatedU.S. warnings; whenit continuedto close

on U.S. vessels, the USS launchedmissiles, damaging

the aircraft. Much of this activitgtook place just to the

south of the area where theincident of 3 July 1988 occurredl.

l~etterdated 18 Apr. 1988 from the Acting Permanent
Representative of the U.S. to the U.N. Addressedto the
Presidentof the Security Council, U.N. Doc. Wl.9791 (Exhibit
34); ICA0 Report, Appendix E, pp. E-11 - E-12; W. PQS~, 23
Apr. I988. AERIALINCIDENT 1221

in the month preceding the incident of 3 July 1988, Iranian

F-14s were transferred to Bandar Abbas, which was perceived by

the United States as a significant upgradein Iranian offensive

air capability at that airport'. In the three-day period prior

to the incident, there was heightened air and naval activity in

the Gulf, ineluding over-water flightsby Iranian F-14s in the

vicinity of U.S. naval vessels. U.S. forces in the Gulf were

alerted tothe probability of significant Iranian rnilitary

activity againstmarchant shippingor U.S. military vesselsin

retaliation for recent Iraqirnilitarysuccesses in the land

war; it was expected that such retaliation couldcorneover the

weekend of 4 July, the day the United States celebratesits

independence.

On 2 July and into 3 July 1988, Iranian small boats

positioned themselvesat the western approachesto the Strait

oE Hormuz £rom which they routinely challenged and

.indiscrirninatelayttacked merchant vessels2. On 2 July 1988,

~ICAO Report, Appendix E, pp. E-6, E-13.

2~~~~ Report, Appendix E, PP. E-6, E-7.L23] PRELIMINARY OBJECTIONS

the Danish vesse1 Brama Maersk, outbound £rom Saudi Arabia,

was repeatedly attackedby Iranian small boats. The

Xarama Maersk issued a "mayday" distress cal1 requesting

assistance. The USS Elmer Montaornervresponded and observed

several Iranian small boats to Eire rockets at the Danish

ship. When the USS Elmer Montaornerv fired a warning shot at

the srnallboats, the Iranian boats retiredl.

~ICAO Report, Appendix E, p. E-7; "U.S. Warship Fires
Warning at Iranian Boat", Wash* Post, 3 July 1988, p. A-25. AERIALJNcIDEm 1241

CHAPTER II

ON 3 JULY 1988, IRANIANGUNBOATSAND U.S. NAVAL VESSELS WERE
ENGAGED IN COMBAT WHEN AN UNIDENTIFIEDIRANIANAIRCRAFT RAPIDLY
APPROACHEDTHE U.S. VESSELSAND, UPON FAILURETO RESPOND TO
REPEATEDRADIO WARNINGS, WAS SHOT DOWN.

On 3 July 1988, the USS was on patrol in
the northern portion of the Strait of Horrnuzoutside the

territorial watersof lranl. At approximately 3 UTC, the USS

wr b~omerY detected seven small Iraniangunboats with

manned machine gun mounts and rocket launchers approaching a

Pakistanimerchant vessel. Shortly thereafter,the USS el me^

Montaomerrdetected a total of 13 Iraniangunboatsbreaking

into threegroups, oneof which took a positionoff the USS

wr Montaomerv'sport quarter. The USS

l~ll U.S. naval vessels prior to the engagementwith
Iranian small boats were in international,not Iranianwaters.
The ICAO investigationdeterrnined that at 6:10 a.m. the
positionof the three U.S. ships was as follows:

USS Vincennes 26 26 N, 056 02 E
USS Elmer 5 nautical miles northweso tf
the USS Vincennes
USS 10 nautical miles northeast of
the USS

ICAO Report, Appenàix A, p. A-1. These positionsare al1
outside of Iranian territorial waters.1.251 PRELIMINARY OBJECTIONS

could hear thegunboatsover communications channels

challengingmerchantships in the area andshortlythereafter

heard explosionsto the northl.

The USS was directedto proceea north to the

vieinity of the USSElmer M m to investigate2. A USS

Vincennes helicopter, designated "OceaL nord 25," was vectored

to the north t8 investigateand to monitor the Iranian small

boat activity. At 6:15 UTC, Ocean Lord 25, while operatingin
internationalairspace,was fired upon by small boats3. The

USS Vincenne~then took tacticaleommanà of the US5

Montaomervand both ships proceededto close the positionof

the helicopterand the small boats at high speed. At the same

'ICAO Report, AppendixE, pp. E-7, E-26. Throughoutthis
Mernorial,the United States lists tirneas Co-ordinated
Universal Tirne (UTC), as was done by the ICA0 investigation
team.

2~~~~ Report,~ppendixE, p. E-26.

3~~~~ Report,Appendix A, p. A-1. At no time was the
helicopterin Iranian interna1waters. The helicopterwas in
international airspaceapproxirnatelf your nauticalmiles from
Iranian territorialwaters.28 AERIALINCJDENT [261

time, the US5 Vincennes was trackingand communicatingwith an

Iranian P-3 military surveillance aircraft, which had ciosed

£rom about 60 to about 40 nautical miles1.

As the US5 vincennes and USS Ur Montaomxy approached

the small boats, two groups of them were observedturning

towards the USS Vincennes and USS Wr Mon- and

commencinghigh-speedattaek runs, whichprior experiencein
the Gulf had shown to be quite dangerous methodsof attack2.

This closing action wasinterpreted as a demonstrationof

hostile intent to attackthe U.S. vessels. The Commanding

Officer of the USS Vincennes then requestedand was granted

l~heUSS Vincennes' command andcontrol system is not
capableof differentiatingbetween differentaircraftwithout
an identification signal £rom the aircraft. When the USS
V ! J challenged theIranian P-3 at 6:48:25 UTC (ICAO
Report,Appendix 8, p, 8-17), the USS Vince- had already
been monitoringand communicatingwith the P-3 for a period of
time (ICA0 Report, Appendix A, p. A-1). Although theUnited
States had an AirborneWarning and Contcol (AWAC) aircraft
airborne at the timeof the incident,it providedno link
information;its radar is unable to providecoverageof the
entire Persian Gulf area, whichat that time included the area
in which this incidentoccurred. ICAO Report, Appendix E.
p. E-26,
21~~0Report,Appendix E, pp. E-27-E-29; U ICA0 Report.
AppendixA, p. A-2; N. Friedman, "The VincennesIncident".

Naval Revi~w Proceew, p. 74 (1989) (Exhibit 39).permissionby his immediatesuperior (the Commander, U.S. Joint

Task Force MiddleEast) to engage the srnallboats with pnfirel.

At approximately 6:43 UTC, the US5 Vincennesand USS

P1M~y opened fireon the two closing groups of Iranian

small boats, including the grouo pf small boats that had fired
upon Oceah Lord~5~. The surfaceboats opened Eire on the two

U.S. warships. ~lthoughboth u.S. and Iranianvessels were in

international watersat the commencementof this engagement,

during the 17-minute engagement it became neeessary for the USS

-, in defendingitself,to maneuver into waters claimed

by Iran as territorial waters3.

'ICAO Report, AppendixA, p. A-2; ICA0 Report.AppendixE,

p. E-27.
2~~~~ Report, Appendix E, p. E-27.

3~t the timethe US5 V_incennesfired its surface-to-air
missiles (6:54UTC}, it was locatedat 26 30 47 N, 056 00 57
E. ICA0 Report, para. 2.11.7. Since the USS Vin<=enneswas
under armed attackby Iraniansmall boats,it was cleacly
entitled to maneuver as necessary (includingentry into Iranian
territorial waters)as a rnatterof self-defense. Moreover,
under the Treaty of Amity between the United States and Iran
(Exhibit a), Article X, paras. 5 and 6, a 0.5. warship in
distress is permittedto enter territorial waters claime dy
Iran. AERIAL INCIDENT [281

This surEaceengagementremainedactive from the 'cimeIran

Air Flight 655 took off €rom Bandar Abbas through thedowning

of Iran Air Flight 655. The crew of the USS Vincenoes were at

battle stationsas Iraniangunfirewas heard to ricochetoff

the USS Vincennes' starboardbow. (The post-actionanalysis

indicatedthat shrapneland/or spent bullets appeared to have

hit the USS Vincennes and damaged the protective coatinb gehind

the forward missilelauncher)'. During the engagement,the USS
experienceda "Eoul bore" or faulty dischargein the

forward gun of its two guns capable of engaging surface

targets. Consequently the Commanding Officeorf the USS

Vincennes ordered a full rudder at 30 knots to turn the ship

around and bring the aft gun to bear in defendingthe USS

Vincennes from the attackinggunhoats. This caused the ship to

list at a 30-degree angle, causing books, publications,and

loose equipmentto fa11 frorndesks and consoles in the USS

men ne^' Combat Information Center (cIc)~.

'ICAO Report, Appendix E, p. E-28.

2~~~~ Report, Appendix A, p. A-7; Exhibit 9. Appendix E.
PP, E-9, E-28.Lw PRELIMINARYOBJECTIONS 31

Iran Air Flight 655 was scheduled to take off Erom Bandar

Abbas International Airport at 6:20 UTC en route to Dubai

Airport in the United Arab Emirates. BandarAbbas is a joint

military/civilianairport located 4.5 miles northeastof the

town of BandarAbbas. The flightdid not leave on time,but

left almost a half-hour (27minutes) late. Such flights
normallypush away from the gate closeto the scheduled

departuretimel.

The unidentifiedaircraft(later identifiedas Iran Air

Flight 655) was immediatelydetected by the USS Vincennesand

the USS Si-, at a range of 47 nautical milesand closing on

the U.S. vessels2. The apptoaching aircraft was thereafter

monitoredby the USS -' "Aegis"weapons system, which

consists of an electronically-scanned radar system and

large-screen display system inteqratedwith the vessel's

surface-to-airmissiles. The large-screen display shows the

'ICAO Report, paras. 1.1.1; 1.1.3; 1.1.4; 2.4.2. The
statementin para. 3.1.7 of the ICA0 Report thatthe flight
departed 20 minutes afterthe scheduledtime appears incorrect.

2~~~~ Report,hppendix E, p. E-8.32 AERIAL INCIDENT PO1

relative speedand course of an aircraftusing symbologyl. The

exact course, speed and altitude are displayed on a separate

digital readout. The system cannoptositivelydeterminethe

size, type or character of an approachingaircraft. It is the
responsibilityof the personnelof the CIC to assist the ship's

commandingofficer in assessingthe contact's natureand intent

on the basisof al1 available information. In the few minutes

availablein this case, the CIC assessrnent was based on various

factors, including: the contact's departu£ reom a joint

rnilitary/civilairfield; the direct course of thceontact to

the USS -; a perceived interception of an IFF Mode II

signal (typically emitted by military aircraft);and the

constantly closingrange of the contact.
Informationon civilian flight schedules was availablein

the CIC. TheICAO Report, however,confirrns that sueh

information wasof limitedvalue in estirnating overflighttime

'on the Aegisdisplay screen, an aircraft is displayed as a
syrnbol;its speed is depicted by a vector attached ta it. The
higher the speed, the longer the vector, Theveetor's
directiondepicts the aircraft'scourse. The unidentified
approaching aircraft was designate by the US5 Y- asTN
"unknown--assumedy enemyu. ICAO Report, AppendixieA,sp. A-3.Pl1 PRELIMINARY OBJECTIONS 33

of an aircraft. The Report states: "In the absence of flight

plan and flight progressinformation, a realistictraffic

picture couldnot be establishedand positiveaircraft

identificationcould not be obtainedon that basisl.*

Noreover, theactual take-offtime of Iran Air Flight 655

differed frornits scheduled departure time, thus creating the

appearanceof anunidentifiedradar contact that could not be

relatedto a scheduled time of departure for a civil flight2.

Althoughover a period of four minutes the U.S. vessels

issued four warningson the civil internationalair distress

frequency (121.5MHz VHF) and seven warningson the military
air distress frequency (243 MHz UBF), the U.S. vessels received

'ICAO Report. paras. 2.8.3; 3.1.19. Consequently any
assertionthat the USS Vincennes knew Iran Air Flight 655was
expectedto pass over at that time is wrong.

ZICAO Report, paras. 2.II.1; 3.1.23.34 AER~ALINC~DENT I321

no responseErom the rapidlyapproachinqaircraftl. A

non-hostile militaryaircraftwould be expectedto respondjust

as the Iranian P-3 in Eact did respond to such warningsonly

minutes earlier, even though it was locatedmuch further away

£rom the USS vincennes2. Likewisecivil aircraftwould be

expected to respond;under provisionsof the Chicago Convention

Annexes al1 civil aircraft arerequired tohave equipment

capable of cornrnunicatinogn 121.5 MHz, the internationalair

distress frequency. Furthermore, al1 civil aircraftare

'1ran asserts that the 121.5 MHz warningsnever actually
occurred or were incapable of being heard or understood.
IranianMemorial, at 55. The ICAO Report, however.eonfirms
that thesewarnings were made and that without question the
Einal one should havebeen clearly understood hy Iran Air
Flight 655 as directedat it. ICAO Report, para. 2.10.
Further, Iranis wrong when it says that the United States
admits the warnings were not clear and that IranAir Flight 655
had qood reason not to listen (IranianMemorial, p. 54).
Although thesame information was nat pcovidedfor al1 oE the
warnings, Iran Air Flight 655 had completed its take-off
proceduresand should have been monitoring the 121.5 MHz
frequency;had it done so it would have realized thatit was
beinq addressed,just as the Iranian P-3 realized thatit was
being addressed.
vessels in the Gulf issuedun150ochallengesto unidentifiedry
aircraft,of which 83 percent provedto be Iranianmilitary
aircraft, including F-14s. ICA0 Report, AppendixE, p. E-18.

2~~~~ Report, Appendix A, pp. A4-AS.[33] PRELlMlNARY OBJECTIONS 35

expected, on long over-water flights, to monitor that frequency

when the aircraft is in operation'. It is critical that this

channel be monitored since military vessels, including U.S.

military vessels,are usually not providedwith equipmentfor

VHF communications otherthan on this frequency. On 16

September 1986, Iran Air itself had issued to flight crews

operating in the Gulf area a Company advisory notice which

required the monitoring of frequency 121.5 MHz at al1 times;

the subsequent ICAO investigation determinedthat this notice

was included in the briefing material for IranAir Flight 655

of 3 July 1988 and therefore concludedthat the IranAir Flight

655 flight erew was aware of the instruction2. The ICAO

investigationalso concluded that there was no indication of

failure of the communications equipment during the flight3.

'~hicago Convention, Annex6, para. 7.1.2 {Exhibit 2);
Chicago Convention, Annex10, paras. 5.2.2.1.1.1,5.2.2.1.1.2,
and 5.2.2.1.1.3 (Exhibit 3).

'ICAO Report, paras. 2.7.3; 3.1.14.

3~~~~ Report, para. 3.1.3.36 AERlAL INCIDENT 1341

Given the requirementsof the Annexes to the Chicago Convention

and Iran Air's instructions,it is unclearwhy IranAir Flight

655 did not respondto the repeatedwarnings of the U.S. armed
forces.

There does not appear tobe any practical reason whyIran

Air Flight 655 was not monitoring this channel and did not

respondto the warning. The aircraft was equipped with two

radios; thereforeit was technicallyfeasible (as well as

extremely prudent given the statoef affaics in the Gulf)to

undertake al1 normal cockpitresponsibilitieson one radio and
monitor frequency 121.5MHz on the other. Furthermore, the

crew of Iran Air Flight 655 could speakEnglish and, for at

least the last two warnings issued over 121.5 MHz, the crew was

not engaged in routine communications with any air traffic

controllers. The fourth and final challenge on this frequency

would havebeen without question recognizable by the crew as

intendedfor thern,and almost a minute elapsed between rhat

final warningand the firing of the USS missiles1.

~ICAO Report, para. 2.10.18. The fourth challengewas
issued at 6:53:25 UTC and the missiles werelaunchedat 6:54:22
UTC. ICA0 Report, para. 2.11.5. PRELlMlNARYOBJECTIONS 37

The Bandar Abbas airport tower is also equippedwith the
121.5 MHzchannel,but curiouslythe airport authorities

claimed in statementsto ICA0 that it did not hear or record

transmissions on this £requencyl. Had it been monitoringthe

frequency, Bandar Abbas might have been in positionto assist

in warning Iran Air Flight 655. It is also curious that the

Iranian P-3 did not seek to assistIran Air Flight 655,since

it was clearly monitoringthe military distressfrequencyover

which seven warnings were issued.
Nor does it appear that Iranianauthorities usedtheir orn

proceduresfor protectingIran Ais Flight 655 from the hazard

of flying into an areaof active hostilities. Iranianmilitary

authorities didnot activatethe "red alert" procedurenormally

used to notify air trafficcontrol centers of military

activitieswhich posed a risk to the safety of civil aircraft.

As was noted in the ICAO investigation report, in some

'ICAO Report, para. 2.10.7. The existenceof these
warnings is not in question. The ICAO investigationfound that
the warnings were issued, based on both United States records
and those of the Britishvesse1 HMS Beaver. For transcriptsof
communicationsrelatedto Iran Air Flight 655. see ICAO Report,
Appendix B.38 AERIAL INCIDENT

instancesIranianaircraftalreadyoff the groundwere

successfullyrecalledby using this "red alert" processl.
This failure by the Iranianrnilitaryto alert rania anir

traffic authoritieswas wholly unjustifiable,and can only be

viewed as either intentional or grossly lacking in judgment;

not only were Iranian authorities awarethat hostile action was

in progress directlyunder a civil air corridor,but they had

initiatedthe hostile action themselves by firing on a U.S.

helicopterin international airspace and bycommencinga

high-speedattack on O.S. naval vessels.

Without any responsefrom Iran Air Flight 655, the USS
Vincennes had to rely on other sourcesof information. First,

intelligence information available to the U.S. Joint Task Force

Middle East indicated the deployment of Iranian F-14 fighters

to BandarAbbas against the background of expectedheightened

hostile activitiesaround the 4 July weekend2. Only weeks

earlier, Iranianmilitary aircrafthad been scrambledfrom

'ICAO Report, para. 2.5.1.
=ICAO Report, para. 2.11.1; ICA0 Report, Appendix E, PP.
E-13, E-43.1371 PRELIMINARYOBJECTIONS 39

Bandar Abbas to assistin interdiction of U.S. vessels in this

part of the ~ulfl. As was noted by the ICAO Report, "the

possibilityof Iranianair support in the surface engagements

with United States watshipscould not be excludedin view of
precedentalbeit not with F-14 type fighteraeroplanes2."

Second, immediatelyprior to the warnings to Iran Air

Flight 655, theUSS Vinçennes was monitoringan Iranian P-3

military patrol aircraft to the west of the US5 -. The

P-3 can serve (and had frequentlyserved) as a "stand-off"

aircraftto assist Iranian fighter aircraftin findingand

accurately attacking vessels3.

2~~~~ Report, para. 2.11.1.

3~he P-3 was flying a routinemorning patrol to the West
and then turned inboundduring the surface engagement. ICAO
Report, Appendix E, pp. E-7, E-45, E-48. This represents a
typical targetting profile of standing clearof the tacget but
remainingwithin range. N. Friedman, pe. a., Exhibit 39.
p. 74. AERIAL INCIDENT 1381

Third, the constantlyapproachingaircraftwas initially
identified as an IranianF-14 and did not emit certain

electronic emissionsthat could be expected from a civil

aircraft,such as aircraftweather radar and radio altimeter.

The USS Vince- was receivingother informationthat did not

correlate with whatwould normallybe the case for an attacking

militacyaircraftl, but there was very little timeto conduct
an accucateassessmentof the aireraft'sflight profile2.

Further, the lackof responseto the warningson frequencies

121.5 MHz and 243MHz reinfocced the belief thatthe aircraft

was engaged in a hostile mission3.

Fourth,while the constantly approaching aircraft was

within the corridor of airwayA59, it was also tracked ona
course straighttowards the USS Wr Montaomeryand the US5

Vincennes slightlydiverging£rom the centerlineof airway

~ICAOReport, para. 2.9.
ro mhe time theComrnandingOfficer first became aware of
the approaching aircraftuntil he made his decisionto fire,
the elapsea time was approximately3 minutes, 40 seconds. ICA0
Report,Appendix E, p. E-47.

3~~~~ Report, para. 2.11.2.Lw PRELIMINARY OBJECTIONS 41

~59~. Iranian rnilitaryaircraft had been knowt no follow the

commercialair routeswithin the Persian Gulfand even to have
squawkedon al1 IFF (1, II, and III) modes and codes,

presumably as a means of disguising their military identity2.

At 6:51WC, the US5 Vincames informedthe U.S. Commander

Of the Joint Task Force MiddleEast (CJTFME) that it had what

it believedto be an IranianF-14 on a constantbearing and

decreasing range which it intendedto engage at 20 nautical

miles unless the aircraft turned away. The CJTFME concurred

and told the USS wennes to warn the aireraft again beEore

firing3. The aircraftclosed to within 20 nautical miles,but

the USS Vincennes continued its concerted effort to warn off
the aircraft,placing

~ICAO Report, para. 3.1.24. The fact that an aircraft is
within a commercialair corridoris not surprisingin the Gulf;
a total of 18 commercialair routes cross theGulf, covering at
least 50% of Gulf's navigablewaters. ICAOReport, AppendixE.
p. E-16.

2~~~~ Report, Appendix E, p. E-18. For example, at 6:51
UTC on 3 July 1988 -- right before IranAir Flight 655 was shot
down -- an Iranianmilitary C-130took off from BandarAbbas
using the same air corridoras used by Iran Air Flight 655.
ICAO Report, Appendix A, p. A-8. It is contrary to recommended
ICAO practice formilitary aircraftto squawk on otherthan
Mode II.

3~~~~ Report, Appendix E, pp. E-35-E-36.42 AERIAL INCIDENT 1401

itself at risk of attack. At approximately 6:54 WTC, after the

eleven warnings werenot answeredor acknowledged,the USS

Vincennes firedtwo missiles which interceptet dhe approaching
aircraftat a range of eight nauticalmiles from the USS

v-1.

The United States offeredrescue and recovery assistance to

the Governmentof Iran regardingIran Air Flight 655,but Iran

did not respond tothe Unitedstates2.

The USS Vincennes firedits missilesbecause its Commanding

Officer perceived theapproachingaircraft to be an Iranian
Although Iran
military aircraEtwith hostile intentions3.

'~he surface engagement with the Iraniangunboats ended
about 10minutes after theUSS Vincw fired its missiles.
ICA0 Report, Appendix A,pp. A-10 and A-12.

2~~~~ Report,~ppendix E, pp. E-45-E-46.

3~~~~ Report, paras. 2.11.5 and 3.2.1. The conduct of the
USS Vincw was criticizedin an article writtenby the
Commanding Officer of the USS Sides a year after the incident
occurred. D. Carlson, "Commentand Discussion",
which appearedppin a non-U.S.Government publication, representse,
one point ofview regardingcertain aspectsof the IranAir
Flight 655 incident, just as other articleson this incidentin
the same publication represented wholly differenv tiews.
a, N. Friedman, u. &., Exhibit 39, pp. 72-80.
~otwithstandingCommander Carlson'sreflections,the Commanding
Officer of the USS V- perceivedthat his ship was under
the threat of an imminentattack.has since the time of this incidentsought to equate it with

previousshootdownsof civil aircraft -- such as the shootdown

of Korean Air Lines Flight 007 in 1983 -- this comparisonis

not sustainable. Unlike the 1983 incident,the incidentof 3

July 1988 involved the rapid approachof an unidentified

foreign aircraftto a warship that was itselfengaged in armed

conflict initiated by the countryof the aircraft'sregistry.
ICAO's treatmentof the two incidents evidences the

international recognitiot nhat the incidentsare not

comparable. AERIALINCIDENT
CHAPTER III

ONCE IT BECAME KNOWN THAT THE AIRCRAFTSHOT DOWN WAS A CIVILIAN
AIRLINER,THE UNITED STATES INVESTIGATET DHE INCIDENTWITH A
VIEW TO PREVENTINGSUCH TRAGEDIES IN THE FUTURE ANDSOUGHT TO
COMPENSATETHE FAMILIESOF THE VICTIMS, WHILEIRAN IMMEDIATELY
SOUGHT POLITICAL CONDEMNATION OT FHE UNITED STATES BY THE UNITED
NATIONS AND THE INTERNATIONALCIVIL AVIATION ORGANIZATION(ICAO).

The responsesof the United States andIranto this

incidentwere different. The United States immediately sought
on its own and in conjunctionwith ICAO to investigatethe

incident withthe objectiveof determiningwhat happenedand

how to avoidsuch tragediesin the future. Furthermore,the

United States alsoimmediatelyexpressedits regret and

announced itsintent to provide compensationfor the families

of the victimsof Iran Air Flight 655. In due course, the

United States contacted Iranian authoritiesto obtain
informationon which to base the specific level of payments to

be offered to the familiesof the victims.

Iran, however, madeno effort todiscuss this incident with

the United States, let alone negotiateor arbitrateany

disputes betweenthem. Rather, Iranimediately and

unsuccessfullysought political condemnatioo nf the United

States at the United Nations Security Councia lndICAO. Iran

essentiallyignored repeatedefforts by the United Statesto
gather informationon the victimsand their Eamilies.Pl PRELIMINARYOBJECTIONS 45

Neither the Security Councilnor ICAO heeded Iran'sdemand

for political condemnation.The Security Councilon 20 July

1988 adopted by consensus (includingthe United States) a

resolution expressingits "deep distress"at the downing of

Iran Air Flight 655.
At the conclusion of an ExtraordinarySession of the ICAO

Council in July 1988, the Councilresolvedinter alia to

conduct a fact-findinginvestigationto determineal1 relevant

facts and technical aspects of thi encident. The purpose of

the investigation was generallyto help safeguardcivil

aviation,and specificallyto examine possiblerevisionstu

ICAO standardsand recommendedpractices,as necessary. Once
the investigationreport wascompleted by a team of experts,

the ICAO Council (with the United Statesand Iran

participating)discussed thereport. In December 1988, the

Government of Iran sought to have the reportexamined to

identifyany violationsof the Chicago Convention and drew the

Council'sattentionto Article 54 of that Convention. However,

Iran did not request that the Council undectake
dïspute-resolutionproceduresunder Article 84 of the Chicago

Convention,nor did Iran seek to apply the comprehensiveand

exclusive ICAO Rules for the Settlement of Differences

promulgatedto addressdisputesarisingunder that Article.46 AERIAL INCIDENT [44]

The Council dealt with this matter in its policy capacityunder

Articles 54 and 55of the Chicago Convention, whicd ho not

contemplate appealsto this Court.

The Council referredthe investigationreport to the Air

Navigation Commission (ANC) and, inMarch 1989, adopted by

consensusa wide-ranging resolutiot nhat, inter alia. noted the

reportof the Eact-findinginvestigationand endorsed the

conclusionsof the Air Navigation Commission on the report's
safety recommendations. This resolutiodnid not decide a

"disagreement"under Article 84 of the Chicago Convention.and

the proceedingshad no relation whatsoever with Articl 84.

Frustrated with its failurt eo obtain condemnation of the

United States through the politicaa lnd technical proceedings

of the ICAOCouncil, Iran now seeksto recharacterizeto this

Court the ICAO proceedingsand resolution as falling under

Article 84.

Section 1. The United StatesImmediatelyAnnounced Its
Flighti655oWhileenattthe Same Time Investigating the IncidentAir
and Taking Steps to Avoid Its Recurrence.

Unlkke Iran, which sought political condemnati ofn the

United States at the U.N. Security Counciland at ICAO, the

United States undertook immediatestepsto offer compensation1451 PRELlMlNARY OBJECTIONS

to the familiesof the victims, to approach Iran forthe

purpose of paying thiscompensation,to investigatethe

incident,and to take steps to improve safety guidelines where

possible.

. ' . .
çomDensa+ethe famues of the vict~msand a~~roachedthe
Governmrntof Iran to work out thedetu of&

tion. th^ Governaentot Iran ianoredthe UnitedStates'

. Shortly after the general factsof the incidenthad

been conEirmed,President Reaganexpressedhis regret that Iran

Air Flight 655 had been shotdown and his condolencesto the

Eamiliesof the victims. These sentiments were also publicly

stated by the vice Presidentand other U.S. offieia1s.l

In addition,on 11 July 1988, the White House announced
that the United States would offer compensationto the families

of the victims,with detailsconcerningarnounts, timing, and

l~tatementof PresidentRonald Reagan, 3 July 1988; White
House Çtatement,11 July 1988; Addressby AssistantSecretary
of State RichardS. Williamsonto the ICA0 Council, 13 July
1988; Statementof Vice President George BUS^ to the U.N.
Security Council, 14 July 1988. These statementsare reprinted
A-.Departmentof State Bulletin, pp. 38-43 (Sep. 1988) (Exhibit48 AERIAL INCIDENT [461

other matters to be worked out. On 13 July 1968, U.S.

Assistant Secretary of State Richard 5. Williamson announced

this offer to the ICA0 Council, in the presence of a

representative of Iran, stating that "the United States is

prepared to provide compensation to the families of the
victims, of al1 nationalities, who died in this accident."

Then-Vice President George Bushalso confirmed this offer in

the presenee of a representative of Iran in hi5 speech to the

U.N. Security Council on 14 Juiy 1988: "It is a strongly felt

sense of common humanity that has led Our government to decide

that the United Stateswill provide voluntary, ex aratia

compensation to the families of those who died in the crash of

#655'."

To implement its compensation plan, however, the United

States needed specific and accurate information about the

victims, including their ages and earning capacity, and their

families. Due to the lack of diplornaticrelations between Iran

and the United States, this could not be done through normal

l~tatement of Vice President George Bush to the U.N.
Security Council, 14 July 1988 (Exhibit 25).[471 PRELIMINARY OBJECTIONS

diplomaticchannels. Consequently, the United States
approachedthe Governmentof Switzerland, whichacts as the

protectingpower with respectto U.S. interestsin Iran, to

have the Swiss Government act on behali of the United Statesin

this matter1. On 23 September 1988, the Swiss Government

undertook to approach the Government of Iran to determine

whether it would allow the Swiss Governmentto act as an

intermediaryfor purposesof gathering information and

distributingcompensation2. On 23 January 1989, having
receivedno response,the United Statesorally requested the

Swiss Governmentto £0110~up.

'u.s. Cable dated 31 Aug. 1988, from Washington, D.C.to
Berne, Switzerlandinstructingthe U.S. Embassy to approach the
Swiss Ministry of ForeignAffairs to requestthat it serve as
an intermediarywith the Governmentof Iran; U.S. Cables of 2
Washington,1D.C. reporting Swiss Government reactiondt;.S.
Cable dated 23 Sep. 1988, £rom Washington, D.C. to U.S.
Embassy, Berne, Switzerlanp drovidingU.S. Embassy additional
guidance and noting that the next step would be for the Swiss
to determine Iran's dispositiot no Swiss involvementin this
matter (Exhibit 29).

'u.s. Cable dated 26 Sep. 1988, from U.S. Embassy, Berne,
Switzerlandto Washington, D.C., reporting Swiss Governrnent
agreementto approach the Government of Iran (Exhibit 29). AERlAL lNClDENT

On 8 February 1909, the IranianDepartmentof Foreign

Affairs providedthe text of a letter to the Swiss Government
from the "Iran Insurance company1". The letter assertedthat

the Iran Insurance Company claimed al1 of the financialdamages

arising out of the incident,both for persons andfor the

aircraft. Further, the letter said that the Company"declares

its readinessto introduceits representativein order to

determinethe amount of the damages and the method for

collection." However, nofurthermessages were received£rom

the Iran Insurance Company designatin such a representative.

On 30 March 1989, the United States requested t Sheiss
Governmentto transmitto the Governmentof Iran a diplomatic

note enclosinga letter to the Iran InsuranceCompany, asking

it to provide specifickinds of informationon the victimsand

'u.s. Cable dated 8 Feb. 1989, from U.S. Embassy, Berne,
Switzerlandto Washington,D.C. transmittingletter of the Iran
Insurance Company under cover of an IranianDepartmentof
Foreign Affairstransmittalnote (Exhibit29).r491 PRELIMINARY OBJECTIONS 51

their Eamilies,and to identifywhether it was an entity of the

Government of Iran. The Government of Switzerland did so on 16

April 198g1.

Having stilL receivedno responseErom the Government O€ '
iran or the Iran Insurance Company through the Governmeo nft

Switzerland,the UnitedStates asked the Swiss Government on 13

June 1989, to transmitboth a note to the Governmentof Iran

and a letter to the Iran Insurance Company again requesting

~u.s. Cable dated 30 Mar. 1989, from Washington, D.C. to
U.S. Embassy, Berne,Switzerland,instructingEmbassy to
Insurance Company;oU.S.mCable dated 31 Mar.te1989,tfrom U.S.
Embassy, Berne,Switzerlandto Washington, D.C., reporting
requestmade to the Swiss;Dip. Note 43, 16 Apr. 1989, Erom
Embassy of Switzerland in Iran to the IranianMinistry of
Foreign Affairs enclosinga letter to the Iran Insurance
Company in English and Persian (Exhibit 29).

On 17 May 1989, the Government of IraE niled its
Application before the Court. In it, Iran stated in a footnote:

"under the circumstancesand in,'particulat rhe United
States total refusalof al1 voluntary methodsof pacifie
settlementof the present dispute, the arbitrationreferred
to in Article 14(1) of the MontrealConvention cannot be
eonsideredas a viable course of action."52 AERIALINCIDENT [sol

that specific kinds of information be provided on the victims

and their families by July 1989. The Government of Switzerland

did so on 20 June 198g1. No response €rom Iran was received.

The United States ultimately concludedthat Iran was either

unwilling or unable to share this information. Because of

this, and because of difficulties generally in obtaining this

type of information, the United States decided to develop an

alternate compensation plan that would provide for essentially

uniform payments per victim, rather than based on the victim's

actual earnings and life expectancy. Under this plan, the

family of each wage-earning victim was offered $250,000, to be

divided among the surviving parents, spouse, and children

(families of non-wage earning victirnswere offered $100,000

kopy of U.S. Diplomatic Note of 13 June 1989 to the
Governrnentof Switzerland, enclosing thetext of a note verbale
to the Government of Iran and the text oE a letter to the Iran
Insurance Company; Copy of a Swiss DiplornaticNote of 26 June
1989 to the United States reportingits transmittal to Iran and
the Iran Insurance Companyon 20 June 1989 (Exhibit 29).i511 PRELIMINARYOBJECTIONS

each)l. Although the United States didnot anddoes not now

admit any Iiabilityin rnakingthis offer of compensation, the

arnountsoffered were calculatedin lightof internationallegal

standards,and were in fact quite generous in cornparison to

internationalpracticewith respect tocomparablevictims.

This compensation plan was communicateddirectly to the
Eive governrnentsother than Iran that had nationalson board

Iran Air Flight 655. On 11 July 1989, the United States

requestedthe Governmentof Switzerlandto delivera note to

the Governmentof Iran explainingthe new U.S. compensation

plan, which was developedon the basisof uniform payments.

The Governmentof Switzerlanddid so on 12 July 1989'. The

l~hisrnay be cornparedwith the approximatelyUS $20,000
(250,000 gold francs)ceiling per victirnfor claims that maybe
brought against an air carrier under the Convention forthe
Unification of Certain Rules Relating to International
Transportation by Air, concluded 12 Oct. 1929, 137 LNTS 11,
(commonlyreferredto as the "WarsawConvention"),as amended
by the Hague rotoc coo fl28 Sep. 1955, 478 UNTS 371 (towhich
Iran is a Party).

2~.~. DiplornaticNote of 11 July 1989 tothe Governmentof
Switzerlandrequestingtransrnittal of a note veibale to the
Governrnentof Iran; SW~SS DiplornaticNote of 12July 1989 to
the Governrnentof Iran (Exhibit 29).54 AERIALINCIDENT 1521

compensation plan wassubsequent ly announcedpubliclyl. Since
that time, of the seventy-nineidentified family members of

non-Iranians eligibleto receive compensation, thirty-two have

accepted and have been paidsuch compensation,for a total of

US $1,838,998. (The others areeither inthe processof being

paid orhave electedto pursue suits in U.S. courts.) None of

the Iranian family members havereeeivedcompensation, dueto

the Governrnentof Iran'sdecision to pursue these proceedings

and to preclude separaterecoveryby its nationals.
Tbe United Statesc-ediat- thorouah

ces of the incide.nL.

Immediatelyafter the incident,the United States convened its

own investigation into the circumstancesof the downing of Iran

Air Flight 655. The investigationwas conductedby Rear

Admiral William M. Fogarty,U.S. Navy, whoçe team arrived in

l~e~artrneno tf State Daily Press Briefingp ,p. 2-4 (17 July
1989) (Exhihit 30).

To date, the United Stateshas only been able to make
paymentsto the familiesof non-Iranianvictims because Iran
has chosen to litigate thismatter before this Court and has
forbiddenits nationals from acceptingU.S. paymentsor
otherwisesettling their claims outside the contextof the suit
before this Court.1531 PRELlMlNARYOBJECTIONS

Bahrain on 5 July 1988,and began forma1 hearingson 13 July

Çtatementsand testimonyoE witnesses were taken, the relevant

naval vessels were inspecteda ,nd informationwas collectedand

collatedwith respect to the professionaltrainingof the USS

Vincennes crew. the situationin which it was placedon 3 July,
and the details of Iran Air Flight 655. The report was

published and comrnunicated to ICA0 on 28 July 19~8~. The most

salient conclusionsof the reportwere:

"1. The USS VINCENNES did not purposelyshootdown an
Iranian cornmercialairliner. Rather,it engaged an
aircraft theCornmanding Offieer, USS VINCENNES believed ta
be hostileand a threat to his ship and to the USS
MONTGOMERY (FF 1082).

2. Based on the informationused by the CO in rnakinghis
decision, the short time frame availableto hirnin which to
make his decision,and his persona1belief that his ship
and the USS MONTGOMERY werebeing threatened,he actedin a
prudent manner.

hazardingone of their civilian airliners tby tallowing it to
Ely a relatively low altitude air route in close proximity
to hostilitiesthat had been ongoing for several hours, and
where XRGC gunboatswere activelyengaged in armed conflict
with U.S. Naval vessels.

'ICAO Report, Appendix E. AERIAL INCIDENT Lw

4. The downingof Iran Air 655 was not the resultof any
negligent or culpable conduc1 !y any U.S. Naval personnel
associatedwith the incident .

This reportwas given considerable weighb ty the ICAO

investigatingtearnand by the ICA0 Council (discussedbelow);

it 1s appropriatefor this Court to do so as well. The report

representsan early, contemporaneousreviewof the events that
occurred on 3 July 1988, based on interviews with servicemeo nn

the relevant U.S. vessels. A rernarkableaspect of the

investigationwas the availabilityof the USS V I ' data

recordings, which enabled the investigationteam to breakdown

the critical tirneperiod of the shootdowninto a "minutesand

seconds sequence" of actions as they occurredon the USS
vincennesZ.

Iran could have conducted ito swn investigation of the

incident and subrnittedto ICAO and to this Court any resultsof

that investigation, whichwould have then allowed the Courtto

weigh both reports. For its own reasons, however, Iran chose

not to do so. Had Iran done so, Iran could have explainedwhy

~ICAO Report, Appendix E, p. E-46.

2~t the time Iran Air Flight 655 was shot down, the
CommandingOfficer of the USS Vincennes did not know al1 of the
information includedin the U.S. investigationreport. Rather,
the U.S. Investigation Reportreflectsa thorough attemptby
the United Statesin the aftermathof the incidentto determine
the details of the incidentErom various sources. i551 PRELIMINARYOBJECTIONS 57

its gunboats werethreateningmerchant vessels and engaging in

hostile acts with U.S. vessels,why Iran did not issue a red

alert to civil aircraftonce hostile action occurred between

Iranian and U.S. forces,and why neither Bandar Abbas nor Iran
Air Flight 655 rnonitoredthe civil distress frequencyof 121.5

MHz. Instead, Iran chooses to make maximum usefor its own

purposesof the open and candid U.S. Governrnentreports and

testimony,while withholding anycomparablyopen and candid

assessmentsof its own conduct.

The United States took stem to irn~roveinternational
. .
proceduresto avoidreuence of such an inciden t The United

States has one of the largestcivil aircraft ÉLeets in the
world and consequentlyhas always been stronglycornmitted to

the safetyof internationalcivil aviation. Consequently, it

has promotedimprovementstoward thisend inthe relevant

provisionsof the Annexesto the Chicago Conventionand other

documents,as well as internationaloperatingpractices. In

the aftermathof the 3 July 1988 incident,U.S. civilian and

military experts met with ICAO to discuss concretesteps that

could prevent incidentsof this typein the future. Asa

result of the U.S. military investigation,as well as
comparable subsequent findings hy the ICAO investigation, the

United Statesundertook various steps to help precludeany58 AERIALlNClDENT 1561

further incidents of this type. The United Statesalso pursued

generally the objectiveof improvedmilitary and civilian
coordination through meetingi sn Montreal in August1988 and

again in January 1989 with officiaisof ICAO, the International

Federation of Airline Pilots Associations,and the

International Air Transport Association.

Section II. The Government of Iran Did Not Approach the United
States Either Directlyor Indirectly,but Rather Immediately
Sought Political Condemnation of the United Statesby the
United Nationsand ICAO.

In the aftermathof the Iran Air Flight 655 incident, the

Governmentof Iran did not approach the UnitedStates,whether

to seek an explanation, information, apology,or reparation.

This was the case even though the United Statea snd Iran have

communicated frequentlysince the breakingof diplornatic

relationsin 1980 through the good officesof their two
protectingpowers, the Government of Switzerlandand the

Governmentof Algeria, and have directlysettled and arbitrated

claims between each other on a daily basis before theIran-U.S.[571 PRELIMINARY OBJECTlONS

Claims Tribunalin The ~ague'. In many cases,these clairns

have involvedrnonetaryamounts,and politicalimplications,Ear
exceeding those involvedin the presentcase. Iran'sonly

response, however, was immediatelyto raise the incidentin two

multilateralfora, the United Nationsand the ICAO, and to seek

political condemnation of the United States.

The day after the incident, Iran sent a letter to the V.N.

Seeretary-General,stating that it expected theUnited Nations
to condemn the United States' actions and to take immediate

steps to eompel the United States ta remove its naval forces

from the ~ulf~, The U.N. SecurityCouncil convened to I

l~he Iran-U.S.Claims Tribunal isa product of the 1981
held by the Governmentof Iran inTehran. The Iran-U.S. Claimses
Tribunal is ernpoweredto decide, through bindingarbitration,
both private and intergovernmental claims arising from the
Islamic Revolutionin Iran and the resultingdisruptionin
commercialand economic relationsbetween Iran and the United
States. The Algiezs Accords arereprinted in Vol. 1,Iran-Y&
s Trlb-; in Departmentof State Bulletin, p. 1
(Feb. 1981); and in 20 I.L.M. 230 (1981).

ette dateer3 July 1988 from the Acting Permanent
Representativeof the IslamicRepublicof Iran to the U.N.
Addressedto the Secretary-General,U.N. Doc. S/19979 (Exhibit
26).60 AERIALINCIDENT [581

discuss the incident on 14 July 1988; after its deliberation,

the SecurityCouncil on 20 July unanimouslyadopted a
resolutionexpressing its "deep distress"at the downing of an

Iraniancivil aircraftl.

On the very dayof the shootdown -- 3 July 1988 -- the

IranianVice Minister of Roads and Transportationsent two

telexesto ICA0 Council President Assad Kotaiti enforminghim

of the downingof Iran Air Flight 655. In the telexes, Iran

requested President Kotaite to "take effective measures in

condemningsaid hostile and criminal acts", and invited
President Kotaiteand his experts "to havea visit and study of

this inhuman act of U.S.A. in PersionGulf [sic] promptly2".

l~es. 616, U.N. Sec. Council(282lstmeeting, 20 ~uiy
1988), U.N. Doc. S/RES/616 (Exhibit28). The debate ofthe
Security Council(2818th to 2821st meetings, July 1988) is
contained in U.N. Docs. S/PV.2818to S/PV.2821. Complete
copies of these documents havebeen depositedin the Registry
pursuant to Article 50 of the Rules of Court.
It must also be notedthat Iraniangunboat attacksagainst
commercial shipping continued even after ti hecidentof 3 July
1988. For instance,on 7 July 1988,an Iranianspeedboat
attackedthe Rornanian merchantvesse1 Uaresti. "Iranian
Speedboats AttackRomanian Ship", EUS, 11 July 1988, p. 14.

2~elexesfrom the IslamicRepublic'sVice-Ministerof Roads
and Transportation dated 3 July 1988. attachedto letterdated
4 July 1989 £rom ICAO Council President to ICAO Council
Representatives,ICAO Doc. PRES AK/165 (Exhibit10).1591 PRELIMINARY OBJECTIONS

This was followedon 4 July by a te1ex.b~the Iranian Vice

Minister of Roads and Transportationrequestingthat "this

grave matter be tabled in the ICAO Council as a matter of
urgency with the view that anextraordinary session of ICAO

Assembly be urgently convenedto conduct a thorough

investigationof al1 aspectsof thecatastrophe1."

None of these telexes referencedany specific provisionof

the Chicago Convention as the basis for Iran's request, much

less purportedto be bringing an "application" to the Council

under Article 84. Indeed, the 4 July telex requestedthat the

ICAO Assembly be convened. Under Article 48 of the Chicago

Convention,an extraordinary meetingof the Assembly may be
held upon thecal1 of the ICAO Council, which is established

under the Chicago Convention as ICAO's33-memberpermanent

governingbody. PresidentKotaite notified Iran on 4 July 1988

that he was "consulting the members of the Council concerning

the convening of an extraordinary session of ÇhfLÇouncil"

l~xhibit10, Telex from the IslamicRepublic's
Vice-Ministerof Roads and Transportation date4 d July 1988.62 AERIAL INCIDENT 1601

(emphasisadded)'; he then aqreed on 5 July 1988 to convene
such a session, to begin on 13 ~ul~~.

Section III. The ICAO ColincilResolvedto Undertake an
Investigationof the Incident€or the Purposeof Taking Steps
to Ensure Safety of Civil Aviation.

On 13 and 14 July, 1988, the ICAO Council metto consider

the requestfrom the Governmentof Iran. Not beinga member of

the ICAOCouncil, Iran was invited to participatein the

consideration of the incidentwithout a vote, and was
representedat the session, in accordance with Article 53 of

the Chicago Conventionand Rule 32 of the Rules of Procedureof

the Council.

Iran's requestto the Council had notbeen Erarned as a

differenceor disagreementon the interpretation oc application

of the Chicago Convention or of the Montrealconvention3.

l~etterdated 4 July 1989 £rom ICAO Council Presidentto
ICAO Council Representatives, W. u., Exhibit 10.

2~etterdated 5 July 1989 from ICAO Council President to
ICAO Council Representatives, ICAO Doe. PRES AK/166 (Exhibit
11).

3~etterdated 26 May 1989 £rom Dr. Michael Milde, ICAO
Legal Bureau Director, to the Court (Exhibit 24).KI1 PRELlMlNARY OBJECTIONS

Rather, PresidentKotaite, in introducing this matter on the
ICAO Council agenda, described the purpose of the Council's

work as follows:

"The imperativetask for theCouncil now is to collect
al1 vital informationand to reach a complete technical
understanding of the chainof events whichled to this
tragedy. We have to explore everyelementof our
international regulationsin the ICAO Standards,
Recomended Practices,guidancematerial and procedures
not only in theveareatwhere thif tragic incident occurred
but anywhereelse in the world ."

With this mandate,the ICAO Council did not treatthe

matter under consideration as a dispute betweentwo Partiesto

be resolvedunder Article 84of the Chicago Convention.During

the courseof the ensuing discussions,al1 the Council members,

including the UnitedStates, agreed withthe President'sview
that the role of the Council wouldbe to undertakean

investigationof the incidentand to promote improvements in

the Chicago Convention Annexea snd other documentsas may be

necessary. The Observerfrom Iran never challengedthis

characterization of the role of the Council. When the debate

l~inutes,ICAO Council {extra.sess., 13 July 1988), ICA0
Doc. DRAFT C-Min. EXTRAORDINARY (1988)/1,p. 4 (Exhibit 13).64 AERIAL INCIDENT P2]

on 13 July concluded,the Presidentsummarizedthe debate and,

without objection from Irana ,sked that the Council's
àeliherations be rcstricted to the technical aspects

surroundingthe 3 July 1988 incident,with a view to

determininga complete technical understandinogf the chain of

events whichhad ledto the incidentand to developing

technical preventative measures to ensure the safety and

security of international civil aviation1.There is no

indicationthat anyof the CouncilMembers or Iran believed
that the Council wasactingunder Article 84of the Chicago

Convention or referred in any way to that Article.

The next day, 14 July, the ICAO Council approved by

consensus (includingthe UnitedStates) as itsdecision a

statement by President Kotaite that expressedcondolences to

Iran and to the familiesof the victims,deplored theuse of

weapons againstcivilian aircraft,and instituteda

fart-findinginvestigation2. The debate preceding this

inut ut ICeOsCouncil (extra.sess., 14 July 1988). ICAO
DOC. DRAFT C-Min. EXTRAORDINARY (1988)/2,pp. 9-10 (Exhibit 14)1631 PRELIMINARYOBJECTIONS

statement indicatesthat the investigationwas undertaken by

the Council pursuantto its authority under Article 55{e) of

the Chicago Convention.At no time during the Council's

proceedingson 13-14 July 1988 did any participant,including
Iran, refer to Article 84 OE the Chicago Convention. Nor was

any mention made of the ICAO Rules for the Settlementof

Differences,the exclusivebasis for bringingArticle 84

disputes beforethe Council. Instead, the investigation was

ordered under Article 55(e) of the Chicago Conventionrather

than Article 8 of the Rules for the Settlement of Disputes.

This reflectsthat the Council believedit was carryingout a

broad mandate in its roleas a technicaland policy body and

not as a quasi-judicialbody1.

From 29 July through 28 September 1988, an ICAO
investigationteam (composedof £ive aviation expertsfrom the

ICA0 Secretariat of diverse nationalities)travelledto the

Middle East, London,and Washingtonto investigatethe

incident. The United States cooperatedfully in this

investigation. Theteamwas given a full briefingat the

discussion at Part III, Chapter II, section II.66 AERIALINCIDENT Lw

Pentagon in Washington,D.C., and by the Commanderof the U.S.

Joint Task Force MiddleEast andhis staff in the Gulf area,

includinga tour of the USS VAcennes. ICAO PresidentKotaite,

ICAO SecretaryGeneral Sidhu and other ICAO officiaisvisited

the Aegis Combat Systems EngineeringDevelopmentCenter in

Moorestown, New Jersey, wherethey receivedbriefings on the
computerized Aegis system that was employed onthe USS

Vincennes at the time of the incident. The investigationteam

asked forand receivedinformationfrom the Governmentof

Iran. Thetearnalso visited the IranianCivil Aviation

Authority in Tehran, the Tehranarea control center, Iran Air

headquartersin Tehran, and the BandarAbbas airport,touer and
approach control unit, and Iran Air station1.

On 7 Novernber1988, the ICAOreportwas completedand

distributed. The report provideda reviewof the factual

backgroundto the flight as well as an analysisof the facts

and certain conclusions.The reportgenecally eorroborated the

lworkingPaper (11 Nov. 1980),ICAO Doc. C-WP/8708,
restricted,para. 2 (Exhibit9).1651 PRELIMINARYOBJECTIONS 67

conclusionsof the U.S. InvestigationReport as to the causes

of theaccident. The ICAO Report found that the causes of the

incident were:
"3.2.1 The aircraft wasperceivedas a militaryaircraft
with hostile intentions and was destroyedby two
surface-to-airmissiles.

3.2.2 The reasons formisidentificationof the aircraft
are detailed in thefindings (paragraphs 3.1.23 and
3.1.24)."

Paraqraphs 3.1.23 and 3.1.24 of the ICAO Report are as Eollows:

"3.1.23. The initial assessment by US6 Vincennesthat the
radar contact (IR655) may have been hostile, wasbased on:

a) the fact that the flighthad taken off from a
joint civil/rnilitarayerodrome;

b) IranianF-14 deploymentto BandarAbbas an8 the nn
expectation of hostile activity;

c) the possibility of Iranianuse of air support in
the surfaceengagements with United States
warships;

d) the associationof the radarcontact withan
unrelated IFF mode 2 response; and

e) the appearanceof an unidentifiedradar contact
that coulà not be related toa scheduledtime of
departureof a civil flight.

3.1.24. The continued assessment as a hostile military
aircraftby USS Vincennes and the failureto identifyit as
a civil flight were based on the following:

a) the radar contacthad alreadybeen identifiedand
labelled as an F-14; AERIAL INCIDENT Lw

b) the lack oE response€rom the contact to the
challengesand warnings on Erequencies 121.5 MHz
and 243 MHz;

c) nodetectionof civil weatherradar andradio
altimeteremissionsfrom the contact;

d) reports by some personnel on USS Vincennesof
changes in flightprofile (descentand
acceleration)which gavethe appearance af
manoeuveringinto an attack profile;and
e) the radar contactwas tracked straighttowards
USS Montgomeryand USS Vincennes ona course
slightly diverging£rom the centrelineof airway
A59."

On 5-7 Decembec 1988, theICAO Council met in Montreal to

consider the ICAO report. Iran wascriticalof theICAO

report, largelybecause Iran believed it relied in parton

information containedin the U.S. military investigation1.

Most other Council members, however, commendedthe ICAOteam

l~lthou~hIran criticizedthe ICAO Report before the ICAO
Council, Minutes, ICAO Council (126th sess1 ., Mar. 19891,
ICAO Doc. DRAFT C-Min. 126/18 (Exhibit19), the ICAO report is
the productof an objective investigation by independent
experts of a highly specializedinternationalorganization.
Although Iran may not likethe fact thatmuch of the ICAO
Report confirms the findingsof the U.S. investigation report,
the fact is that essentiallythe same information available to
investigatingsteam, Eor it to review and determineon its own
the probativevalue of such information. TheICAO
investigation team impartiallyobtained, reviewed,and weighed
for accuracy information receiveb doth fromthe Government of
Iran and £rom the United States. The United States
respectfully urges the Court to accept thereport of the ICAO
investigationas an authoritative finding with regard tothe
incidentof 3 July 1988. [67] PRELJMINARYOBJECTIONS 69

for its report. Iran also pressetdhe Councilto condemn the

shootdown,but the Councilresolved by consensusto defer

substantive consideration of the reportuntil the 15-member
ICAO Air Navigation Commission (ANC) had an opportunity to

consider the reportand to recommendany improvernents in ICAO

standardsand recommended practicesl. As was the case for the

Couneil's meetingsin July 1988, at no tirneduring the

Council'sproceedings on 5-7 December 1988 did any participant,

ineludingIran, refer to Article 84 of the Chicago Convention.

Nor was any mention madeof the ICAORules for the Settlernent

of Differences, the exclusive basis for bringing Article 84

disputesbefore the Council.
During January and Februaryof 1989, the ANC reviewed the

XCAO report andEound that no significantimprovements were

needed inthe ICAO standardsand recommended practices.

Minutes, ICAO Couneil (125th seas., 7 Dec. 1988,
cloaed), ICAO Doc. ORAFT C-Min. 125/14 (Exhibit 17). The Air
Navigation Commission(ANC) is a technicalbody established
under the Chicago Conventioncomposed of aviation experts
appointed by the ICAOCouncil from persons nomineted by
Contracting States. Chicago Convention, Artic le. Article
56 providesthat "ttlhesepersons shall have suitable
aeronautics."sand expeciencein the science and practiceof70 AERIALINCIDENT i6~

Essentially,the ANCconcludedthat existing ICAOprocedures.

if properly implemented,were adequateto preservethe safety

of civil aviation1.

Consequently, during 13-17 Macch 1989, the ICAO Councilmet

again in Montreal to undertake substantive consideratioof the
ICAO report and the recommendationsof the ANC~. Iran once

again asked that theshootdown be condemned by the Council. In

responseto a motion bythe Soviet Unionand Czechoslovakia,

the ICAO Council votedon whether the resolution shouldcontain

co in ut ICAs,Air NavigationCommission (2 Feb. 1989),
ICAO Doc. AN. Min. 120-6;Minutes, ICAO Air Navigation
Commission (7 Feb. 1989), ICAO Doc. AN. Min.120-7; Minutes,
ICAO Air NavigationCommission (9Feb. 19891, ICAO Doc. AN.
Min. 120-8 (Exhibit 23). The ANC also concludedthat Annex11,
para. 2.15.1.1, of the Chicago Convention(Exhibit 4) shouldbe
upgraded to a standardand its text clarified. That paragraph
recommends that initial coordinatio of activitiespotentially
hazardousto civil aircraft shouldbe effected through theATS
potentially hazardous activitieoisalocated,in the event that
that authority is not the appropriateATS authorityfor the
geographicareas concerned.

inut ut ICAs,Council (13Mar. 1989). m. &. , Exhibit
19; Minutes, ICAO Council (126th sess.,15 Mar. 1989), ICAO
Doc. DWFT C-Min. 126/19 (Exhibit 20); Minutes, ICAO Council
(126th sess., 17 Mar. 1989), ICAO Doc. DRAFT C-Min.126/20
(Exhibit 21).[691 PRELIMINARYOBJECTIONS

languagecondemningthe United States. By a vote of six in

favor, 19 against,and six abstentions,the motion was

defeatedD/. Al1 31 Council members present at the meeting,
includingthe United States,voted on that motion. NO

objection was raised to the United States' participation in the

vote.

On 17 Narch 1989, after debate in which oralamenciments

were made to develop an acceptabletext, the ICAO Council

adopted by consensus the resolution of which lran cornplains.

The United Statesvoted infavor of this resolution;again no

objection was raised regarding the United States'participation

in the vote. In the Resolution, the ICAO Council said inter
that it:

"Dee~iv de~lores the tragic incident which occurred as a
consequenceof events and errors in identificationof the
aircraftwhich resulted in the accidental destruction of an
Iran Air airlinerand the loss of 290 lives;

again its profound sympathyand condolencesto
the Govecnrnentof the IslamicRepublicof Iran and to the
bereavedfarnilies;

ADDeala again urgently to al1 Contracting States which have
not yet done so to ratify,as soon as possible, the
Protocol introducingArticle 3 l& into theConvention on
International Civil Aviation; AERiALINCIDENT

institutedrbyothe SecretaryGeneral and endorsesthe
conclusionsof the Air Navigation Commission on the safety
recornmendationc sontainedtherein;

yraez States to take al1 necessary measuresto safeguard
the safety of air navigation, particularly by assuring
effective CO-ordination of civil and military a tivities
and theproper identificationof civil aircraft 5 ."

The resolution did not refer to Article 84 of the Chicago

Convention,nor did it purport to decide a disagreementbetween
two parties to the Chicago Convention.Once again, at no time

during the Council's proceedings on 13-17 March 1989 did any

participant,includingIran, refer to Article 84 of the Chicago

Convention. Nor was any mention made of the ICA0 Rules for the

Settlementof Differences,the exclusive basisfor bringing
Article 84 disputes before the Convention.i711 PREL~MINARY OB.IECTIONS

CHAPTER IV

IRAN. UNSATISFIED WITH THE RESPONSE OF ICA0 AND THE UNITED
NATIONS TO THE INCIDENT, FILED SUIT BEFORE THIS COURT ON 17 MAY
1989.

On 17 May 1989, Iran Eiled its Application with this Court,

purportealy seeking jurisdiction based on: (1) an appeal of

the 17 March 1989 ICA0 Council resolution.underArticle 84 of

the Chicago Convention; and (2) Article 14(1) of the Montreal

Convention. Pursuant to the Court's order of 12 June 1990,

Iran filed itsMernoriai on 24 July 1990, which pled an

additional basis of jurisdiction under the U.S.-Iran Treaty of

Amity. For the reasons stated in the following Parts, the

clairnadvanced by Iran is not sustainahle ujder any of these

bases. PART II

THE COURT HAS AUTHORITY IN THESE PRELIMINARY
PROCEEDINGS TO UPHOLD THE OBJECTIONS OF THE UNITED
STBTES TO THE COWRT'SJYBLSDICTION PRELIMINARYOBJECTIONS 77

Iran is invokingthree titlesof jurisdiction. They are

Article 84of the Chicago Convention, Article 14(1) of the
MontrealConvention,and Article XXI(2) of the 1955 Treaty of

Arnitybetween Iran and the United states1. Each of these

provisionsconfers on the Court jurisdictionto decide disputes

relatingto the interpcetationand application of the aubjact

convention once certain conditions are satisfied It is the

contention of the United States that inno case are the
applicable conditions satisfieda ,nd that the Court has no

jurisdictionunder any of those conventions. The United States

accordinglyis requesting thatthe Court addressthe issue of

jurisdictionfirst, in accordance with Article 79 of the Rules

of Court.

l~ranianMernorial, para. 2.01. The United Statesnotes at
the outset that, as Applicant,it is Iran's dutyto establish
that the Court has jurisdiction and that Iran's Applicati osn
otherwise admissible.S. Rosenne,Be Law ana Practiceof ths
mjnatiom Court p. 580 (2d ed..1.85) ("Generaliy. in
applicationof the principle actori ~nçumbit vrobati~ the Court
will formally require theparty puttingforwarda claim to
establishthe elementsof fact and of law on which the decision
in its favor might be given.") (Exhibit 62). The United States
will demonstratein this subrnission that Iran cannot meet that
burden. AERIALINCIDENT
Some of these objectionsdeal with purely procedural

prerequisitesto suit. Others go only to the questionof

whether thereis a reasonableconnection betweenthe convention

relied upon by Iran to establish jurisdiction and the claims

submittedto the Court. In our view, al1 of these objections

are sustainableon the basis of the facts allegedor adrnitted

by Iran, and on thebasis of any reasonable interpretatioo nf
the three conventions. Moreover, the Courtis authorizedto

address these objectionsduring this preliminaryphase even if

they raise issues that toueh upon the meritsof the case.

Paragraph 6 of Article 79 of the Rules of Court authorizesthe

Court to address al1 legal and factual questions that bear on

the issueof a preliminary objection, even to the extent of
adducingevidenceon such questions,in order to disposeof

that objection. The historyof that provision demonstrates

that itsessentialpurposewas to facilitateand encourage the

Court to dispose of cases at the preliminaryobjection stage

even where to do so may touch upon the merits of the proceeding.

In the early 1970s, in connection with theconsideration

of proposais to enhance the effectivenessof the Court,
representativesin the Sixth Comrnittee of the General Assernbly

criticizedthe previouspracticeof the Court in joining

preliminary objections with the merits. The debates in theC771 PRELIMINARYOBJECTIONS
Sixth Committee weresummarizedin 1970 in the analytical

reportof the Committeeto the GeneralAssembly as follows:

"In particular,the view was expressedthat it would be
useful for the Court to decide expeditiously onal1
questions relatingto jurisdictionand other prelirninary
issues whichmight be raisedby the parties. The practice
of reserving decisions on such questionspending
considerationof the meritsof the case had many drawbacks
and had been sharplycriticizedin connexion with the
South West Africh cases and theUcelona Tractioncase1."

This was repeatedthe nextyear and was summarized as follows
in the 1971 reportof theCommittee:

"Mention wasalso made of a suggestionthat theCourt
should be encouragedto take a decisionon preliminary
objections as quickly as possibleand to refrain from
joining them to the merits unlessit was strictly
essentialZ."

In 1972, theRules of Court were revised to encourage

rulingson prelirninary objectionsprior to the merits phase.

Previously,the Rules expresslyauthorizedthe Court to join

the objectionto the merits. Paragraph5 of Article 62 ofthe

1946 Rules had provided:
AEter hearing the parties the Courtshall give its
decisionon the objection or shall join the objectionto
the merits.

l~e~ortof the Sixth Committee, UNGA (25th sess., Dec.
1970), U.N. Doc. A/6238, p. 19 (Exhibit63).

2~eportof the Sixth Cornmittee, UNGA (26th sess., Dec.
1970), U.N. Doc. A/8568, p. 21 (Exhibit 63).80 AERIAL INCIDENT

in 1972, the Rules relatingto prelirninary objections were

revised to elirninatethis express authorization and provide

instead a rule intended toencouragethe dispositionof such

objectionsprior to the considerationof the merits, even if

this requiredaddressing questionsof law or fact that may

touch upon the merits. Paragraph of Article 67 of the 1972

Rules, which correspondsto paragraph 7 oE Article 79 of the

currentRules, provides:

decisioneinithe formof a judgmeot,byt swhich ite shall
either uphold the objection,reject it, or declare that
the objection does not possess, in the circumstances of
the case, an exclusively preliminary character. IE the
Court cejectsthe objectionor declares that it does not
possess an exclusively preliminary characteri ,t shall fix
time lirnitsfor further proceedings."

Moreover, the Courtadded a new provision in Article 6

that provides:

"In order to enable the Courtto determine its
jurisdictionat the preliminary stage of the proceedings,
the Court, whenever necessary.rnayrequest the parties to
argue al1 questionsof law and fact, and to adduce al1
evidence, whichbear on the issue."[79] PRELIMINARYOBJECTIONS 81

These revisions have been recognizedas introducing one of the

most important amendments to the ~ulesl.

Prior to these revisions, the Court had felt compelled to

join the issue of jurisdictionwith the merits where

determination of a preliminary objection required consideration

of questions of fact or lar that may bear a close relationship

to some of the issues on the rneritsof the case. As recognized

by one of the principal architects of the revisions, paragraph

6 is intended to provide a different solution to such

"In the presencs of such an objection, the Court, instead
of bringing in the whole of the merits by rneans of a
joinder. would, according to paragraph 6, request the
parties to argue at the preliminary stage those questions,
even those touching upon the merits, which bear on the
jurisdictional issue. Thus, there would no longer be
justification for leaving in suspense or for postponing a
decision of the Court's own jurisdiction2."

'E. Jimenez de Arechaga, "TheAmendments to the Rules of
Procedure of the International Courtof Justice," 67 A.J.I.L,,
p. 1, at p. 11 (1973) (Exhibit 64); G. Gufomar, Commentaire du
Pmnt de la Cour InteWnale de Justi~e - InterDretation
et Pratiaue, p. 371 (1972) (Exhibit 65).

2~. ~irnenezde Arechaga, QQ. d., Exhibit 64. p. 13.82 AERIAL INCIDENT

Similarly, Professor Guyomar concluded:

L'alinéa 6 reconnait à la Cour le droit d'inviter les
Parties a débattre tout pointde fait ou de droit, et a
produire tout moyen depreuve ayant traita la question de
la compétence de la Cour, ceci afin de permettre à cette
dernière de se prononcer sur ce point au stage
sur la nécessité de statuersur lacencompétence avants
d'entamer l'examen de l'affaire au fond :c'est la
élément nouveauet vraisemblablementtrès important Y.,,

The United States' objectionsto Iran's assertion of

jurisdictionunder the Chicago Convention, theMontreal

Convention, and the 1955 Treaty of Amity are the kind of

objections which can and should be disposed of under paragraph

6 of Article 79 of the Rules. Al1 of these objections,

including inparticular the objectionsthat go to the question

of whether there is a reasonableconnection between these

conventions and Iran's claims, address the fundamental issuo ef

the consent of the United Statesto the institutionof these

proceedings.

into English, ProfessorGuyomar concluded:. 371"Paragraphn6lated
acknowledgesthe Court's right to invite the Parties to debate
any point of Eact orlaw, and to produce any evidence relating
to the issue of the Court's jurisdictionin order to allow the
Court to rule on Chis point in the preliminary stage of the
proceduce. Uhis wav. the emahasis awBars to be ~laced on
n ....
undertakine an wnation . of the we on its merits..This 1%
a. (Emphasis added.) PRELIMlNARY OBJECTIONS

In accordancewith Article 36(1) of the Statute,the

jurisdictionof the Courtunder each of the three conventions

rnustrest on the consentof the States concernedl. As the

Court said in thePeace Treaties case, "The consentof States,

partiesto a dispute,is the basis of the Court's jurisdiction

in contentious cases2".

A state cannot, however, be presumedto have consentedto

jurisdictionsimply on the basis of a meze assertion by another
state that a particulardispute arises under one of those

conventions. As the Court expressly eoncluded in Bmbatielo~,

"It is not enough for the claimantgovernmentto establish a

remoteconnection betweenthe Eactsof the claim" and the

ùwlkUmian Oil Co.. Judm ent. 1...J. Re~uts 1952,
p. 93, at p. 103; Ambatielos.Pr~llminarO vblecttons. JudamCL
I.C.J. ReDOrtS 1952, p. 28, at p. 38; Uter~retation of Peace
Advisorv Onmon. I.C.J._BeDorts 195Q.map. 65,Fatsp.P71.e,

2~nter~rstation of peaceTreaties with Bulaaria. Hunoarr
and Rbmania. FirstPhase AdvisorvOuinion, I.C.J. ReDortS
m. p. 65, at p. 71.84 AERlAL INClDENT

treaty upon which jurisdiction was foundedl. The clairnant

l~mbatielos.Merit$, Judgment. I.C.J. Reaortp 1953, p. 10,
at p. 18. In that case, the question was whether the Court had
jurisdiction under a 1926 Treaty of Commerce and Navigation
between the United Kingdornand Greece to decide whether the
United Kingdom was under an obligation to submit to arbitration
a dispute between the two governments as to the validity of the
Ambatelios clairnin so far as the clairnwas based on an 1886
Treaty of Commerce and Navigation between theparties. The
Court rejected the contention by the United Kingdom that before
the Court could decide upon arbitration it was necessary for
the Court to determine whether the clairnwas actually or
genuinely based upon the 1886 Treaty, holding that to do so
would be to substitute the Court impermissibly for the special
commission of arbitration establishedunder the 1886 Treaty.
lb&, pp. 16-17. In the unique circumstancesof that case,
the Court concluded that it must determine whether the
arguments were "sufficiently plausible" to establish a
connection between theclaim and the 1886 Treaty. Jbid., p.
18. Before concluding that it had the jurisdiction to refer
the dispute to the special commission, the Court analyzed the
particular clairnto determine if it came within the scopeof
the 1886 treaty. Jbid., pp. 16, 18. For the purposes of that
case, the Court concluded that its function was limited to
deterrniningsimply whether the arguments were of a sufficiently
plausible character to warrant a conclusion that the claim at
issue was based on the treaty. Ji., p. 8 A few years
later, in a case involving a contract dispute between UNESCO
and four former ernployees,the Court was asked to address a
similar question of interpretation regarding the relationship
of the contract clairnsto the provisions of the Statute of the
Administrative Tribunalof the InternationalLabour
Organization. In that case, the Court concluded that "it is
necessary that the complaint should indicatesome genuine
relationship between the complaintand the provisions invoked"
and characterized the issue as "whether the terms and the
provisions invoked appear to have a substantial and not rnerely
an artificial connexionwith the ~efusal to renew the
contracts." J u 3 g m ~ n t s l of the
UO UDOn Com~laints Made affanst Un~sco. Ad visorv O~inion.
I.C.d.rts 1956, p. 77, at p. 89.[83] PRELIMINARYOBJECTIONS 85

government must establish a reasonableconnection between the

treaty and the claims subrnittedto the court1

For the purposes of disposing of the United States

objections, theCourt may rely on a reasonable interpretation

of the three conventions and upon the Eacts as allegedor

admitted by 1ran2. In accordance with paragraph 6 of Article

lBilitarv and P itarv Activities in and aaainst
Nicaragua {Nicaraguav. United Statesof Amerka). Jurisdictu
nt, I.C.J. ReDorts 1984, p. 392. at p.
427. In that case, the United Statesobjected that a treaty of
Friendship,Commerce and Navigation relied upon by Nicaragua to
establish jutisdietionin those proceedingswas irrelevant to
the subject matter of Nicaragua's claims before the Court and,
therefore, provided no basis for such jurisdiction. While the
Court concludedthat the treaty provided a basis for
jurisdiction,it did so on the basis of an analysis of
Nicaragua's claimsin light of the circumstancesin which
Nicaragua brought itsApplication to the Court and the Eacts
asserted by Nicaragua. A similar analysis of Iran's claims in
light of the circumstancesin which Iran brought its
Application to the Court and the facts asserted by Iran
demonstrate that the Chicago Convention, theMontreal
Convention, and the Treaty oE Amity do not provide jurisdiction
in these proceedings.

2~o the extent that a factual issue relating to the downing
of Iran Air Flight 655 arises incidentallyto the disposition
of these objections, that issue can be resolved on the basis of
the extensivepublic recordof the proceedingsof the ICA0 on
this matter. There is no need for a further examination of the
Eacts of this incident.86 AERIAL INCIDENT [841

79, the Court may and, in the view of the United States, should

uphold each of the objections of the United States without

proceeding to the merits of this case.

In its Mernorial,Iran asserts that the United States has

violated international law in a nurnberof respects unrelated to

the three conventions upon which it relies to establish the

Court's jurisdictionand requests the Court to make findings

based upon those violations, without even a pretense of

establishing the jurisdictionof the Court to entertain such

claims. Iran has not asserted thatthe jurisdiction of this

Court arises under Article 36(2) of the Statute of the Court,

nor pursuant to the compromissory clausesof any convention

other than the three discusaed above. In its Mernorial,

however, Iran makes various assertions that the United States

has violated the United Nations Charter,principles of the

Hague Conventions of 1907, and rules of customary international

law regarding the use of force, neutrality, sovereignty,

non-intervention, and the law of the sea1. In the submissions

l~ranian Mernorial, @p. 2-3.w] PRELIMINARY OBJECTIONS 87

contained in its Memorial, Iran asks the Court to find that by

shooting down Iran Air Flight 655 the United States has

violated "fundamental principles of international law", and

that by stationing and operating warships and aircraft within

Iranian territorial sea and interna1 waters the United States

has violated "general and customary international lawl-. The

United States denies that its actions have violated any of

these conventions, principles,or rules of customary

international law. In any event. this Court does not have

jurisdiction to determine whether the United States has

violated the United Nations Charter, the Hague Conventions, or

the rules of customary international law, and must accordingly

disregard these allegations.

l~ranianMemorial, Fourth and Ninth Submissions.88 AERIALINCIDENT [861

Iran also states,and requests this Court to find, that

the action of the United States on 3 July 1988, is an

"international crime1". The United States strongly protests

the assertion of this baseless claim. This Court was not

established as a criminal court and States have never consented

to its operation as such. Since the Court iswithout

jurisdiction to make such a finding, those parts of the Iranian

case based on "criminal" alleqationsmust be immediately

dismissed.

l~ranianMemorial, para. 1.03; Sixth and Eleventh
Submissions. PART III

THE COURT DOES NOT HAVE JURLSDICTION UNDER ARTICLE 84 OF
THE WLCAÇQCONVENTION ON INTERNATIONAL CIVIL AVLKLLQN1891 PRELIMINARY OBJEcTloNs 91

In its Applicationand its Mernorial, Iran asserts that the

Court has jurisdictionon the basis of Article 84 of the

Chicago convention1,in the guise of an appeal Erorna 17 March

1989 decisionof the ICAO Council. These assertionsare

completelywithout foundationin factand in law. The clear

and unambiguousrecord of the deliberationsin the ICAO Council
-- including Iran's ownstaternents before the Council --

establishesbeyond questionthat the Council was never seised

of a disagreementbetween Iran and the United Statespursuant

to Article 84 oE the Convention. Instead,al1 of the Council's

actions weretaken pursuantto Articles 54 and 55 of the

Convention,provisionsunder which most of the Council's

business is conducted. Inall such cases, decisionsof the

Council are finaland not subject to appeal tothis Court.

Iran has utterly ignoredthe Council's broadmandate under

articlesof the Chicago Convention other than Article 84 to
examinernattersthat may involvethe applicationor

interpretationof the Convention. Indeed,Iran's pleaaings

would leave the impression thatany ICAO Council decision that

-

l~heChicago Conventionappears at Exhibit 1.92 AERIALINCIDENT

bears on the applicationor interpretationof the Chicago

Conventionis, perforce,a decisionunder Article 84. On the

contrary,such issues are rarelydealt with under the
quasi-judicialproceduresof Article 84, and when theCouncil

has resortedto Article 84 it has always made clear that it was

doing so.

ICAO many years ago adoptedeomprehensive,exclusive,and

mandatory rules and proceduresfor the handling ofArticle 84

disputes. The record ofthe relevantCouncil deliberations

establishes beyond doubt that Iran never invoked Article 84 or

those exclusiveprocedures. The Council's deliberationd sid

not address a disagreementrelatingto the interpretationor
application of the ChicagoConvention between Iraa nnd the

United States. Insteadt,he Council carriedout its essential

responsibility totake measures to ensure the safety of civil

aviation. It Eollowsthat the proceedingsof theCouncil do

not -- and were never intendedto -- form abasis for any

review by this Court withinthe scope of Article 84.

Having attemptedto rewrite history 'CO recharacterizethe

Council'sdeliberations as Article 84 proceedings, Iran asks

this Court to overturn and disregard those long-established
rules developedby ICAO and the ContractingStates to the

Chicago Conventionthat enable the Council to perforrnits[911 PRELIMINARYOBJECiïoNs 93

quasi-judicialfunctionsunder Article 84. Such a ruling would

threaten the institutional integrit and proper funckioningof

ICAO by rnakingsubject to appeal a broad range of Council

decisions taken under articles otherthan Article 84. The
United States submits that the respectdue a coordinatebody of

the United Nations obliges the Court to reject Iran's assertion

Moreover, by asking the Court to hear an appeal where no

Article 84 proceedingever occurredbefore the Council, Iran

asks for this Court to act as a court of first instance,rather
I
than as a court of appeals. As Article 84 permits this Court

to act only as a court oE appeals, Iran's argument rnustbe

l~or purposesof clarity, the United States in this part
focuses its argument onthe Eactthat the 17 March 1989 ICAO
Council resolution about which Iran cornplains was not a
decisionof the ICAO Council pursuantto Article 84 of the
Chicago Convention. As Iran has failed to satisfythis basic
requirement, the United States does not in this pleading raise
other arguments which might be regardedas Eundarnental in
character. For example. the Chicago Convention,including
Article 84 thereof,does not regulatein anyway the conductof
surface vessels engaged in active combat. Exhibit 1, Arts. 89
and 3. The United Statesreservesthe right to adduce these
arguments,if necessary,at a subsequentpoint inthese
proceedings. AERIAL INCIDENT

CHAPTER 1

THE CHICAGO CONVENTION ANDTHE ICAO RULES CLEARLY DISTINGUISH
BETWEEN THE ICAO COUNCIL'S QUASI-JUDICIAL FUNCTIONS UNDEA
ARTICLE 84 (FOR WHICH THERE IS A POSSIBILITYOF APPEAL TO THE
COURT) AND ITS FUNCTIONS UNDER OTHER ARTICLES REGARDING THE
IMPLEMENTATIONOF THE CONVENTION (FOR WHICH NO REVLEW BY THE
COURT IS PROVIDED).

In examining Iran's treatmentof the Chicago Convention

issues, the United Statesis struek by the omission £rom the

Iranian Application andMemorial of basic and fundamental

information concerning the operation of ICAO. Although Iran's

Memorial oEten cites legal commentaries on disputeresolution

in ICAO, it fails to mention the fundamental observationin

these commentaries that the Convention envisages two distinct

and mutually exclusive methodsunder which the ICAO Councilmay

examine matters involving the Convention.

On the one hand, the ICAO Council is a principal policy

organ of the Organization and ia called upon to deal with a

broad range of aviation matters. These will necessarily

include, from time to tirne,matters that raise issues

concerning the application or interpretatioo nf the Chicago

Convention. On the other hand, on truly rareoccasions, the

Council is called upon, undec Article 84, to act as a

quasi-judieialdispute-settlement organ. Article84 States:

"If any disagreement between twoor more contracting States
relating to the interpretationor application of this
Convention and its Annexes cannot be settled by
negotiation, it shall, on the applicationof any State
concerned in the disagreement, be decided by the Council.
No member of the Council shall votein the considerationby i931 PRELIMINARY OBJECTIONS 95

the Council of any dispute to which it is a party. Any
contractingState may, subject to Article 85, appeal from
the decisionof the Councilto an ad hoc arbitral tribunal
agreed upon with the other parties to the dispute or to the
PermanentCourt of International Justice.Any such appeal
shallbe notifiedto the Councilwithin sixty days of
receipt of notificationof the decisionof the Council."
As described in greater detail below, to enable it to carry

out this function,ICAO many yearsago developedparticular

Rules for the Settlementof ~ifferencesl. Those rules are

detailed, comprehensive,exclusive,and mandatory in all

instancesin which the Council acts under Article 84 of the

Convention,

Absent from Iran's lengthyHernorial is any mention of the

distinction between the Council's quasi-judicialfunctions

under Article 84 and its functionsunder other articles. Even
more conspicuous is the absence ofany referenceto the

Council'sRules for the Settlementof Diffecences. By ignoring

these fundamental facts, Iran would attemptto mislead this

Court into believingthat the Councilwas acting under Article

84 in its considerationof the 3 July 1988 incidentand, thus,

into a manifestlyerroneous application of the Court's

jurisdictionunder Article 84.

l~ules for the Settlementof Differences, ICAO Doc. 7702/2
of9the Rules, in the English, French, SpanishaIC,nd Russian
languages,appear at Exhibit 6.96 AERIAL INCIDENT 1941

Section 1. The ICAO Council, Acting Under Articles of the
Chicago Convention Other Than Article 84, Has the Power and
Obligation to Deal with a Broad Range of Potentially
Contentious Aviation Matters Involving the Applicationof the
Convention, WithoutPossibilityof Review by the Court.

In addition to being a multilateral agreementthat

prescribes general rules for internationalcivil aviation,the

Chicago Convention createdl and established the charterof the

International Civil Aviation Organization (ICAO). The

Convention establishedtwo principal policy organs of ICAO, the

Assembly and the Council. The Assembly, which is composed of

representativesof al1 Contracting States, "shall meet not less

than once in three years and shall be convened by the Council

at a suitable time and place2." As provided inArticle 50(a),

the Council is a permanent body which is "responsibleto the

Assembly" and is composed of thirty-three Contracting States

elected by the Assembly.

As provided in Articles 54 and 55, the scope of the

Council's functions is broad. Article 54 prescribes 14

mandatory functions of the Council. Among other things, the

Council is obliged to report toContracting States any

infractionof the Conventionor failure oE a Contracting State

l~xhibit 1, Art. 43.

'~xhibit 1, Art. 48.1951 PRELIMINARY OBJECTIONS

to carry out Council recommendationo sr determinationsl;to

report to the Assernblyany infractionof the Conventionin

which a Contracting Statehas failed to take appropriate

action2;to adopt international standards and recommended
practicesdealing with air navigationand other rnatters3; to

consider recommendationsof the Air Navigation Commissionfor

amendmentof standardsand recomrnended practices4;and, most

relevantin light of its discussionsin the Iran Air matter, to

"[clonsiderany matter relatingto theConvention whichany

Contracting State refers to its."

Permissivefunctionsof the Council are set forth in

Article 55 and are also broad. They include the right to

"[clonductresearchinto al1 aspects of air transportand air
navigation"of international importance6and to

l~xhibit1, Art. 54(1}.

'~xhibit Ir Art. 54(k).

3~xhibit 1, Art. 54(1).

4~xhibit 1, Art. 54(m).

5~xhibit 1,Art. 54(n).

6~xhibit 1,Art. 55(c).98 AERIAL INCIDENT [961

"[ilnvestigate,at the requestof any ContractingState, any

situation whichmay appear to present avoidable obstacles to

the developmentof internationalair navigation1." In light of

the authorities grantedto it under the Chicago Convention, the

ICAO Council enjoysa broad mandate to deal with a wide range

of issues involvinginternational civilaviation. Because of

the breadth and overlapping natureof the Eunctions setEorth
in Articles 54 and 55,Council actions typically engags eeveral

of its enumeratedpowers under those Articles. It is manifest

that incarryingout its multitudeof functionsunder Articles

54 and 55, the Council willbe called upon to considermany

kinds of contentiousissues. Those issues willfrequently

involvequestions concerning, among other things. the

interpretationor applicationof the Chicago Convention.

The practice of the Organization, moreover, indicate tshat
Council discussions concerning the applicatio on

interpretationof the Convention are undertaken routinely

outside the Érameworkof Article 84. In its 132 sessionssinee

its creation, theICAO Council has convened over a thousand

l~xhibit 1,Art. 55(e)1971 PRELIMINARY OBJECTIONS 99

meetings and renderedrnanythousandsof decisionsof various
kinds. In contrast, overthat periodthe Council hasbeen

called upon only three times to exercise its Article 84

powersl. Not surprisingly,absent a specificinvocationof

Article 84 procedures by a Contracting State, the Counciw lould

have no basis to believe that it was decidinq a dispute under

Article 84.

In operation, Articles 54 and 55 of the Chicago Convention
give the ICAO Council wide latitude to address issuesrelating

to the interpretationor applicationof the Convention. In one

well-known instancein 1955, the Government ofCzechoslovakia

charged before the Council that the United Stateshad launched

leaflet-carrying balloons into Czechoslovakian airspace2. In

'M. Milde, "Dispute Settlementin the Frameworkof the
International Civil Aviation Organization",Settlementof SDace
Law Dis~uu, p. 87, at p. 90 (1980) (Exhibit 66); N.M. Matte.
ise on Air--cal Law, pp. 205-207 (1981) (Exhibit
67); R. Gariepy and D. Botsford,"The Effectivenessof the
International Civil Aviation Organization's Adjudicatory
Machinery", 42 2 , p. 351, at p.
357 (1976) (Exhibit 68); ICAO,gepertorv - Guideto the
-ontional Civil Aviktjsa, ICAO Doc. 8900/2,
Art. 84, pp. 1-4 (2n. ed. 1977) (Exhibit 69); a T.
Buerge.tha., ,p.-M123 (1969)t(Exhibitl70). Civil AviU
Oraanazahm
2~or a more detaileddiscussionof the ICAO Council
discussionsof the weather balloonmatter. T. Buergenthal,
a. &., Exhibit 70, pp. 131-36.100 AERIAL INCIDENT

its charges against the United States in the ICAO Council,

Czechoslovakia clairneàviolations of Articles 1 and 8 of the

Chicago Conventionand asked the Council under Article 54(j)

and 55(e) to take effective stepsagainst the release of the

balloonsl. Although the issue brought by Czechoslovakia

entailed both the interpretationand applicationof the

Convention, it was not an Article 84 disagreernent2.

More recent examples of matters that involvedthe

application of the Chicago Conventionand thatwere not handled

under Article 84 inelude requests for ICAO Courtcilaction

involving Israel's 1973 downing of a Libyan airliner over the

Sinai and the Soviet Union's 1983 downing of Korean Air Lines

IT. Buergenthal, p~. d., Exhibit 70. p. 133.

2~ro£essorThomas Buergenthalhas noted that "the ICAO
Council did not regard the Czech cornplaintagainst theU.S. as
an application for adjudicationunder Article 84 of the
Convention because Czechoslovakiahad not invoked that
provision. . . ." T. Buergenthal, m. d., Exhibit 70, p. 135.i991 PRELIMINARY OBJECTIONS

Flight 007~. In both instances, the Counciladdressed
shootdowns of civil aircraftunder its Article 54 and 55

authority2. In both, the Council addressea dllegations that

the state in question had violated provisionsof the Chicago

Convention. In neither instancedid the Council consider and

l~~~O'ssummary of the ICAO Council'shandlingof the
Libyan airlinershootdown appearsin Action of the ICAO
Council, ICAO Doc. 9079 (78th sess., Jan. - Mar. 19731,
pp. 11-13 (Exhibit44); Action of the ICAO Council (79thsess.,
May - June 1973), ICAO Doc. 9097, pp. 30-34 (Exhibit46).
ICAO's surnrnaroyf the ICAOCouncil'shandlingof the Korean Air
Lines shootdown appearsin Action of the Council (110th and
extra. sess., Sep., Oct. - Dec. 1983),.ICAO Doc. 9428,
pp. 20-28 (Exhibit 57); and Action of the Council(111thsess.,
Feb. - Mar. 1984). ICAODoc. 9442, pp. 9-11 (Exhibit 59).
*AS reflectedin the ICAO Record of its Action in its 78th
Session, the ICAO Investigation of the Libyanairliner was
ordered by the Councilpursuant toArticle 54(b). Exhibit 44,
p. 12. Sirnilarly, as reflectedin the Council minutes,Council
consideration of the Soviet shootdown of the Koreanairliner
began atan extraordinary session on 15 and 16 September1983,
which, pursuantto Article55(e), requestedthat theSecretary
General prepare afact-Einding report.Minutes, ICAO Council
(111th sess., Feb.- Mar. 1984), ICAO Doc. 9441, pp. 85. 90, and
102 {Exhibit 58). SubsequentICAO Council actionon the Korean
airliner incident,includingthe Council's 5 March 1984
resolutionthat,inter alia, condemnedthe SovietUnion, was
taken under the Council's mandateta consider that report.
Exhibit 59, pp. 9-11.102 AERIAL INCIDENT [lool

decide those matters under Article 84'. In neither instance
did any of the parties involved attemptto appeal the Council's

decision to the Court or suggest that there was any option to

do 50.

'1n the Council deliberations of 4 June 1973, theIsraeli
observer
". . . questioned theright of Egypt and Lebanon,under
Article 53 of the Convention,to vote on the resolution.
When the Directorof the LegalBureau expressed the opinion
that this Articlewas linkedwith Article 84 and that
sponsorship of the resolution did not make Egypt and
Lebanon parties to a 'dispute', he (the Representativo ef
Israel) rejoinedthat the differenceof opinion between
these two States and Israel on the interpretationof the
report now beEore the Council was a dispute withinthe
meaning of Article 53. Hedid not press the point after
the President indicatedthat the term "dispute" within
Article 53 had always been interpreteaas a dispute within
the meaning of Article 84. . . ."
Minutes, ICA0 Council (79thsess.,May - June 1973, closed),
ICA0 Doc 9073, p. 27 (Exhibit 47). In rejectingthe Israeli
suggestion, the President of the Council alluded tothe strict
distinctionin the Chicago Convention between Council
deliberations under Article 84 and Articles 54 and 55. The
Presidentspecificallynoted that"if every differenceof
opinion between States on matters comingwithin theorbit of
the Conventionwas considereda 'dispute', the Council would
have no tirnefor other business." U., p. 56. As noted above,
the Israeliobserver did not press thepoint preciselybecause
al1 participants recognized that the Council discussion wasnot
being conducted pursuant to Article 84.[Io1] PRELlMlNARY OBJECTlONS

The Chicago Convention provides that only disputesthat

satisfy the requirementsof Article 84 rnaybe subjectto appeal
to the InternationalCourt oE Justice. The Convention does not

permit decisions taken pursuantto Articles 54 and 55 to be

appealedto the Court, and the Court hasno jurisdictionunder

Article 84 to considersuch "appeals".

Section II. In Carrying outIts Article 84 Functions,ICAO Has
Developed DetailedRules for the Settlement of Differences,
Which Are the ExclusiveBasis for Bringing Article 84 Disputes
Before the Council.

In addition to carrying out thepolicy functionsdescribed
in Articles 54 and 55 of the Convention, the Councilu ,nder

Article 84, may be called uponto act as a quasi-judicialbody

in theformal resolutionof disputesbetweenContractingStates

involvingthe interpretation or application of the Convention

which are referredto it under that Article. In carryingout

its functionsunder Article 84, the ICAO Council iscalled upon

to functionvery differentlythan when it conductspolicy

deliberations under Articles 54 and 55. As explainedby

Professor Bin Cheng:

Articleh841.ethe Council mustoconsideroitself antesunder
international judicialorgan and act in accordancewith AERIAL INCIDENT [lo21

rules of international law governing judicial proceedings.
mays,be national representativesnorninatedby Governmentshey
must, when functioning under Chapter XVIII of the Chicago
Conventi n 1944, act in an impartial and judicial
capacity P.:,

Confronted with this obligation under Article 84 to

function as "an international judicial organ [acting] in

accordance with rules of international law governing judicial

proceedings", the Council realized many years ago that its

ordinary procedures were inadequateand that special procedures

-- to be employed only under that Article -- were needed.
fhus, in 1952, when ~ndia brought a formal cornplaintin the

Council against Pakistan for alleged violationsof the Chicago
Convention, the Council,acting under its Article 54(c}

authority to "[dletermine its organization and rules of

procedure2", adopted provisional rules of procedure governing

the discharge of its functions under Article 84 and established

'gin Cheng, The Law of Internatim Air Trans~ort. pp.
100-101 (1962) (citations omitted) (Exhihit 71).
. . .
21n A~Deal Relatina to the Jurlsdiction of the ICAO
Counc~l. Judam~nt. 1.U. Reports 1972, at p. 74, Judge Lachs
54(c) of the Convention] the Council approved,onit [u9dApril 1957,
the 'Rules foc the Settlernentof Differences'. . . ."[IO31 PRELIMINARY OBJECTIONS 105

a working group to reviewand improvethose rules'. The

Council provisionallyadopted the rules in 1953. After

receiving commentsfrom Contracting Statesto the Chicago
Convention, the Council promulgateEdinal Rules for the

Settlement oE Differences(hereinafterreferred taas the

The Rules are twlusive basis for brinoinaArticle 84

disautes. Paragraph1 of Article 1 of the Rules states in

pertinent part:

govern the settlementof the followingdisagreementssl sha1L
between Contracting States whicm hay be referred tothe
Council:

(a) &y disagreementbetween two or more Con-
tractingstates relatingto the interpretationor
applicationof the Convention on International

'T. Buergenthal,m. u., Exhibit 70, p. 180. An
excellent description of the Rules appears in R.H. Mankiewicz,
"Pouvoir Judiciaredu Conseil et Reglementpour la Solutiondes
Differends", 3 -aire F~ançaisde Droit Intem. pp.
383-404 (1957) (Exhibit 72, with English translation).

2~. Buergenthal, pp. a., Exhibit 70, p. 183. Since
November 1975, when theRules were amendedin minor respects,
the Rules have remainedunchanged. AERIAL INCIDENT [1041

Civil Aviation. . . and its Annexes (Articles 84
to 88 of the Convention) . . . ."
(Emphasisadded.) Thus, the Rules make clear at their outset

that DY disagreement whichis to be decidedunder Article 84

of the Conventionmust be submittedto the Council and decided

in accordance with the Rules. Other articlesof the Rules al50

emphasizethe mandatory nature of the Rules. Thus, under

Article 2, any State submittinga disagreementto the Cauncil
under Article 84 "shall" file an application. In thisway, the

Rules put States on notice of what typesof submissionswill

constitutean "application"under Article 84.

U carrvinriout the reauirementsof the Rules. ~artiesand

the IW Council createa cle-mentarv recordwhich

estabhshes whether a disaareementrelatinato the intek
. ,
pretatlonor a D D l i c a t i ~ n in fact been
-. The Rules place a heavy emphasison

written proceedingsl. For example,Article 2 of the Rules

provides:

"Any Contracting State submittinagdisagreementta the
Council for settlement(hereinafterreferredto as "the
applicant")shall filean application to which shall be
attacheda mernorialcontaining:

T. Buergenthal, pe. &., Exhibit 70, P. 18911051 PREtlMlNARY OBJECTIONS 107

Contracting State with whichplthe disagreementexists (the
latter hereinafterreferredto as "the respondent"):

(b) The name of an agent authorizedto act for the
applicantin theproceedings,together withhis address,
at the seat of the Organization,to which al1 cornmunications
relatingto the case, includingnotice oE the date of any
meeting, should be sent;

(c) A statementof relevantfacts;

(d) Supporting datarelatedto the facts;

(e) A statementof law;

specificpoints submitted;red by action of Council onthe

(g) A statementthat negotiationsto settle the dis-
agreementhad taken place between the parties but were not
successful."

Articles 5 and 6 set forth rules for a respondentState's

submissionof a counter-mernorial anp dreliminaryobjections.

In each instance,such responsesmust be in writing.

Other provisions reinforce the Rules' emphasison the

development O£ a written record. Thus, under Article 9,

parties that wish to produce informationin addition tothat
contained in theirwritten pleadings(includingtestimony of

witnesses and experts) are required tosubmit that evidence in

writing, absent a Couneil order to the contrary. Similarly,

Article 12(2) providesthat final arguments,absent a Council

order to the contrary, mustbe presented inwriting, and

Article 15(2) States that "[tlhe decisionof the Council shall

be in writing". 108 AERlAL INCIDENT

The mies imwlear and distinctive procedural

cesuirern~n- C~unciL. Just as the Rules instruct

parties how they may bring and defend a proceeding beforethe

ICAO Council under Article 84, the Rules establish requirernents

of comparable Eormality on the Council and other ICAO organs.

Thus, upon receipt of an application instituting proceedingsin

the Council under Article 84 of the Convention, Article3

requires the ICAO Secretary Generalto verify cornpliancewith

Article 2 of the Rules by the applicant State;to notify al1

parties to the Convention and al1 mernbersof the Council that

an applicationhas been received; and to forward the

application and its supporting documentationto the respondent

Sta\e, invitinq the respondent Stateto submit a counter-

mernorialwithin a time limit fixed by the Council.

Chapter IV (Articles 7 through 20) of the Rules establishes

extensive additional procedural requirementt shat govern Article

84 proceedings. These include rnatterssuch as the filing of

additional pleadings (Article 7): the production of evidence

(Article 9); and questions during oral argument (Article 11).

Similarly, Article 15 establishes detailed requirements for

Council decisions.il071 PRELIMINARY OBJECTIONS 109
Section III. The ICAO RulesProvide EssentialProtectionsto
Contracting Statesand to ICAO as an Organization.

It is not by accidentthat theRules are formulatedas they

are. Indeed,as noted above, the Rules representmany years of

careful workand review by jurists,the ICAOCouncil. and the

Contracting States. ThRules serve three importantfunctions

which protect both the parties to an Article 84proceedingand

the institutional integrityof the ICAOCouncil.
First, the Rules ensure that theparties to a disputewill

enjoy essential and fair notice of the proceeding,an

opportunity ta present legal argumentsand factualevidence,

and a reasonedand written decisionby the ICAO Council.

Second, the Rules ensure the creationof a proper

quasi-judicialrecord, which wouldenable the Courtor a

reviewingarbitral tribunalto evaluate the decisionmade by

the Council without necessarilb yeing requiredto speculate
of the disputantsor the rationaleof
about whatthe arguments
the Council rnighthave been. In this way, the Rules preserve

the clear intent oE Article 84 that the ICAO Council be the

forum of first instancein resolvingdisagreementsrelatingto

the interpretation or application of the Convention.

Finally, the Rules safeguardthe proper functioningof the

ICAO Council and, ultimately, of ICAO itself. As has been

noteà above, the ordinary function of the ICAOCouncil is that

of a policy body, whichenjoys a broad mandate to examine and

deal with a wide array of matters involvinginternationalcivil110 AERIAL INCIDENT

aviationand the Chicago Convention. In contrast,under

Article 84, the Council is called uponto exercise an

extraordinaryand far differentfunction,as a quasi-judicial

body. Notonly do the Rules instructthe Council how it shall

act once proceedingsunder Article 84 are initiatedby recourse
to the Rules, but the exclusive natureof the Rules gives the

Council and al1 concernedparties fair noticethat theyare

being called uponto takepart in a quasi-judicialproceeding.

Absent recourseto those procedures,the ICAO Council actsonly

under Articles 54 or 55. While such actionscould conceivably

be subject to some formof scrutinyby the ICAOAssembly,the
Chicago Conventiondoes not provide for their review by this

Court.

In light of the clear structureoE, and practiceunder. the

Chicago Convention,a Contracting Statethat believes that a

disagreement concerning the interpretationor applicationof

the Convention exists between it and another Contracting State

may pursue one of two mutually exclusive courseo sf'action.
First, shouldit wish to have thematter decided under the

dispute-resolution mechanismsof Article 84, it rnaysubmit an

applicationand mernorialas provided for under the Rules, and

subsequently participate in ICAOCouncil proceedingsunder

those Rules. In such a case, a lengthyand particularized[1091 PRELIMINARYOBJECTIONS 111
documentaryrecordwill be created, whileboth the ICAO Council

and the tespondentState willunderstandthat dispute

settlementunder Article 04 provisions havebeen invoked.

In the alternative, shoulda Contracting Statefor whatever

reason not wish to invoke Article 84, it may cal1 upon the

Council to act otherwise withrespect to matters relatingto

the Convention,a request which the Council would consider

under Articles 54 and 55. What a State may notdo, consistent

with the Convention,is choose one courseof action and later,
dissatisfiedwith the result,claim that it had pursued the

other course al1 along.

As the analysisbelow will establish, in its request for

ICAO discussionof the Iran Air incidentand its subsequent

actions at ICAO relatingto the incident,Iran chose not to

bring a dispute under Article 84. Instead, the Council, the

United States, and al1 participantsin those Council sessions

properlybelieved that the Councilwas actingunder Article 54
and 55, and was not decidingan Article 84 dispute. The

historicalrecordof those discussions -- including the

complete absenceof any referenceto, or applicationof,

Article 84 or the Rules for the Settlementof DiEEerences --

irrefutablysupportsthis conclusion. AERIAL INCIDENT

CHAPTER II

THE 17 MARCH 1989 RESOLUTION OF THE ICAO COUNCIL WAS NOT A
DECISION OF THE COUNCIL WITHIN THE MEANINC OF ARTICLE 84 OF THE
CHICAGO CONVENTION.

Section 1. Iran Did Not Invoke or Otherwise Rely on Article 84
of the Convention in Bringing the Incidentof 3 July 1988
Before the ICAO Counci1.

As described in Part 1, Iran brought the incident O€ 3 July

1988 to the attentionof the ICAO Councilfor the first time in

two 3 July 1988 telexesl. In neither of those communications,

nor in its 4 July 1988 telex which requested a meeting of the

Council, nor in its subsequentwritten and oral communications

to the Council did Iran seek to invoke. or even refer in any

way, directly or indirectly,to Article 84, the Rules, or the

Council's dispute settlernentEunctions thereunder.

Iran's 4 July communication is particularly revealinq,as

it informed Council President Kotaite of its view that "this

grave matter Ishouldl be tabled in the ICAO Council as a matter

of urgency with the view that an extraordinary sessionof the

ICAO Assernblybe urgently convenedto conduct a thorough

l~he Iranian telexes of July 3 and 4 appear as attachrnents
to Exhibit 10.IllIl PRELIMINARYOBJECTIONS

investigation of al1 aspects of the catastrophei." This

request could not have been for adjudication of a dispute under

Article 84, as the Assernblyhas no Eunction whatsoeverunder

that Article. Equally significant, the ICAO Council had no

reason at al1 to believe, based on the Iranian communication of

4 July, that Iran was seeking to invoke Article 84 procedures.

Nowhere in Iran's subsequent submissions to the Council is

there any suggestion that the Council was being called upon to

decide a dispute under Article 84. Sirnilarly,the exhaustive

records of the ICAO Council meetings of 13 and 14 July 1988, 5

and 7 December 1988, and 13, 15, and 17 March 1989 show beyond

reEutation that Iran consistently failed to characterize the114 AERIAL INCIDENT 111-21

Council'sdeliberationsas proceedingsunder Article 84l. It

is indeed unbelievablethat a State that wished to invoke the

long-establisheddispute settlementmachineryof Article 84 of

the Conventionwould remain utterlysilent on such a

fundamentalpoint throughoutthe relevantCouncil deliberations

'1n the voluminousminutes of the Councilsessionsof 13
and 14 July 1988, 5, 7, and 14 December 1988, and 13, 15, and
17 March 1989, Iran can point to no instancein which any pacty
called uponAto decide a disagreementunder that provision.g S.~E
Minutes, ICAO Council (extra. sess.,13 July 1988), ICAO DOC.
DRAFT C-Min. EXTRAORDINARY (1988)/1 (Exhibit13); Minutes, ICAO
Council (extra.sess., 14 July 1988), ICAO Doc. DRAFT C-Min.
EXTRAORDINARY (1988)/2 (Exhibit14); Minutes, ICAO Council
(125thsess., 5 Dec. 1988, closed), ICAO Doe.DRAFT C-Min.
125/12 (Exhibit15); Minutes, ICAO Council(125thsess., 7 Dec.
1988, closed), ICAO Dac. DRAFT C-Min. 125/13 (Exhibit16);
Minutes, ICAO Council (125th sess., 7 Dec. 1988,closed), ICAO
Doc. DRAFT C-Min.125/14 (Exhibit17); Minutes, ICAO Council
(125th sess.,14 Dec. 1988), ICAO Doe.DRAFT C-Min.125/18
(Exhibit18); Minutes, ICAO Council (126thsess., 13 Mar.
1989), ICAO Doc. DRAFT C-Min. 126/18 (Exhibit19); Minutes,
ICAO Council (126th sess., 15 Mar. 1989), ICAO Doc. DRAFT
C-Min. 126/19 (Exhibit 20); Minutes, ICAO Council (126thsess.,
17 Mar. 1989), ICAO Doc. DRAFT C-Min.126/20 (Exhibit 21). Nor
informationrefer to such a dispute nor examinewhichouncil's
particular provisions of the Chicago Convention might have been
violated by the United States.11131 PRELIMINARYOBJECTIONS 115

Section II. Throughoutthe ICAO Council Proceedings, Neithec
Iran nor the ICAO CouncilActed Under the Lonqstandingand
Decisionof Disputess UnderrArticleor84hof the Convention.

As described previously, the disputesettlementmachinery

established by the ICAOCouncil to enable it to exercise its

Eunctions under Article 84 is noteworthyfor its highly

specific,formal,written,and quasi-judicialcharacter.

Nowhere in its lengthyMernorialto this Coutt does Iran provide

evidence that theCouncil discussions even mentionedArticle 84

or the Rules, much less followedtbose procedures. Iran does
not because it cannot. The unquestionablf eact that neither

Iran nor theCouncil acted under well-settledrequirements

shows that the Council's consideration did not take place, nor

was it thought to have taken place, under Article 84 of the

Convention.

A written record.which surelvwould have existedhad an

UicLe 84 disriutebeen before the Cowil, does n~t e-. In

light ofthe requirementsin the Rules for written pleadings,

evidentiary subrnissions,Councildecisions,and written
communications by the ICAOSecretary General, had the Council

decided a disagreementunder Article 84, a significantwritten

recordwould have been created. Even the most cursory review

of the record oE the Council's discussions of the incidentof 3

July 1988 establishes beyond doubtthat no such documentary

record exists.116 AERIAL INCIDENT

Thus, as would otherwise havebeen thecase under the
express requirements of Article 2 of the Rules, Iran did not

file a written application to the Council. Nor did it file a

written mernorial.Also absent£rom the record is any Iranian

statementof law. a written description of the relief desired

on the specificpoints submitted. or a statementby Iran that

negotiationsto settle the disagreement had taken place between

the partiesbut were unsuccessfull. In the faceof this

irrefutable evidence,Iran'sassertionsin its Memorial that it

filed an applicationto the counci12and that theCouncil,

l~ndeed, the only piece of written documentation presented
by Iran that appears to refer at al1 to possibleviolationsof
the Chicago Convention was a "working paper" suhmitted by Iran,
which was titled "BACKGROUND INFORMATION." That paper did not
referto Article 84 of the Chicago Convention or th CAO Rules
or characterizeitself as an "applicationv,instead focussing
on purported violationsof internationallaw by the United
States that would have occurredprior to 3 July 1988. Working
Paper, ICAO Council (extra. sess., July 1988). ICAO Doc.
C-WP/8644 (Exhibit 12).

2~ranianMemorial, paragraph2.53[Il5] PRELlMlNARYOBJECTIONS

acting under Article 84, had "a full file beforeit" are
inexact and deliberatelymisleadingl.

Absent any act by Iran to commence Article 84 procedures,

it is not surprisingthat no such documentaryrecord exists

Contrary to whatwould havebeen the case had theCouncilbeen

acting pursuantto Article 84, the Secretary Generalwas not

called upon to Eulfillhis responsibilities under Article 3 of

the Rules to a) verify that anysuch applicationcompliedwith

the requirements of Article 2; b) immediately natifyal1
parties tothe Conventionand memhers of the Councilthat the

interpretationor application of the Convention wasin

question;and c) forward copies of the applicationand

l~ranianMemoriai,paragraph 2.54. The discussionin the
IranianMernorialis indicativeof Iran's selectiveand
misleadinghandlingof the Chicago Convention jurisdictional
argument. Indeed, the Councildecisionwas a "final"decision,
may have concludedthe Council's examinationrtiof a particularons
subject. So too, the Council membershad readmany paperswhen
they adapted the 17 March 1969 resolution. These were,
however, the type of working papers and technicalreportson
which the Council relies on a daily basis to conduct its daily
business. What the Governmentof Iran cannot establishis that
any of those documents that were before the Councilon 17 March
1989 were of the typethat would have existed had the Council
been deciding a formal quasi-judicialdispute under Article 84
of the Chicago Convention.118 AERIAL INCIDENT [Il61

supporting documentationto the respondent, with an invitation

to file a counter-rnemorial within a time lirnitspecified by the

Counci1.

Additional pleadings -- such as a United States

counter-memorial or preliminary objections,an Iranian reply

thereto, or a subsequent rejoinder by the United States -- are

also absent from the record. Other written submissions

envisioned under the ICAO Rules similarly do not exist. Thus,

written evidence of experts was not submitted pursuant to

Article 9 of the Rules, declarations by witnesses and experts

were not submitted pursuant to Article 10, and final written

arguments were never presented to the Council, as called for in

Article 12. This total absence of a written record eloquently

establishes that the ICAO Council was never called upon to

adjudicate an Article 84 dispute.
. .
T~F! daberations of the Council further indicate that the

matter was not brouaht as an Article 84 disputa. As noted in

Part 1 above, the Council addressedthe incident of 3 July 1988

in meetings held on 13 and 14 July 1988, 5, 7, and 14 December

1988, and 13, 15, and 17 March 1989. The lengthy documentary

record of those meetings is completely devoid of any reference

to Article 84, much less of any evidence that the Council

believed that it was charged with resolving a dispute under[il71 PRELtMINARYOBIECTIONS

that Article. Indeed,the documentaryrecordof those

sessions,as memorialized in the official ICAO Minutes,

establishesbeyond doubt that the Council addressed this matter

under its Article 54 and 55 authoritiesand not under Article

The minutesof the Councilmeeting of 13 July 1988 -- at

which the Council first addressedthe Iran Air incidentand

which began the process that culminatedin theCouncil
resolutionof 17 March 1989 -- indicate clearlythat the

Council was a acting under Article 84. In the wordsof the

Presidentof the Council,in introducing that agendi atem to

the Council:

"The irnperativetask for the Council nowis to collect
understandingof the chainof events whichled to thisal
tragedy. We have to explore everyelementof our
international regulations in the ICAO Standards,
RecommendedPractices, guidancematerialand procedures
which could prevent a repetitionof a similar tragedy,not
only in the area where this tragic incident occurred but
anywhereelse in the world. Andmost of all. we have to
appeal to al1 States not tocompromise the safety of civil
We haveito look ahead andstake everyntechnicalpreventive
action possiblein the fieldof safety ofair navigatio
make surethat similar tragedieswill never occur again r.1" AERIAL INCIDENT

No one, not even Iran, challengedor sought to challenge this
characterizationof what the Council intendedin its

considerationof the incidentof 3 July 1988. No one, not even

Iran, rose to state that the Councilhad before it a

disagreementgoverned by Article 84. Had Iran wished a

differentresult,the proper course would have been for Iran to

initiateproceedingsunder Article 84 in thernannerprescribed

by the Rules. Iran shouldnot now be relievedof the

consequencesof its failureto do so.

Far £rom asking the ICAO Councilto act under Article 84,
Iran specificallyrequestedthat the Councilact under Article

54(j) of theChicago Convention. The official ICAO minutes

Erom the Council's 7 December 1988 meeting record thf eollowing

statementof the Iranianobserver:

"Bearing in rnindthat this incident has a Iegal aspect, we
expect that this aspectof the rnatterwill be examined
togetherwith the ANC's [the ICAOAir Navigation
Commission's]considerationof the technical aspects of the
incident. We also wish to draw the attentionof the
Council to paragraph j) of Article 54 of the Chicago
Convention, which clearly statet shatthe Council should
report to Contracting Statesany infractionsof the
Conventionon International Civil Aviation, as well as any
faiiure to yarry out recommendations or determinationsof
the Council ."il191 PRELlMriuARYOBJECTIONS 121

To assist the ICAO Council'saction under Article 54(j) of the

Chicago Convention, Iran noted its "expect[ationl"that the
ICA0 Legal Bureauwould examine the expert's report "to

identifyinfringement[sic]of legal principleswhich have been

The President ofthe Council's responseto the above

Iranian intervention, moreover, further indicates that the

Council was acting under Article 54, and was not engagea in

quasi-judicialdeliberationsthat might have eventuallyled to

a decision of a disagreementunder Article 84:

"With referenceto theobservationof the Observer of
the Convention on International Civil Aviationtdnge. . .)the
President explained that, as in the past when the
subordinatebodies had considered questionsrelatingto the
high seas, territorial watersand sovereigntyin the
airspace, the ANCwould be Eree to consult the LegalBureau
if a legal opinion,or interpretation, was requiredon the
subject under consideration. Fe also dte w attentiont~
Article 54 k), reauirinathat the Councll ' 'ReDort to the
fraction of this Convention wherea
contractins Statehas failed to take an~tooyiateaction
within a reaonable time after notice of the imaction:'
that anv122 AERlAL INCIDENT [1201

&cision taken on this matter would be reported to the next
ardlnarv sessionof the Assemblv throuah tbe rnedlumof rhe
Annual Reaort of the Cornil to the ~ssemblvl.~

This statement is particularly significant, as the Council

President stated in clear terms that the final Council

resolution of the 3 July 1988 incident would be taken under

Article 54, rather than Article 84. That decision was rendered

at the next sessionof the Council, on 17 March 1989, in the

form of the Council resolution of which Iran now complains.

Other evidence from the Council meetings Eurther supports

this conclusion. For example, although Iran used the July 1988

Council meetings to excoriate the United States, the principal

focus of that session was to order a "fact-Einding

investigation ta determine al1 relevant facts and technical

aspects of the chain of events relating to the flight and

destruction of the [Iran Air] aircraft2." There are two

l~xhibit 17, p. 20. (Emphasis added.)

'~his is the precise mandate of the ICAO investigation
team, as memorialized in the ICAO Council decision of 14 July
1988. Exhibit 14. pp. 9-12.[12Il PRELIMINARY OBJECTIONS

possibleauthoritiesunder which the Councilcould have
commissionedsuch an investigation. Werethe Council to order

an investigationunder its ordinaryfunctions,it could do so

under Article 55(e) of theconvention1. In instancesin which

the CouncilwouLd order an investigationin an Article 84

proceeding,it would do so under Article 8 of the FIules2.

The recordof the discussionsErom 13 and 14 July indicates
clearly that the Councilacted pursuant to Chicago Convention

Article 55(e) and notArticle 0 of the Rules. On 13 and 14

July, Council Representatives £rom Canada and Spain stated

their belief that the Council should convene an investigation

'chiCagoConvention Article55(e) empowersthe Counci l to
"Iilnvestigate, at the requestof any ContractingState, any
situation which may appear to present avoidable obstaclesto
the developmentof air navigation . . . ."

'~rtiele 8 of the Rules provides that the Council,after
hearing the partiesto an Article 84 disagreement,may select
"any individual,body. bureau, commission,or other
organization"tu conduct an inquiryor render anexpert opinion.124 AERIAL INCIDENT [1221

under Article 55'. No participant at that meeting, including

the Observer of Iran, contested this characterization.

Just as the Council did not order the investigation under

its Article 84 authority, the record of its proceedings is

totally devoid of any other evidence that any of its decisions

or actions were taken pursuant to the distinctive and exclusive
procedures of the Rules. Thus, the Counçil never discussed

whether to appoint a Cornmitteeof £ive Council members to

conduct a prelirninaryexamination of the matter2, nor were the

distinctive proceduresunder Articles 7 through 20 of the Rules

ever discussed or followed.

The complete absence of any actions under the Rules by

Iran, the United States, or the Council indicates,as a matter

of substance and evidence, that no one considered the Council

'~t the 13 July 1988 Council meeting, the representative
Erom Canada stated explicitly that "[iln the view of rny
government, the first requirement is that, pursuant to Article
55(e) of the Chicago Convention, there shouldbe a thorough,
impartial and expeditious Eact finding investigation by ICA0
into al1 relevant circumstances surroundingthe destruction of
the Iran Air Airbus. . . ." Exhibit 13, p. 19. On 14 July,
the Spanish Representativeexpressed his belief that the
Council should order a fact-finding investigation under Article
55. Exhibit 14, pp. 7-8.

2~ules, pe. &., Exhibit 6, Art. 6(2}.[123] PRELIMINARY OBJECTIONS

to be acting under Article 84. Consequently, the Council

resolution of 17 March 1989 cannot be a "decision" within the

rneaningof Article 84, and no appeal from that resolution rnay

be taken to the Court under that Article,

The Ilnited-XLaksJad. and exrca-a.mabu

rs concernina the Incldent of 3

Julv 1988. which would have been orecluded under Article 84.

As noted above, Article 84 of the Convention unequivocally

precludes a State which is a party to a dispute submitted to

the Council under that Article from voting inthe Council's

consideration of such dispute. This prohibitionis carried

forward into Article 15(5) of the Rules in exactly the same

language as is employed in Article 84.

Had the Council been acting under Article 84, therefore,

the United States would have been deprived of the opportunity

to exercise its cight to vote in theCouncil's is consideration

of the 3 July 1988 incident. It is significant, therefoce.

that the United States did exetcise its right to vote in the

Council's considerationof that incident, not only by joining

in the adoption by consensus of the Council resolutionof 17

March 1989 and in the ICA0 decisions taken on 14 July and 7

December 1988, but a150 in voting in opposition to an amendment

to the 17 March resolution offered by the member of the Council126 AERIALINCIDENT

£rom ~zeehoslovakia~.At no tirnebefore, during, or after

those votes was any objection madeto the right of the United

States to cast its vote; nor did any discussion take place in

the Council coneerningthe question. Thisfact is particularly

significantin that Iran participated throughout the Council's

considerationof this matter, yet never raised the issueof

U.S. voting. It is also significantto bear in mind that the
Directorof the ICAO Legal Bureau, theforemostexpert in ICAO

procedures,attended thatsession2and yet neithet raised

directlynor apparently brought to the attentionof the

Presidentof the Council what would have been a crucial and

obvious proceduralpoint hadthe proceeding been bought under

Article 84. In light ofthe clear prohibitionin Article 84 on

l~he fact thatthe United States voted can be established
from the Council Minutesof 17 Mareh 1989. Exhibit 21. As
noted inthe record of attendanceof that meeting, thirty-one
Council membersattendedthe meeting. The record of the vote
-- six votes in favot,nineteenopposed, and six abstentions --
clearly establishesthat al1 Council membersin attendance,
includingthe U.S. Representative, votedon the proposed
amendment. W.. p. 10.

'~he pcesenceof Dr. Michael Milde, the Directorof the
Minutes of thee17,Marche1989tCouncil meeting. Exhibitin 21, p. 1.il251 PRELIMINARY OBJECTIONS 127

the voting of parties to a disputebrought before the Council

undec that Article, Iran'ssilence,and the silence of al1

other participants, provide additionalconfirmationthat the
Council didnot decide a disputeunder Article 84.

The resolutionadoated bv the Councilon 17 March 1989 did

not. on its face. decide or otherwi-ess a dispute undec

Article 84 of the Chicaao Convention.In those rare instances

in which the Council decides a disagreement between Contracting

States, the Rules requireit to do so in a distinctive manner.

IndeeU, the Rules require that an Article 84 decision be

presented in a form not very differentErom judgmentsof this
Court under Article 95 of the Rules of Court. Specifically,

~rticle 15 of the Rules provides, ~JLEL U, that:

"(2) The decisionof the Council shallbe inwriting
and shall contain:

(i) the date on which it is delivered;

(ii) a list of the Members of the Councilpartici-
pating;

(iii) the names of the partiesand of their agents;

(iv) a summaryof the proceedings;
(v) the conclusionsof the Council together with
its reasons for reaching them;

(vi) its decision,if any, in regard tocosts; ' AERIALINCIDENT [l261

(vii) a statement of the voting in Council showing
whether the conclusions were unanimous or by a majority
vote, and if hy a majority, giving the number of Mem-

bers of the Council who voted in favour of the conclu-
sions and the number of those who voted againstor
abstained.

(3) Any Member of the Council who voted against the
majority opinion may have its views recorded in the form of
a dissenting opinion which shallbe attached to the decision
of the Council.

(4) The decision of the Council shall be rendered at a
meeting of the Council called for that purpose which shall
be held as soon as practicable after the close of the pro-
ceedings."

The text of the Council resolutionof 17 March 1989

manifestly does not Eollow these distinctive and well known

requirements for Council decisions under Article 84:

"THE COUNCIL OF THE INTERNATIONAL CIVIL AVIATIONORGANIZATION

Wllinq its decisions of 14 July and 7 December 1988
concerning the shootingdown, on 3 July 1908. of Iran
Air Airbus 300 on flight IR655 by a warship of the
United States;

Havina considered the report of the fact-finding
investigation institutedby the Secretary General
pursuant to the decision of the Council of 14 July 1988
and the subsequent studyby the Air Navigation
Commission of the safety recommendationspresented in
that report;

Exar~sm appreciation for the full CO-operation extended
to the fact-finding mission by the authorities of al1
States concerned;

Becalk that the 25th Session (Extraordinary) of the
Assembly in 1984 unanimously recognized the duty of
States to refrain from the use of weapons against civil
aircraft in flight; PRELIMINARYOBJECTIONS 129

Reaffirminqits policy to condernnthe use of weapons against
provisionsof the Charter of the United Nations;

Deewlv dealores the tragic incident which occurredas a
consequenceof events and errors in identification of
the aircraftwhich resulted in theaccidental
destructionof an Iran Air airlinerand the loss of 290
lives;

ExDressesagain its profoundsympathyand condolencesto the
Governmentof the IslamicRepublicof Iran and to the
bereaved families;

A~~ealsaaain urgently to al1 ContractingStates whichhave
not yet done so to ratify,as soon as possible,the
on International Civil Aviation; into theConvention

Notes the report of the fact-findinginvestigation
instituted by the Secretary Generaland endorses the
conclusions of theAir Navigation Commission on the
safety recommendations contained therein;

mes States to take al1 necessary measuresto safeguard the
safety of air navigation, particularly by assuring
effective CO-ordination of civil and military
activitiesand the properidentificationof civil
aircraft,"

Tt is clear Erom that resolutionthat the Councilhad been

acting throughout under its general authorityderiving£rom
Articles 54 and 55 of the Convention,and was not acting as a

quasi-judicial body sitting to decide a disagreementor dispute

between Iranand the United Statesrelatingto the

interpretationor applicationof the Convention. Indeed,the

resolutiondoes not even refer to a dispute betweentwo States,

much less purport to decide such a dispute. Nor does it

contain a list of members of the Council who participated, the

names of the parties and their agents,a summary of the130 AERIAL INCIDENT [l28l

proceedings,the conclusionsof the Council withits reasons

for reachingthem, or a statementof thevoting. In light of

the repeatedIraniancriticismof the Council'srefusal to

condemn the United States, moreover,it is significantthat the

17 March resolution,in its Eifth paragraph,noted thatsuch

condemnationswere a questionof "policy".

The Council resolution provides an excellent summaryof
deliberationsof the Councilthroughoutits discussionof the

Iran Air incident. Throughout, the Councilresponsiblyand

dispassionately carried out its Article 54 and 55

responsibilitiesto assess theEacts which led to the tragic

downingof the IranAir airlinerand took necessary stepsto

ensure that such tragedies wouldnot recur. When seen in this

light, the Council's 17 March resolution abLy completed the
task presentedto it eight months earlier by the Presidentof

the Councilto reach a complete technicalunderstandingof the

chain of events whichled to the tragedy,to explore possible

changes to ICA0 Standards and RecommendedPractices,to appeal

to States not to compromisethe safety of civil air navigation,

and to take other necessary technical steps to make sure that

similar disasters wouldnot recur.[1291 PRELIMINARYOBJECTIONS 131
Iran's attempt to recharacterizethose proceedingsand that

resolution as a legal proceedingunder Article 84 and then to

criticizethe Council for not acting in a sufficientlyjudicial

manner mustbe rejected.

Section III. The Conclusion That This Was Not anArticle 84
Dispute HasBeen Confirmed by ICAO.

Less than three months after the ICAO Council action was
completedon this matter, a senior officer in the ICAO

Secretariatconfirmed,in an officia1communicationto the

Office of the Registrarof the Court,that the matter was not

subrnittedto ICAOunder Article 84, nor treated as such

Pursuantto a 24 May 1989 request to ICAO for information,

ICAO'sLegal BureauDirector, Dr. Miehael Milde, informedthe

Court's Registrar's Officeof that fact:
"You will note that the proceedingsin the Council[on
the 3 July 1988 incident]did not follow these Rules for
the Settlewnt a£ Oifferencesbecause the matter was not
submitted to the Councilunder the terms of Chapter XVIII
of theConventionon International Civil Aviation (Articles
84 to 88) but was consideredunder the terms of Article
54(n) .

The matter before the Councilwas not framed as a
difference or disagreement on the interpretationor
applicationof the Convention on International Civil AERIAL INCIDENT i1301

Aviation and its annexes; similarly,the interpretation and
applicationof the MontrealConventionof 1971 was not the
subject of the deliberationsby the Councilof ICAO~:

This statementis highly relevant and probative in a number

of respects. First, coming fromone of the foremostexperts in

the fieldof aviation law, the Chicago Convention,and ICAO,

the ICAO Legal Bureau Director's opinioo nn the subject is

entitled to great weight2.

Equally important,his statement,coming shortly after the

Council's completion of its work on the 3 July 1988 incident,

is powerfulevidenceof the stateof mind ofthe participants

in those deliberations. As reflectedin the Minutes of those

sessions3, Dr. Milde, in his capacityas Legal Bureau

l~his letter from ICAO Legal DirectorMichael Milde to the
Court's Deputy RegistrarBernard Noble appears at Exhibit 24.

2~r. Milde, LL.M., Ph.D., receivedhis legal training in
Czechoslovakia, the Netherlandsa ,nd Canada. He is the
Directorof the ICAO Legal Bureauand professorof
international aviation law at McGill Universityin Montreal,
Canada. Since 1 June 1989, Dr. Milde.hasheld thepositionas
Director of McGill University'sInstituteof Air and Space
Law. It should also be noted thatthe IranianMemorialcites
Dr. Milde as an authorityon internationalair law. Iranian
Memorial,para. 3.16, n. 2; para. 2.41, n. 1.

3- Exhibit 13, p. 1; Exhibit 14, p. 1; Exhibit 15, P. 1;
Exhibit 16, p. 1; Exhibit 17, p. 1; Exhibit 19, P. 1; Exhibit
20, p. 1; and Exhibit 21. p. 1.L131] PRELIMINARYOBJECTIONS 133

Director, was a participant in Council sessions in which the

matter was discussed. Quite clearly, the Organization believed

that it was not deciding a dispute under Article 84, but rather

was addressing the matter in its policy role under Article

54(n). In addition to the other evidence submitted above, the

statement of the ICAOLegal Bureau Director removes any

possible doubt that the issue before the ICAO Council could

have satisfied the requirements of Article 84. AERIAL INCIDENT

CHAPTER II1

IRAN'SATTEMPT TO EVADE THE CLEAR PROVISIONS OF THE CHICAGO
CONVENTION WOULD BE HIGHLY PREJUDICIAL TO THE PROPER FUNCTIONINC
OF ICAO.

As the discussionabove indicates, Iran could always have

attemptedto initiateproceedingsin the ICAO Councilon the
basis of Article 84 of the Chicago Conventionand the Rules for

the Settlernentof Differences. For reasonsof its own, Iran

chose not to do so. Now, dissatisfied with the resolution

reachedby the Council, Iran attemptsto challengethat

decision,a decisionembodyingboth policy and technical

elements and reached afterprolonged examination both by the

ICA0 investigationand by the technical examination of the ICAO

Air Navigation Commission. In essence, Iranis asking the
Court to ignore the constitutional basis on which theICAO

Council acted, namely Article 54 of the Chicago Convention, and

by some sleight of hand transmutethose proceedings into

something entirely different, namely proceedings under Article

84 leading toa decisionon a disagreement between the partiesLI331 PRELIMINARYOBJECTIONS

relating to the interpretationor the applicationof the
Chicago Convention. In so doing,Iran is asking the Courtto

embark upon a course of action that would behighly prejudicial

to the United Statesand, indeed,to al1 parties to the Chicago

Convention,to the duly constituted organs of ICAO,

particularly the ICAO Council, and to the proper functionino gf

the whole of the International Civil AviatioO nrganization.

Nations Obliges the Courteto Reject Iran'sClairns. United

The acts of ICAO, a specializedageneyof the United

Nations' system,are entitledto respectand deferenceon the

part ofother organsand elements of the United Nations system,

includingthis Court. Iran,in basingits jurisdictional

allcgationson Article 84 of theChicago Convention,is

necessarilyasking that the Court determinethat the Council

resolutionof 17 March 1989constitutesa "decision"of the
Council taken pursuantto Article 84 of the Convention. As the

United States has shown,Iran, the UnitedStates, the Council,

and the ICAO Secretariat didnot believe thernselves to be

acting pursuantto Article 84 in connection with consideration

of the 3 July 1988 incidentat any time up to or during the136 AERIAL lNCIDENT [1341

adoption of the 17 March 1989 resolution. Iran is asking the

Court to find otherwise, notrithstanding the overwhelming

uncontroverted record to the contrary.
What Iran seeks is a distortion of the carefully structured

dispute settlement regirneof the Chicago Convention. Iran

seeks to have the Court impose upon the ICA0 Council an

interpretationof the Council's actions in respect of the 3

July 1988 incident that is not only unsupported by Article 84

of the Convention and its implementing Rules for the Settlement

of Differences, but is also entirely at variance with Iran's

own actions in bringing the matter to the attention of the

Council, and the Couneil's intentionsand purposes in its

consideration of the matter. In effect, the interpretation

Iran is putting Eorward requires such a broad reading of

Article 84 that it would severely disrupt the established

manner in which the Council regularly deals with disagreements

and disputes relating to the interpretationor the application

of the Convention. These assertions open the way for any party

to the Convention -- not rnerelya party to a particular

disagreement or dispute -- that considers itself dissatisfied11351 PRELIMINARYOBJECTIONS
with any decision of the ICAO Council t0 invoke Article 84

retroactivelyand initiate recourse to this Court. This would

turn the whole systemof the Chicago Conventionupside down.

Used in the Manner Suggested byolIran. the Court Should Not Be

In its Memorial, Iran seeks to rely on this Court's

.,.
decision in Aoaeal Relatina to the Jutisdiction of the ICA0

(heceinafter,the "B~~eal" case)' to support the
argument that this Court should take an expansive view of its

appeal authority and, accordingly, Find jurisdictionover the

17 March 1989 ICAO Council resolution. Such assertions are
misplaced and misleading, as nothing in the Court's judgrnent in

the A~~eal case suggeststhat Iran's distorted view of Article

84 and the Court's jurisdictionthereunder has merit.
In the case, the issue before the Court was the

limited one of whether an interlocutory~decisionof the

Council, acting under Article 84, constituted a 'decision" of

the Council within the meaning of Article 84 so as to confer138 AERIAL INCIDENT

jurisdictionon this Court by way of "appeal". In that

proceeding, however,there was no doubt in thatcase that the

Court had jurisdictionin relationto the underlyingdispute

which had been brought for decisionbefore the ICAO Council,
which had indeed been properly seised by India as requiredby

Article 84 of the Conventionand Article 2 of the Rules for the

Settlementof ~ifferencesl. This was common groundbetween the

parties in that case and was not ehallengedeither in the ICAO

Council or in this Court. It follows that a principal issue in

the present proceedings -- namelywhether the Court has the

jurisdictionto entertaina case presented as an appealunder

Article 84 of the Chicago Convention when the impugneddecision

of the Council itself was not taken in applicationof Article
84 -- simply did not arise in Chat case.

There is nothing in the Court's decision that would

indicatethat it believed that its supervisoryfunctianover

the quasi-judicialdeterminationsof the Councilunder Article

-, ReDertorv - Guide, M. a,, Exhibit 69, Art.
84, pp. 3-4; and G. Fitzgerald,"The Judgmentof the
International Courtof Justice in theAppeal ~elatingto the
Jurisdictionof the ICA0 Council" 12 k of
1 a , p. 153, at pp. 159-60 i1974:a?e:hiti:e;;:o<ril371 PRELIMINARY OBJECTIONS

84 wouLJ in any uay exttnd to Incltide the reviaw cf Ccuncil

technical and policy dat="inationa under othrr arciclsa of thé

Ctiicagti Conventioii. I'hera i3 iiottiiny in rhe Cnnvei:tiiin tiiat

could posaibly support the exerciss by the Court ci

"sitpervjsory" furictions avec iitat',era aot conside~er! under

hrticis a4.

The Couct's judyniant in the Aooaal case daes. huwever, lisve

certaiti relavance insofar a3 ttie iiaturs of the Coure s ~~iiic:ior.s

and rcsponsi~ilities undsr Arciclr 84 are ccnc~rned. As to chi5

rnattzr the Court noted that:

*The case is prçaanted to the Court in the quise qf an
~rdinary di3pute botveen States (and such a dispuce
uiide~lies it). Yet in tiie proceedinga [ieCore thr'Csu.'t. r=
i? the act of a third eritity -- the Ccuncil. of ICA0 --
which une of the Psrtias is ispugninq and the ottiaz
OeEenJltiq. ln that aspect of the matter. the apps~1 53 tlir
Cgurt cgnternpiatod by the Chicago Convantiun and the
Tzarisii: Agta-.inent must be regarded as ali elrmeric af the
gsneral riglrne establirhedin respect of ICAO'."

Iiibringinq the instant proceediiiq, Iran is askinq ttie

C~lir: :a dapart frotn i ts spacia 1 :esporisibiliries ï:tli respect

59 !lie "goce Eünccioniilg.' cit ICA0 by findino juriseic=ioti -5140 AERIAL INCIDENT il381

exist under Article 84 in circumstancesin which absolutely no

support for such jurisdiction may be found inthe text of
Article 84 or its implementingRules, or in therecordof the

Council proceedings thatled ultimatelyto the resolutionof 17

Marçh 1989. Iran's request must be rejected.

Section III. TheDecisionRequestedof this Courtby Iran
Would Frustrate theDispute-SettlementRegime Establishedin
the Chicago Conventionand by ICAO and Would Threaten the
Institutional Integrity of ICAO.

The Governmentof Iran, for reasonsknown onlyto itself,
did not invoke the established and exclusive procedurf esr

Council resolution of disputesunder Convention Article 84.

Accordinglyand as a matter of course, the Councilproceededto

deal with the incidentof 13 July 1988 pursuantto Article 54,

as itroutinelydoes with.respectto aviation mattersin which

Article 84 has notbeen expressly, and properlyi ,nvoked. The

Applicationfiled by Iran to institutethe instant proceedings,

however, proceedson an entirelydifferentbasis, attemptingas

it does to rewrite what occurredin the ICAO Council. To add

to the deliberate confusion Iran is attemptingto create, in
its Memorial itcriticizesthe Council for doing preciselywhatP391 PRELIMINARY OBJECTIONS 141

it is supposed to do, namely, taking into consideration factors

of aviation policy and politicalfactors in reachingthe
decision that it adoptedon 17 March 198g1.

Iran asks this Court to circumvent thelongstandingand

comprehensive procedures adoptedby ICAO, and thereby frustrate

and in effect nullify the regirne carefullyadopted by the

Organizationand accepted by its Contracting States for more

than thirty years. Such a decisioncould threatenthe'

institutional integrity of ICAO. As a Member of this Court has

stated:

". . .the Contracting States have the right to expect that
the Council wiLl EaithfullyEollow these rules, performing
as it does, in such situations,quasi-judicialEunctions,
for they are an integralpart of itç jurisdiction. Such
rules constituteone of the guaranteesof the proper

--

l~ran'sstaternents in paragraphs2.41, 2.57, and 2.59 of
its Memorial are typicalin this respect. One particular
grievanceraised by Iran in itsMemorial is the Council's
differingtreatment: of the Iran Air Incidentfrom the 1983 KAL
007 shootdownand the 1973 downing ofa Libyan civilian
airliner &y Israel. IranianMernorial, paras. 2.36-2.41.
17 Marcht1989aCouncildecision is similar in nature to the 4
June 1973 Council âecision regardingthe shootàownof Libyan
aircraftand the 5Mareh 1984 resolution regardingthe downing
of KoreanAir Lines Flight 007. This cornparison,in one
respect,is apt, as ICAO Council actionsin both instancesdid
not involve a resolutionof disagreementsunder Article 84. As
establishedabove, the Councilin both aforernentionep drior
instancesacted pursuantto Articles 54 and 55. AERIAL INCIDENT

decision-making ofany collective body of this character
and they set a frarneworkfor its regular f nctioning: as
such, they are enacted to be cornpliedwith Y."

Every year, the Council rnakes a very large nurnberof

"decisions"in a wide array of matters. Many of these

decisions and resolutions necessarily,and to a greater or

lesser extent, implicateissues of law. As noted above,

Article 54(n) gives the Council cornpetenceto "[clonsider any

matter relating to the Convention whichany Contracting State

refers to it." On its own initiative, the Councilreviews

other rnattersrelated to the provisionsof the Convention.

Under the Convention, these decisions are final and not subject

to appeal to any judicial body.

Allowing Iran to evade the long-establishedprocedures for

bringing Article 84 disputes before the Council could open up

for review virtually al1 actions of the Council thatmight be

said to implicate or involve one or more provisions of the

Convention. Subjecting such decisions to lengthy judicial

review could delay crucial aviation safety-relatedactions of

the Council and cripple the operationof KCAO. The United

1~ c J ReDorts 1972, p. 46, at pp. 74-75 (Declarationof
Judge Lachs).il411 PRELIMINARY OBJECTIONS

States respectfully submits that this resultwould not be

consistentwith theterms or intentof theChicago Convention,

or the longstandingpracticeof States under that Convention.

Iran's actions in this regard.rnoreover, would violate the

clear language and intentof Article 84, under which this Court

acts as a court of appeals rather than as a court of Eirst
instance. As an appellatecourt, this Court Eunctionsas a

judicial body of the highestorder, determining questions of

law based on a full, and fully-artieulated,legal record

developed by the contendingparties. In such circumstances,

the Court's proper functioningdepends greatly onits ability

to review and assess the legal positions of the parties,based

on a coherent legal record deriving £rom the proceedingsof the
forum frornwhich theappeal has been taken. As established

above, no such record exists in thia case, for the simple

reason that none of the concernedparties -- not the United

States, the Council, or, indeed, eveInran -- conceivedthat

the prior Council discussionsand resolutionshad a judicial

character,from which an appeal ta this Courtwould be

available. None so conceived,and none so acted.
In short, the Councildid not deal with the matter before

it in a quasi-judicialproceeding. The legal questions that

Iran seeks to have this Courtconfrontwere neither confronted,144 AERIALINCIDENT

nor decided,by the Council under Article 84 of the

Convention. Rather than function in an appellate capacity,

this Court, in effect,has been asked by Iran to act as the

court of first instance. Thatis manifestlynot the Court's

role under Article 84, and thatArticle unambiguously does not

confer jurisdictionon the Court Eor that purpose. Iran's

clairnthat the Court hasjurisdictionunder Article 84 of the
Chicago Conventionis completely unfounded and should be

rejected. PART IV

THE COURT DOES NOT HAVE JURISDICTION UNDER ARTICLE 14
OF THE 1971 MONTREAL CONVENTION FOR THE SUPPRESSION
DF UNLAWFUL ACTÇ AGAINST THE SAFETY OF CIVIL AVIATION PRELlMlNARY OBJECTIONS 147

Iran asserts that Article 14 of the MontrealConvention

confers jurisdictionon the Court in these proceedingsl

Article 14 of the Conventiongives the Court jurisdictionover

disputes concerningthe interpretationand applicationof the

Convention which cannot be settled throughnegotiationor

arbitration:

"Any dispute between two or more Contractin States
concerning the interpretatioo nr applicationof this
Convention which cannot be settled through negotiation,
atbitcation. If within six rnonthsErom thesubdatetof the
request for arbitrationthe Parties are unable to agreeon
the organizationof the arbitration,any one of those
Partiesmay refer the disputeto the InternationalCourt
of Justice by request in conformity with theStatute of
the Court."

In its Application,Iran asserts that "by refusingto

accept liabilityfor the actions oE its agents in destruction

of IranAir Flight 655, and by failing to pay compensationfor

the aircraft.or to work out with the Islamic Republica proper

mechanisrnfor determinationand payment of damages due to the
bereavedfamilies,the United Stateshas violated Articles 1, 3

and lO(1) of the Montreal ~onvention'." In itsMernorial,

l~ranianMernorial, para. 2.63. The MontrealConvention
appearsat Exhibit 7.

2~ranianApplication, p. 7.148 AERIALINCIDENT [1461

Iran argues that the United States violated those provisions of

the Convention by virtue oE its "conduct in destroying Iran Air

Flight 655 and in failing to take al1 practical measures to

prevent such an offense and to make it punishable by severe

penalties1." More specifically, Iran argues that both the

United States and the CornrnandinO gfficer of the US5 Vincennes

violated Article 1 of the convention2 and that the United

States violated Article 3 and 10(1)~.

Iran cannot reiy upon the Montreal Convention as a basis

for jurisdiction because Iran has failed to establish that its
dispute with the United States regarding thisrnattercould not

be settled through negotiation. In Eact, prior to filing this

proceeding, Iran rebuffed al1 attempts by the United States to

discuss the pavent of compensation.

Likewise, Iran wholly disregarded the additional and

independent requirernent of Article 14 that it seek arbitration

of the dispute for a period of six months prior to reference to

l~ranian Mernorial,para. 2.61.

2~ranian Mernorial,paras. 3.58, 3.59, and 4.57.

3~ranian Mernorial,paras. 3.60, 3.61, and 4.73.the Court. In fact,during this periodIran never requestedor
tried to organize the arbitrationof the dispute and

disregardedattempts by the United States to discuss

compensation, notwithstanding the extensive negotiatia ons

arbitrationson claims issues which the two governmentsuere

conductingon a daily basis at The Hague.

Moreover, the Montreal Convention cannotprovide a basis

for jurisdictionin these proceedingsbecause the Convention

has noconnectionto the downing of Iran Air Flight 655. The
Convention addressescriminalacts by individualsagainst the

safety of civil aircraft. It was never intended to address the

responsibilityof States for any actionsthey may take against

such aircraEt,particularlyactions taken by arrnedforces

engaged in hostile action. The actionsat issue hereare

governed by the lawsof armed eonflict--anentirelyseparate

and independentbranch of law for which ICA0 has no

responsibilityand which the partiesto the MontrealConvention
and other conventions dealing with civi aircraft did not

purport to address.

The Court can determine these thresholdissues onthe

basis of preliminary objections and should not proceed tothe

merits of Iran'sclairnsuntil the jurisdictionof theCourt is

determined.150 AERIAL INCIDENT 11481

CHAPTER I

IRAN HAS FAILED TO SATISFY THE REQUfREMENTTHAT IT SEEK TO
NEGOTIATE OR TO ARBITRATE BEFORE INSTITUTING PROCEEDINGSIN
THIS COURT.

In itsApplication and Mernorial,Iran brushes aside the

very specific prerequisitesto the Court's jurisdiction that

are written into Article 14 of the Montreal Convention. Yet

the ordinary languageof Article 14 without questioncalls upon

a complaining Stateto seek negotiationand then arbitration

prior to submission of a dispute to this Court. Article 14(1)

"Any dispute between two or more Contracting States
concerning the interpretation or applicationof this
Convention which cannot be settled through negotiation,
shall, at the request of one of them, be submitted to
arbitration. If within six monthsfrom the date of the
request for arbitration the Parties are unable to agree on
the organization of the arbitration,any one of those
Parties rnayrefer the disputeto the International Court
the Court."by request in conformity with the Statute of

The comments that were made regardingArticle 14 during
the conferenceat which the Montreal Convention was drafted

dernonstratethat the provision was understood to require anLI491 PRELIMlNARY OBJECTIONS

effort by the complaining Stateto seek agreement on

arbitration before referringthe dispute to the court1.

Article 14(1}, therefore, requiresan eEfort by the
complaining Stateto negotiate a settlementof the dispute

concerning the interpretatioo nr applicationof the

Convention. Tf negotiationsfail to settle the dispute,the

State must seek to arbitrate the dispute. Onlif that fails

within a period of six months may recourse be had to the

Court. The requirementsfirst to negotiate and then to
organize an arbitration arenot mere formalities. They are

clear prerequisitesto any right of resort to the Court. Iran

clearly Eailed in any way to meet these essential

prerequisites. They cannot be avoidedor dismissedas useless

based on the relationsbetween Iran and the United States.

Indeed, during this same period, Iranand the United States

'0nly one delegate at the MontrealConferencespoke
directlyto the requirementsof this Article. "Article 14
provided for thereferenceof disputesto the International
Court of,Justice iD the caseof ~artiesunable to aaree on
arbltratioa". Exhibit 43, p. 134 (emphasisadded). No other
delegate took issuewith thisstatement. Indeed, onlone
other deleqate commentedon the substanceof Article 14,and
then only indirectlyby açsociatinghimselfwith theprevious
remarks. m.152 AERIALlNctDENT i1501

were engagedalmost daily in The Hague in intenseand largely

successfulefforts to resolvediplomaticallyand by arbitration

importantand politically sensitive claims

With regardto these prerequisites, thelanguageof

Article 14sets an even higher standardof conduct by the

cornplaining Party than exists inmany other compromissory
clauses of this type. Forinstance,it sets a higher standard

than the compromissory clauses that appeared recentlybefore

this Court in bothElettronica Sicula S.D.A. -1 and
. . ... .
ary and PararnilltarvActrvitiesin and anam

~icaraoua~. In the Nicaraauacase, Article XXIV(2) of the 1956

Treaty of Friendship,Commerce and Navigation stated:

or applicationof the presentTreaty, not the satisfactorily
adjusted hy diplomacy,shall be submittedto the
International Courtof Justice, unless th Parties agree
to settlernent by some other pacific means?."

3~.~C~. ReDOrts 1984, at p. 452 (Separate Opinionof Judge
Ruda) .[1511 PRELIMINARYOBJECTIONS
As Judge Ruda stated in commentingon this provision:

". . . it is essentialthat diplomaticnegotiations should
have taken place prior to coming before the Court,
because, Eirst, that is what is set out in clear terms in
Article XXIVof the Treatyand second, because it is
impossibleto know the existenceand scope of the dispute
without one party subrnitting a claim against the other,
stating the facts and specifyingthe provisions of the
Treaty alleged to have been violated. It is the essence
and therefore the indissoluble attribute of the concept
of dispute that negotiationsbetween the interesteS dtates
should precede the institutionof proceedingsbefore the
Cfixes th? points of factsand law over which thepartiesomacy
disagree ."

The requirementto negotiate. therefore, cannob te and has

never been viewed by the Court as a mere formality.

Article 14 of the MontrealConventionnot only eontainsa

requirementto negotiate,it also expresslycalls upon the

complaining partyto seek arbitration within a specifiedperiod
of tirnebefore resortingto resolutionof the dispute by this

Court. The clear distinctiob netween the requirements of a

cornpromissorc ylause such as Article 14 of the Montreal

Conventionand that of the Treatyof Friendship, Commerceand

lu, p. 453. As the Court said in Mavrommn-;is Palestine
Concessions. 2'- NoSeries A. No. 2,
at p. 15, "[Bleforea disputecan be made the subjectof an
action at law, its subject matter should have been clearly
defined by means of diplomaticnegotiations."154 AERIAL INCIDENT [152]

Navigationin was recognized by Judge Singh:

"In the aforesaid Treaty [Conventio on the Prevention and
Punishment of Crimes Against InternationallyProtected
thesjurisdictionalclause made negotiationsouan essentialt
conditionbefore proceedingto arbitration; and a lapse of
six months £rom the date of the requestfor arbitration a
conditionprecedentto referringthe disputeto the
International Courtof us tic el."

Not to give effectto the express conditions of Article 14

would underminethe purpose of such conditions, whichis to

avoid escalatinga dispute between States to thisforum before
the attempt has beenmade to resolve it through a dialogue

between the Statesor through arbitersof their choosing. Were

this Court to brush aside such explicit language, the Court

would ultirnatelyserve to discourage Statesfrom erafting

compromissory clausesin which they believe they are fostering
a bilateral, low-profile resolutionof disputes

Section 1. Iran Had No Justificationfor ItsFailure to Seek
Negotiationsor Arbitration Priorto Resort to thisCourt.

The principal arguments that Iranmakes for failing to
satisfy the requirementin Article 14 to seek negotiationsor

request arbitrationare that there were no diplornaticchannels PRELlMlNARYOBJECTIONS

of communication for pursuing negotiations and that, in any

event, a request for arbitrationwould have been fruitless. In

fact, there were a number of diplornaticchannels for

communicating with the United States and the United States very

early indicated its willingness to provide compensation to the

victirnsof this accident and to discuss the rnatterwith Iran.

In its Application, Iran rnakes the following assertionin

a footnote:

"The IslarnicRepublic of Iran submits that under the
circurnstances and in particular the United States total
refusal of al1 voluntary rnethodsof pacific settlement of
the present dispute, the arbitration referred to in
Article 14(1) of the Montreal Conven ifn cannot be
eonsidered a viable course of action ."

In its Memorial, Iran argues that theextent of public

debate over the legalityof the United States actions in ICA0

and the United Nations Security Council, coupled withthe fact

that no dipIornaticrelations exist between the two countries,

"demonstrates that it would be fruitless to hope that any
furthec 'negotiation' could be expected to settle the

dispute2." Iran also criticizes the United States for failing

l~ranian Application, p. 6.

'1ranian Memorial, para. 2.65.156 AER~ALINCIDENT il541

to give any indicationthat it preferreda separatearbitration

over Iran'sclaims under the Conventionto proceedingsbefore

the court1.

Iran's assertions notwithstandingd ,espite the absenceof

forma1 diplornaticrelations,a number of diplomatic channels

existed thatprovided Iran with the opportunity to request

negotiationsor arbitrationof its claims. On its own
volition, Iransirnplydeterrnined to proceedwith the filing of

these proceedings withoutany effort to cornply with the

requirementsof Article 14. Indeed, Iran ignored and rebuffed

the persistent efforts of the United Statesto address with

Iran thesubject of compensationto the victirnsof this

accident.

From the time of the incidentof 3 July 1988 until Iran's

Application was filed in this case, the Government of Iran
never requestedto meet with U.S. officiaisto negotiatethis

matter or to discuss arbitration. Although Iran and the United

States do not maintaindiplomaticrelations,Iran could have

lrranianMernorial, para. 2.68.11551 PRELIMINARY OBJECTIONS 157

approachedthe UnitedStates througha number of channels: the
U.S. Interests Sectionat the Swiss Embassy in Tehran; the

Iranian Interests Sectionat the ~lgerianErnbassy in

Washington, D.C.; the United Nations; the Iran-U.S. Clairns

Tribunal in The Hague; or any willing third-countryor

international organization. Thess channels havein Eactbeen

used by both parties on many occasions to communicaterequests

and negotiateand resolve specificbilateral issues.
Moreover, there is no basis upon which to concludethat

such efforts didnot have the potentialfor succeeding. Quite

to the contrary,notwithstanding their political relations, the

United States and Ican have, since 1981, been enqaged in very

substantial and frequent negotiations on claims issuesand

arhitrationbefore theIran-U.S.ClairnsTribunal involving

billionsoE dollars. Indeed,they have reaehed agreements
settlingdisputes worth hundreds of millionsof dollars and

have arbitrated other disputes worth many more hundredsof

millionsof dollars.

During the very period inquestion (from 3 duly 1988 to17

May 1989), representativesof the twogovernrnents were engaged

in ongoingsettlement discussions in connection withboth

private and governrnent-to-governmentclairnsbefore the

Tribunal, and representativesof the governrnents held158 AERIAL INCIDENT

face-to-face meetingsno less than 16 times in The Hague. Such

discussionsresulted ina large number of settlements. For

example, there were 26 awards on agreed terms of U.S.

nationals'claims during this period, each authorizing and

approving payrnentof settlernents agreed uponby the two

governmentsl. Similarly,on 16 March 1989, the Tribunalissued
an award on agreed termsreflecting a settlement betweenIran

and the United Statesof two claims by agencies of the two

governrnents2.

The two governmentsalso engaged in active arbitration

before the Tribunal. For example, in August 1988, following

extensivebriefingand oral argumentby the two governments,
the Tribunal handed down a decisiondenying Iran'sclairnfor

the return of substantialamountsof militaryequipmentheld by

the United States, but requiringthe United Statesto pay Iran

the valueof those items3. The two sides thereafterengaged

eriod Endlns 30 Jun

'Sze Irania Assets LitlaationReDortec , 24 Mar. 1989,
pp. 17064-17065(Exhibit 83).
,. . , 23 Sep. 1988.
3~ -an Assets LltluationReporte€
pp. 16312-16313(~xhibit 83).il571 PRELIMINARY OBJECTIONS

in extensive negotiations on the amountsdue for various

categories of equipment. In addition, in November 1988 Iranian
and U.S. arbitratorsat the Tribunal agreedon two neutral

arbitrators to replace two arbitrators whohad resignedl.

Through 30 June 1989, the Tribunal had issued a total of

189 awards on agreed tems and 204 awards relating todisputed

claims2. Including awardsin agreed terms, the Tribunalhad

awarded over US $1,500 million to U.S. and Iranianprivate and

government claimants3.

Iran's claim that negotiations overany claims arising

Erom the incidentof 3 July 1988 would havebeen fruitlessis

clearly contradictedby this recordof uninterrupted,
productive negotiation and arbitration between the two

governments.

Iran's assertionsthat the United Statesrefused other

methods of pacific settlernentof this matter and refused to

-al Re~ort, 30 June 1989, p~: &, , Exhibit 83,
P. +; mal Report of the Lran-U.S. Clams Tribual for the
Pe~iod -a 30 June 1988, pp. 3-4 (Exhibit 83).

2~al Re!Jort, 30,&.ne 19R9, M. m., Exhibit 83, p. 23.
These Figures donot includepartial awardsin either category.

'-1 Reoort 30 Jus 1982, a. d., Exhibit 83, p. 24160 AERIALINCIDENT il581

express a preference For arbitration are similarly rnisleading

and seek to shift Erom itselE to the United States the burden

for satisfyingthe requirementunder Article 14 to request

arbitration. Iran Eails to identify when or how the United

States "refused" such other methods. The reasonis that the

United States in fact never refused toundertake negotiationor

arbitration with Iran. Irannever communicated to the United

States a request to enter into negotiationsor arbitration

about thisdispute, whether for purposes of liability under the

Chicago Convention or liability on any othec basis. Iran did

not identify the Montreal Convention as the basis for any claim

against the United Statesin connection with the incidentof 3

July 1988 until it filed its ~pplicationl,and even then did

not identify the Treatyof Amity as a basis for its claim.

l~he only referenceto the Montreal Convention by Iran in
its presentation to the ICAO Council or the U.N. Security
Council during their deliberations concerning the Iran Air
Flight 655 incident wascontained in a Working Paper submitted
by Iran to the ICAO Council. That reference was contained in a
list of general authoritiesand ICAO actions relating to
alleged violations of internationallaw by the United States
unrelated to the shootdownof Iran Air 655. Exhibit 12,
ICAO DOC. C-WP/B644. PRELIMINARYOBJECTIONS 161

Contrary to Iran's suggestions1,it was the United States

that repeatedlysought to engage the Governmentof Iranin this

matter, for the purposeof establishing a mechanisrnfor

compensatingthe familiesof the Iranianvictims. By

diplornaticdemarchesthroughout 1988 and 1989, the United
States sought to engage the Governmentof Iran and its entities

in a discussionof this matter, and especially sought

information for purposesof payingcompensation tothe families

of the victims -- compensation now sough ty Iran before this

Court. Had Iranrespondedto these overtures, therewould
perhaps be no need forIran tonow ask thisCourt for such

relief. The fact that the compensation was offeredon an a

gratia basis and that the United States wishedit tobe paid

directly tothe families,doea not undermine thewillingnessof

the United States to seeka resolutionof this matter. If Iran

objected to the terrnsof the United Statesoffer, it was

incumhenton Iran to make a counter-offerthroughnegotiation,

rania Mneranrialpara. 2.68.162 AERIALINCIDENT

or to request thatunresolvedissues be put to an arbitral

tribunal. Iran, however, did nothin along these lines prior

to filing its Application before this Court.

Nor can Iran rely upon differences between its position

and that ofthe United States on the substance of its claims to

excuse its failure to seek negotiationsor arbitration. The

purpose of negotiationsand arbitrationis to resolvesuch

differences.

Section II. The Court's Prior RulinqsRequire a Much Greater
Effort at Resolving a DisputeThan Has Been Shownby Iran.

Prior rulings by this Court areclear that a much greater

effort by Iran at resolving thisdispute is necessary beforeit

can be said that further negotiations are futile.At the time

the Application wasfiled in this case, there wasno discussion

between theparties that resulted in a deadlockor in a refusa1

of one of the partiesto go on1. Rather, the longstanding and

highly successful negotiations and arbitrations between

'%E Muumatis Palestine Concessions. Judwnt No. 2-
P.C.I.J.. Series A. No. Zr at p. 13.il611 PRELIMINARYOBJECTIONS
Iran and the United States at the ClairnsTribunaland the

United States' offer to paycompensationis evidencethat no

deadlock existed on the basis of which the Court might Eind

that "no reasonableprobabilityexists that further

negotiationswould lead to a settlementl." En reality,Iran by

its Application -- not the United States by its offers to

engage Iran on the questionof compensation -- preemptedthe
possibilityfor negotiationor arbitration.

The requirement toseek arbitration is in no way

conditionedon the notion tbat the reguirementrnaybe ignored

if the eEEort appears fruitless. At a minimum, a requestfor

arbitration must be made, the moving party mustbe preparedto

engage in discussionof the terms forsuch an arbitration,and

six rnonthsmust elapse, beforethere is any right to resort to
the Court. Iran complied witn hone of these essential

requirements .

. $ . .
LC.J.l~oRe~orts 1962, p. 319. atnap. 345. AERIAL INCIDENT [1621

But even if there is thought to be some exception where

negotiations or arbitration is not a reasonable probability,

the burden is upon Iran to show that there was and is no

"reasonable probability" thatdiplornaticnegotiations or

arbitration between Iranand the United States can resolve this

dispute. When faced with a similar burden in United States

-ular Staff in Tehran, the United States

introduced evidence that Iran had refused to receive a

representative sent to negotiate on the matter (Mr. Ramsey

Clark) and that the Ayatollah Khomeini had ordered that under

no circurnstancesshould rnembers of the Islamic Revolutionary

Council meet with U.S. representativesl.

Iran can produce no such evidence in this case. The

Government of Iran made no effort to provide a representative

to negotiate this issue. If the Iran Insurance Company

constitutes such a representative, it did not identify itself

as such, and did not respond to efforts by the United States to

1 1

Staff, Tehr1p.6-37.il631 PRELIMINARY OBJECTIONS

determineits relationshipto the Governrnent of Iran. There

was never any statement by the UnitedStates that it was

unwilling to talk with IranianGovernrnent representativesabout

this matter. Moreover, Iran did not respondto repeated
efforts by the United States to resolvethis matter.

Indeed, the recordclearly indicates that Iran never

consideredthis case in light of the MontrealConventionuntil

it decided to go to the Court and began casting about for a

basis of jurisdictionto do so. Certainly, Iran never macleany

atternptto satisEy its obligationto negotiateor seek

arbitrationunder the MontrealConvention. AERIAL INCIDENT

CHAPTPR II

THE CLAIMS SUBMITTED BY IRAN HAVE NO CONNECTION TO THE MONTREAL
CONVENTION.

As demonstrated in Part II, the mere assertionby Iran

that the United States' actionsrelate to the Montreal

Convention is not sufficient to establish the jurisdiction of

the Court. Iranmust establish a reasonable connectionbetween

the subject matter of the dispute and the Convention.

Iran argues that the mere assertion of a violation of an

agreement providing jutisdiction for the Court to entertain

disputes is suEficient to e;tablish jurisdictionunder that

convention. Thus, after alleging violations by the United
States of the Montreal Convention, Iran asserts that "[tlhe

very fact that the United States denies any legal

responsibilityfor its actions evidences the existenceof a

dispute" concerning the interpretation or application of the

~onventionl. Such an assertion Elies in the face of simple

logic and the pronouncementsof the Court.

l~ranianHemorial, para. 2.63 PRELIMINARYOBJECTIONS

The principal issueis a purely a questionof Law:

whether the MontrealConventionis relevantto the facts upon

which the clairnsasserted by Iran rest. 30th the terms of the

Convention and its history, as well as subsequent practice,

demonstrate Chat the Convention does not address the actions of

States against civil aircraft,and inparticularclearly does

not apply to the actionsof a State's armed forces engagedin

armed conflict.

History Demonstrate That Offenses Referretentdo in ThatIts
Convention Relateto the Conductof Individuals,Not to the
Actions of States Against Civil Aircraft.

In the Eirst instance,a tceaty is to be interpreted in

accordance withthe ordinarymeaning to be given to its terms

in their context and in lightof its object and purpose'. On

its face, the MontrealConvention addresses acts against civil

aircraft committed by individuals -- not by States.

Vienna Conventionon the Law of Treaties,Art. 31(1),
U.N. Doc. A/CONF. 39/27, p. 293 {1969), refleetingcustomary
internationallaw on this point.168 AERlAL INCIDENT [I661

(Individualterroristsmight, of course, be covertlydirected

or supportedby States in particularincidents;that, however,

is not the situationin the presentcase.)

Although the Convention establishes various obligationson

Contracting States,these obligations onlyapply in cases where

"persons"have committedoffensesunder Article ll.

Specifically,Article I provides:

intentionally:n cornmitsan offence if he unlawfullyand

(a) performsan act ofviolence against a person on
board an aircraft in flight if that act is
likely toendangerthe safetyof that aircraft;
O K

(b) destroysan aircraftin serviceor causes damage
to such an aircraftwhich renders it incapable
of flight or which is likely to endanger its
safety in flight;or

(c) places or causes to be placed on an aircraftin
service,by any means whatsoever,a device or
substance which is likely todestroy that
aitcraft,or to cause damage to it which renders
it incapableof flight,or to cause damage to it
which is likely to endanger its safety in
flight;or

l~ran'sassertionto the contrary notwithstanding (Iranian
Memorial, para. 3.55). the 1988 Conventionon Maritime Safety
(Exhibit 74) does not define "person"to includea foreign
State. PRELIMINARY OBJECTIONS 169

(d) destroysor damages air navigationfacilitiesor
interferes withtheir operation,if any such act
is likely to endanger the safety of aircraftin
flight;or

(e) false, thereby endangeringhithe safety of anbe
aircraft inflight.

2. Any person al50 commits an Offence if k:

(a) attemptsto commit any of the offencesmentioned
in paragraph 1 of this Article;or

(b) is an accompliceof a person who commitsor
attemptsto commit any such offence."

(Emphasisadded.}

The use of the terms "person"and "heu in their osdinary

meaning does not refer to States or governments, which are
abstractand incorporeal entities. Moreoverthe actions which

are made offenses under Article 1 generallydescribecommon

criminalactivities of individuals,not theactivities Of

statesl.

Had the ContractingStates to the MontrealConvention

intended the word "person"to be interpretedin a manner

differentfrom its common meaning, theywould have so defined

the termor otherwisegiven some other clear indicatio nf

their intent to do so. No such definitionor indication

l~ee also Enhibit 7, Arts. 7, 8, and 13.170 AERIAL INCIDENT il68]

exists. Indeed, the meaning of the term, when read in the
context of the MontrealConvention,confirmsthat the

Contracting Statesused the term to apply to human beings, and

not to States or governrnents.For example, throughoutthe

Conventiona "person"who perpetratesan "offence,"i.e., an

"offender,"is referredto as "he" or "himl. Article 5 speaks

of extraditing the"offender"and Article 6 speaks of taking
"him" into custody. That articlealso refera to an offender's

physical presence in the territoryof a Contracting Stateand

communications with the State of which the"person"is a

"national". Such provisions would become nonsensicaalnd

meaninglessif the word "persans" includedStates or

governments.
Moreover, the history of the Montreal Convention makes

clear that the "unlawful"acts towhich the Convention refers

are sabotage and other terroristor criminalactivitiesof

individuals. The 1971 Montreal (Sabotage)Conventionwas

intended tocomplement the1963 Tokyo Conventionand the 1970

'Sse, W. Exhibit 7, Arts. 5, 6, and 7[1691 PRELIMINARYOBJECTlONS
Hague (Hijacking)convention1. Al1 three were developedin

responseto hijackingsand other terroristactionscommitted by

individualsagainstcivilianaircraft. The Tokyo Convention

requiresStates to take al1 appropriatemeasures to restore

control of the hijackedaircraftto its commanderand to permit

its passengersand crew to continue theirjourney as soon as

practicable. The Hague Conventionis designed to pick up where

the Tokyo ConventionleEt off. When a plane is hijackedand
diverted to anotherState, the Convention obligatesthe

receiving Stateto apprehendthe hijackerand either prosecute

or extraditehim. The MontrealConventionis similar to the

Hague Conventionin that it obligates Statesto apprehend

offendersand either prosecuteor extraditethem.

As the UnitedNationsGeneral Assemblynoted in 1969, when

urging support for theefforts of ICA0 in preparingthe Hague

Convention,the need for the Convention was made clear by the

Convention on Offences and CertainOther Acts
Committed On Board Aircraft of 1963 (the "Tokyo Convention")
(Exhibit 75); Conventionfor the Suppressionof Unlawful
Seizureof irer rao ft1970 (the "Hague Convention") (Exhibit
76).172 AERIALINCIDENT [1TOI

large nurnberof hijackingsby individualsthat occurred in the

late 19605,over forty in 1969 alone1.

The irnrnediatirnpetusfor the MontrealConventionwas two

acts of aircraftsabotagethat occurred in Europe on 21

February 1970, oneinvolving SWISSAIR and theother Austrian

Airlines. The acts were planned and perpetratedby individual
terrorists. As a result of these incidents,the Swiss and the

Austrian Governmentsasked the ICAOCouneil to convene on an

urgent basis an international conference on aviation security.

In March, a formal request wasmade by the member States of the

European Civil Aviation Conferenef eor an Extraordinary Session

of the ICAO Assembly onthe subject. The Assembly convened in

June and directed the ICAO LegalComrnittee to prepare before

November 1970 a draft conventionon acts of violence against
international civilaviation (other than acts covered by the

draft conventionon unlawful seizureof aircraft)for

considerationat a diplornatic conferenceno later than the

'UNGA Res. 2551 (24th sess., 1969); sec alsQ UNGA Res. 2645
(25th sess., 1970) (urging fullsupport for the diplornatic
conference convenedby ICAO at The Hague in 1970 for the
Res.o286o(1554thmeeting, 1970).vention); UN Security Councilfi7i1 PRELlMlNARY OBJECTIONS
summer of 19711. The ICAO Legal Committeeprepareda draft

conventionmodelledon the draft convention on unlawful

seizures (hijacking)of aircraft. ICAO convened a diplomatic

conferencein Septernber of 1971 to considerand approve the

proposedconvention2.

At the conference,it was generallyagreed that the

provisionsof the new convention should Eollow the approachof

the recentlyadoptedBague (Hijacking)Convention. Article 1
describesa series of acts which constitute offensesunder the

Montreal Convention. In developing Articl e of the draft

convention,the Legal Committeeof ICAO determineclthat an act

would not constitutean offense if the act or omission was done

with legaL authority,in self-defense, or with other legal

justification3. The initial languageoE that Article goes

'~inutesand Documents,Internat ional Conference onAir Law
(Sep. 1971), ICAO Doc. 9081, pp. 1-2 (Exhibit 43).

2~ee aeneru Exhibit 43.

3~ocuments,ICAOLegai Committee (18th sess., Sep. - ~ct.
1970), ICAO Doc. 8910, reprintedin ICAO DOc. 8936, Vol. 2, p.
16 (Exhibit 42).174 AERlAL INCIDENT ~721

even furtherby also requiringthe intentionto deliberately

commit an unlawful act. It providesthat "any person comrnits

an offense if he unlawfullyand intentionallysp 'erformsone of

the listed acts.
It is clear froman examinationof the termsof the

Conventionand its history that it does not relateto the

actionsof States against civil aircraft. The object and

purpose of the Convention,and its companion conventionon

hijacking,was to prevent and deter individualsaboteursand

terrorists from unlawfully interferingwith civilaviationand
to ensure the punishmentof such individuals. (Again,

individual terrorists might be covertly directed or assisted by

States in particular incidents; that, however, is not the

situationin the presentcase.)

Section II. Subsequent Practicein the Applicationof the
Montreal Convention Further Establishes That the Convention
Does Not Apply to the Actionsof StatesAgainst Civil Aircraft.
When considering the contexo tf the termsof a treaty, it

is appropriateto take into accountany subsequentpractice in

the applicationof the treaty which establishet she agreementi1731 PRELIMINARYOBJECTIONS
In examining
of the parties regardingits interpretationl.
subsequentpracticewith respect to the MontrealConvention,it

is particularlyuseful to look to actions taken by ICAO.

because ICAO is the principal internationao lrganization

responsiblefor rnattersrelatingto civil aviationand was

responsiblefor producinqthe MontrealConventionand other

Conventions on civilaviation2. Moreover,al1 of the parties

to the MontrealConvention aremernbersof ICAO.
Since the Montreal Convention entered into forci en 1973,

ICAO has consideredtwo previous incidents involvingthe

shootdownof a civilian airliner by the forcesof a State.

While ICAO condemnedthose uses of force againstcivil

aircraft,it did not relyupon the MontrealConventionin

Vienna Conventionon the Law of Treaties,Art
31(3)(b), reflectingcustomaryinternationallaw.
2~rt. 44 of the Chicago Convention assignt so ICAO the
Eunctions of developing the principles and techniquesof
internationalair navigationand fostering theplanning and
developmentof internationalair transportso as to ensure the
safe and orderly growthof internationalcivil aviation
throughout theworld. For example, ICAOwas responsiblefor
developing the Tokyo Conventioo nf 1963 andthe Hague
Convention of 1970, upon whichthe MontrealConventionwas
modelled, as welI as the Rome (Terrorism) Convention O€ 1980.176 AERIAL INCIDENT i1741

making these condemnations,nor did the States whosenationals

were affectea. On the contrary, ICAO has responded to

incidentsof State actionagainstcivilian aircraftby

consideringthe adoptionof w international agreements that

would address such acts.
. .
ICA0 has not referredto the meal Convention in
...
cond~mninaactxonsof States aaainst civilian aviation. On 21
February 1973, military aircraftof the Governmentof Israel

deliberatelyshot clowna Libyan civilian airlinerthat was

off-course,Elying over Israelimilitary sitesin the Çinai,

which was a highly sensitive militaryarea. The Montreal

Conventionhad entered into force less than a month before the

incident,on 26 January 1973. Israel and nearly twenty other

ICAO members ha8 already beeome parties. Nonetheless, the
Montreal Conventionnever entered into theintense ICAO

discussion of the incident.

The ICAO Assernblydiscussed the incidentat an

extraordinary sessionthat metÉrom 27 February to 2 March

1973~. Over fortydelegatesmade statementson the

Mar. 1973),nICAO Doc.O9061,mbpp.117-64e(Exhibite45).., Feb. - 11751 PRELIMINARYOBJECTIONS
incident. Most of the speakers strongly denounceI dsrael's

action. During the politicallycharged debate,delegates

characterizedIsrael'sdeliberate downingof a civilian

airliner asa "violationof internationallaw", and a violation

of the Chicago convention1. No delegate, however,mentioned

the Montreal Convention. On the contrary,the delegate Erom

Pakistanstated:
"This incidenthad given a new dimensionto the problemof
unlawful interference with international civi aviation.
So Ear, it had been theproblemof interferenceby
individualsfor whiçh ICA0 had been trying to Find a
solution. Now,thousandsof passengerson aircraft
operating in troubledareas of the world facedanother
kind of threat, which might give rise to seriousdoubts
about the safety of civil aviation generally2."

l~he Yugoslaviandelegatedescribedthe action as a "clear
violationof international law as well as O€ the prineiplesand
purposesof the International Civil AviatioO nrganization".
Exhibit 45, p. 40. More particularly,rnanydelegates stated
that the action was a violationof the Chicago Convention.
m. m, m., p. 35 (statementof Lebanon), p. 40
(statementof Senegal}, p. 41 (staternenotf Malaysia). p. 44
(statementof Burundi}.178 AERIALINCIDENT

After considering the incident, the Assembly adopted a

resolution condemning the Israeli action and instituting an

investigation1.
The ICAO Council considered the report of the

investigation at its 79th session in June 1973. Again, no

delegate raised the Montreal convention2. The Counci1 adopted

a resolution in which the Council recalled Israel's actions,

stated that it was "convinced that such actions constitute a

serious danger against the safety of international civil

aviation," "recogniz[ed1 that sueh attitude is a flagrant

violation of the principles enshrined in the Chicago

Convention," "strongly condemn[edl the Israeli action", and

urged Israel "to comply with the aims and objectives of the

Chicago convention3."

l~xhibit 45, Res. A19-1, p. 11.

in ut es,ICAO Council (79th sess., June 1973, closed),
ICAO DOC. 9073 (Exhibit 47).

3~ction of the ICAO Council (79th sess., May - June 197311
ICAO Doc. 9097, p. 33 (Exhibit 46). PRELIMINARYOBJECTIONS

Neither of these resolutionsmentionedthe Montreal

Convention. This omissiomnust have been deliberate,since the

delegates to the Assembly and the Council were familiarwith

the terms of the Montreal Convention,which (asnoted above)

had been adopted at a September 1971internationalconference

convened under ICAO's auspices,had recentlyentered into

force, and was in force with respect toIsrael.

More recently,on 1 5eptember1983, a Soviet miiitary
airplanedeliberatelyshot down a Korean civil airlinerafter

Soviet authoritieshad trackedthe aircraftfor over two hours

by radar and visually tracked the aircraftfor over twenty

minutes. Again, the Soviet Unionand Korea were parties to the

Conventionat the time of the incident,but the Conventionwas

not discussedduring intense ICAO debate.

On 15 and 16 September, the ICAO Councilmet in

extraordinarysessionto discuss the incident1. Many delegates

strongly condemned theSoviet action. And, as in ICAO's
considerationof the 1973 shootdown,while delegates

Minutes, ICAO Council (extra.sess.. sep.1983), ICA0
Doc. 9416 (Exhibit 55).180 AERIAL INCIDENT 1~781

describedthe incident as a violationof internationallaw and

oE the Chicago convention1, they did not cite theMontreal

Convention.

The Council adopted a resolutionrecognizingthe

airliner'sdestructionas incompatiblewith theChicago

Convention,and directingthe Secretary Generalto investigate

the incident2. There was no mention in the resolutionof the

Montreal Convention. On 1 October 1983, the ICAO Assembly

l~or example, the delegateof the FederalRepublicof
Germany stated that"the spirit and the principlesof the ICAO
Convention and its Annex 2 have obviouslybeen violated."
Exhibit 55, p. 17. The delegateof the United Statessaid that
the incident violated "not only thbeasic principlesset forth
in the Convention,but also the fundamentalnorms of
international law enshrined in the Charter of the United
world." am.,estap.is23.fThe delegateof the United Kingdomzed
stated: "My governmentregardssuch explanationsas have been
given [bythe Soviet Union]as fallingwell short of valid
justificationfor the actionsof the Sovietmilitary
authoritiesin internationallaw." W., p. 36. The delegate
of Jamaica condemnedthe shootdown "as a grave violationof
international law, particularlyin relationto the safety
regulationsof the InternationalCivil AviationOrganizationof
which the USSR is a member." W., p. 38.

'~xhibit 55, Appendix Ail791 PRELIMINARY OBJECTIONS
endorsed theresolutionand urged ICAO Member States to

CO-operate in its implementation,without mentioningthe

Montreal convention'.

On 6 March 1984. after consideringthe reportof ICAO's

investigationinto the incident, theICAO Council adopted a

further resolutioncondernning the Soviet action. In the

discussion, delegates condemnedthe action as a violation of
the Chicago Convention, but not the Montrealconvention2. The

cesolutionagain specifieally cited the Chicago Conventio annd

did not mention the Montreal onv vent ion^.

If ICAO or the parties to the Montreal Convention(al1 of

whom are members of ICAO) construed Article 1 of the Convention

as applyingto the actionsof States againstcivil aircraft,

the resolutionsand debates leadingto their adoption would
have stated that the MontrealConvention,as Weil as the

l~eports and Minutes,Erec.Comm., ICAOAssernbly (24th
sess., Sep. - Oct. 1983). ICAO Doc. 9409, pp. 10-15 (Exhibit
53); Minutes, ICAO Assembly (24th sess., Sep. - Oct. 1983),
ICAO Doc. 9415, pp. 160-167 (Exhibit 54).

inut ut ICAO,Council (111thsess., Feb. - Mar. 1984),
ICAO Doc. 9441 (Exhibit 58).182 AERIAL INCIDENT

Chicago Convention,had been violated. The fact that the

MontrealConventionwas not relied uponreflectsthe

understandingthat it did not apply to such actions

That conclusionis further supported by ICAO's responseto

the shootdown O€ Iran Air Flight 655. Although that incident

was very different£rom the Israeliand Soviet shootdowns (in

that it occurredwhile the USS Vincenneswas defendingitself

during the course of active hostilitiesagainstwhat it

believedwas a rnilitaryaireraft),it is noteworthythat none

of the delegates,includingthe observerfrom Iran, mentioned
the MontrealConventionduring their discussionsof Iran Air

Flight 655l. Rather, as discussedbelow, manydelegates

Iflinutes, ICAO Council (extra. sess., 13 July 1988), ICAO
Doc. DRAFT C-Min. EXTRAORDINARY (1988)/1(Exhibit13); Minutes,
ICAO Council (extra.sess., 14 July 1988), ICAO Doc. DRAFT
C-Min. EXTRAORDINARY (1988)/2 (Exhibit14); Minutes, ICAO
Council (125th sess., 5 Dec. 1988, closed), ICAO Doc. DRAFT
C-Min. 125/12 (Exhibit 15); Minutes, ICAO Council(125thsess.,
7 Dec. 1988, closed), ICAO Doc. DRAFT C-Min. 125/13 (Exhibit
16); Minutes, ICAO Council(125th sess., 7Dec. 1988, closed),
ICAO Doc. DRAFT C-Min. 125/14 (Exhibit17); Minutes, ICAO
Council (125th sess., 14 Dec. 1988), ICAO Doc. DRAFT C-Min.
125/18 (Exhibit 18); Minutes,ICAO Council (126thsess., 13
Mar. 1989). ICAO Doc. DRAFT C-Min.126/18 (Exhibit19);
Minutes, ICAO Council (126th sess., 15 Mar. 19891, ICAO Doc.
DRAFT C-Min.126/19 (Exhibit20); Minutes. ICAO Council (126th
sess., 17 Mar. 1989), ICAO Doc. DRAFT C-Min.126/20 (Exhibit
21).urged the promptratification of Article 3 & of the Chicago

Convention, which expresslyadàressesunlawfulinterference by

States. Theresolutionadopted by the Council on 17 March 1989
appealedto States to ratify Article 3 of the Chicago

Convention,but did not mention the MontreaiConvention.'

Similarly,at the July 1988 SecurityCouncil discussionof the

incident,no representative,includingthe representative of

Iran, mentionedthe Montreal convention2.

The resoonseof ICA0 to the use of Force bv States auainst

onal civil aviationkas been to considernew

nts that would addressthe Droblm. As is
demonstratedabove, neither ICAO norany oE its Members relied

on the provisionsof the MontrealConventionin condemningthe

1973 and 1983 incidents. Instead,in 1973, and aqain in 1984,

ICAO considered new proposais that would adàress the use of

force by States againstcivilian aircraft.

l~ummar~,ICAO Council (126th sess., 17 Mar. 1989), ICAO
Doc. C-DEC 126/20 (Exhibit 22).

inut ut U.N.s,ec. Council (2818th to 282lstmeetings,
July 1988), U.N. Does. S/PV.2818 - S/PV.2821. Copies of these
documents havebeen deposited in the Registrypursuant to
Article 50 of the Rules of Court.184 AERIAL INCIDENT

In August 1973,appcoximatelysix months after ICAO
condemned Israelfor deliberatelyshootingdown a Libyan

aircraftover the Sinai, Israelimilitary aircraft divertedand

seized a Lebanesecivilian airlinercharteredby Iraqi

Airways. AlthoughIsraelsoon releasedthe airliner,the ICAO

Council met in extraordinary session and adopted a resolution

stating, in part, that the Council "considersthat these

actions by Israel constitutea violation of the Chicago

convention1. "
In the same resolution. the Council noted thatthe ICAO

Assembly and a Diplornatic Conference onAir Law were about to

meet concurrentlyin Rome. The Assembly was to consider

proposais to amend the Chicago Conventionto provide for

enforcement of the obligationa sssumed by States under the

Hague and Montreal Conventions(e.g.,their obligationto

prosecuteor extraditeindividualoffenders). The Conference

was to consider new agreementsto the same end. The Council

recommendedto the Assembly "thatit includein its agenda

l~ctionof the ICAO Council (extraordinar y 80th sess.,
Aug., Oct. - Dec. 1973), ICAO Doc. 9098, p. 57 (Exhibit52).[lS3] PRELIMINARYOBJECZIONS 185
considerationof these actions [by Israel] in violationof the

Chicago Convention"and it recommended to the Conferencethat

it "make provisionin the conventions foracts of unlawful

interferencecommitted by statesl." If Article 1 of the

MontrealConventionalready applied to such acts, then the

Council'srecommendationto theConferenceto "make provision

in the conventions" forsuch acts would haveheen unnecessary.
The proceedingsof the Assernblyand Conferenceconfirm the

understandingthat Article 1of the Montreal Convention was

understood notto apply to the actions of States againstcivil

aircraft. After the Assembly discussedIsrael'sforce-downof

the Lebanese aircraft,it adoptedResolutionA20-1. condemning186 AERIAL LNCIDENT i1841

the act as a violationof the Chicago convention1. It then
convened its ExecutiveCommitteeto consider proposaisto amend

the Chicago convention2.

The ExecutiveCornmitteeinitiallyhad before it three

proposalsto arnenthe Chicago Conventionto incorporate

e e20s1.Resolutions and PlenaryMinutes, ICAOAssembly
(20th sess. - extra., Aug.- Sep. 1973),ICAO Doc. 9087, p.14
(Exhibit 48).

'~ule 15 of the StandingRules of Procedureof the ICAO
Assernbly,States that the Comiriittceonsistof the Presidents
ContractingmStates. ICAO Doc.n7600/5C(Exhibit41).esIt has
jurisdictionto consider and reporton anyitemof the
Assembly'sagenda that the Assemblyrefers to it. u, Rule
15(e).provisions ofthe Hague and Montreal~onventionsl. Later,

during the Executive Cornmittee'sdiscussions, Switzerland,
France, and theUnited Kingdom jointly introducedan additional

proposedamendmentto the Chicago Convention regardina gcts of

unlawful interferenceby States "[tlo meet the wish of the ICAO

'one proposal,by France, would have incorporated the
operative provisions of the Hague Conventioninto theChicago
Convention,and providedthat Article 94(b) of the Chicago
Conventionwould apply. WorkinPgaper, ICAO Assembly (20th
sess. - extra.,Aug -Sept. 1973). ICAO Doc. ASO-WP/Z (Exhibit
49). Therefare,any State that didnot ratifythe proposed
amendmentwithin one yearwould cease to be a member of ICAO.
The other proposal,by the UnitedKingdom and Switzerland,
would have amended the Chicago Conventionso that (1) parties
would be obligatedto extraditeor prosecutepersans alleged to
have cornmittedacts defined as offenses by the Hague and
Montreal Conventions,and to facilitatethe continuationof the
journey of the passengersand crew, and (2)Article 87 of the
decided had noticompliedwith these obligations,so that suchncil
States wouldnot be allowed to operate their airlinesthrough
other States' airspace. Exhibit 49, ICA0Doc. A20-WP/3.

The third proposal,which Switzerland raised at the
beginningof the Executive Cornmitteemeeting on behalf of it,
France, and the UnitedKingdom,provided thatArticles 1 to 11
of the Hague Conventionand Articles 1 to 13 of the Montreal
Convention wouldbecomepart of the Chicago Convention when
two-thirdsof the partiesto theChicago Conventionbecame
parties to theother two Conventions. & Reportsand Minutes,
Exec. Comm., ICAO Assembly(20th sess. - extra.,Aug - Sept.
(ExhibitC50);oExhibit,49,. ICAO Doc. A20-WP/4,p.tz4r(text).188 AERIAL INCIDENT

Council . . . [in] itsresolutionof 20 ~ugust'." That

amendment wouldhave requiredStates not to interfere by force

or threat of Force withan aircraft of another State, subject

to the provisions of the U.N. Charter, the Chicago Convention,

and anyagreementbetween theStates concecned2.

To guide thedeleqates'discussionof the proposals,the
Chairmanof the CommitteepreparedQuestionsof Principle.

Question 3 stated "Does the ExecutiveCommitteewish to

include, in the Chicago Convention, provisionosf the Hague and

MontrealConventions?" Question5 stated "Does the Executive

Committee wish to include in theChicago Conventionprovisions

concerningacts of unlawful interferencecommittedby
tat tes?^"he Comrnitteevoted yes to both auestions4.

No delegate respondedthat Question 3 and Question 5

overlapped,or said that anaffirmativeanswer to Question 3

would necessarily make Question 5 redundant, as they wouldhave

l~xhibit 50, p. 8; Exhibit 50, pp. 34, 60

2~xhibit49, ICAO Doc. A2O-WP/lS.

3~xhibit49, ICAO Doc. AZO-WP/14.

4~xhibit 50. pp. 59, 63-64.[lx71 PRELIMlNARY OBJECTIONS 189

if the Montreal and Hague Conventions were understoodto apply

to the actions of States againstcivil aircraft. On the
contrary, in discussingthe Questionsof Principle,the

delegateof Egypt stated that the Committee "shouldnot equate

the failure of a State to act in conforrnitywith the provisions

of the Hague and MontrealConventions withthe commissionby a

State of an act endangeringinternationalcivil aviation1."

The delegateof Switzerlandnoted that those two Conventions

"dealt with measures to be taken with respect to individuals

who committed acts of unlawfulinterference2,"

The discussionwithin the Committeeof the Swiss/French/UK

proposa1on unlawful interferencewas brief 3. Again, no
delegate statedthat the proposalwas unnecessaryor redundant

because of theMontreal Convention, Onthe contrary,in

diacussingthe proposalsin general, the Swedish delegate

stated that "his deleqationthought it quite appropriatefor

l~xhibit 50, p. 41.

2~xhibit 50, p. 41.

3~xhibit50, pp. 117-119.190 AERIAL INCIDENT Il881

the ICA0 Assemblyor Council to consider the kinds of offences

covered by the Hague and MontrealConventionsand also acts of

unlawful interference with internationalcivil aviation

committed by .5tates1."

Thereafter,a working groupprepareda draft resolution

containing thetext of a proposedamendmentto the Chicago

Convention. The propasedamendmentincorporated the proposais

and suggestions made during the ExecutiveCommitteedebate into
a proposed newChapter XVI to the Chicago Convention.

Several articles in the Chapterwould have amended the Chicago

Conventionto include the obligationsof States under the Hague[1891 PRELIMINARYOBJEcTloNs 191
and Montreal Conventions,thus subjecting States that violated

those obligationsto the enforcement measures ptovided for in

the Chicago convention1.

The draft Chapter XvI & also includeda provision,

Article 79 guatec, based on the Swiss/French/UKproposa1on
unlawful State interference with civil aviation. After a brief

lm particular,the Chapter includedArticle 79 m, which
said "When an act of unlawful seizureof an aircraft hasbeen
against the safetyof civil aviation,a Elighthas been delayed
or interrupted," States must facilitatethe continuationof the
journeyoE the passengersand crew; Article 79 m, which would
have obligated States to report tothe Councilon acts of
unlawfulseizuce of an aircraft, unlawfulacts againstthe
safety of civil aviation,action taken pursuantto Art. 79 bFS,
and measures taken by States wiLh regard tothe offender;and
two articles (79 auintum and -1 that would have
incorporatedArticles 1-11of the HagueConventionand Articles
1-13 of the MontrealConventioninto the Chicago Convention.
Exhibit 49, ICA0 Doc. A20-WP/30.192 AERIALINCIDENT [1901

discussionof theArticle, the Executive Committee approve dt

by a vote of 52 in favor, none opposed, and 39 abstainingl. As

approved, the Article stated:

"Each Contraeting State undertaket so refrain from theuse
or threat of force against civil aircrafta .irportsor air
navigation facilities of another State, subject to the
Convention.f tThis Articlefshall, in no event, beand this
interpretedas legitimizingthe use or thre t of force in
violationof the rules of international law3."

Consistent with the circumstances surrounding the

development of this proposal,no delegate indicatedthat

Article 79 mater was redundant,or would simply reproduce
f
obligations alreadyfound inthe Montreal or Hague

Conventions. On the contrary, to the extent that the delegates
addressed thepoint in their remarks,they expresslyconfirmed

that the provisionwould go beyond the existing scope of those

agreements.

l~xhibit 50, pp. 145-146

'~xhibit 50, pp. 143, 145. Upon the submissionof the
ExecutiveConmittee'sreport tn the Assembly. the wording of
Article shallnot be interpreted dastauthorizingin anyd "This
circumstances theuse or threat of force in violationof the
rules of internationallaw." Exhibit 48, pp. 123-124. PRELIMINARYOBJECTlONS 193

For example, the Belgian delegate asked whether Article 79

BFs was meant to apply "notonly to acts of unlawful

interference covered by the Hague and Montreal Conventions but

also to an act committed by a State in contravention of Article

79 quata',, The French delegate replied thatArticle 79&

would apply to al1 acts of interference with international

civil aviation2. The Belgian delegate then pointed out that

Article 79 would be broader than the corresponding

reporting obligations in Article 11 of the Hague Convention and

Article 13 of the Montreal Convention, sinee "the reporting

obligation [of Article 79 -1 would cover also acts of

unlawful interference committed by states3." The delegate £rom

Barbados agreed that because they covered acts of State

'~xhibit 50, p. 132. The Belgian representativerepeated
this understanding of Article 79 just before the vote on
the Article in the Assembly. Exhibit 48, p. 129.194 AERIAL INCIDENT

interference, Articles 79 & and "were broader than the

corresponding provisions in the Hagueand Montreal

conventions1."

The Executive Committee referredChapter XVI & to the

Assembly2. There was no substantive discussion of Article 79

4uaterbefore the Assembly vote, which was 65 in favor, none

opposed, and 29 abstentions3. Bacause it did not receive the

necessarytwo-thirdsmajority of members of the Assembly, the

Article was not approved.

On the last day of the Assembly, debate on Article 79

quater was reopened. In supporting the motionto reopen debate
on the Article, thedelegate frornBahrain stated that "he had

been shockedby the failureof Article 79 auate~, which covered

l~xhibit 50, pp. 133; see also W.. p. 141 (statement of
Syria noting that a differencebetween Articles 79hh and W
and their counterpartsin the Hagueand MontrealConventions
was that the former "covered acts committed by States in
contraventionof Article 79 uats").

3& Exhibit 48, p. 130.[193] PRELIMINARY OBJECTIONS

a kind of unlawful interferencewith international civil

aviation not dealt with in any existingconventions -- the use

or threatof force by States againstcivil aircraft,airports
and airnavigationfacilitiesl." Delegationsproposed

amendments to the Article,but it again failed to receive the

two-thirdsvote necessaryfor adoption2.

Like the Assembly, the Conference focuso ed proposalsto

strengthan States' existingobligationsunder the Hagueand

MontrealConventions. Although the Conferenc dsd not have

before it proposalslikeArticle 79 auater designed

specificallyto address interferenceby States with civil
aviation, the delegates'statementsnevertheless indicate that

they understood the Hague and MontrealConventionsnot to apply

to actions of Statesagainstcivil aircraft.

A draft conventionproposed by Denmark,Finland,Norway,

and Sweden would have allowed a State to convene the ICA0

Council to consider possibleviolationsby another Stateof its

obligationsunder the Hague or MontrealConventions,and would196 AERIALINCIDENT [1941

have providedthat the Councilcould investigatethe matter and

make appropriaterecommendationsl. The proposa1took the

language defining violations directly£rom Article 1of the

Hague and MontrealConventions. If that languagewere
understoodto cover State actsagainst civil aviation, the new

convention would have covered tha ects of States aswell as of

individuals. But the sponsors expressly said that their

proposa1did not extend to State interference with civil

aviation. Inintroducingthe convention,the Swedish delegate

stated that it:

"establisheda machinery and a procedurefor dealingwith
the failure of a State, afteran act of unlawfu.1
interferencehad been eommittedoc attempted,to take the
sort O£ action requiredunder the Hague and Montreal
Conventions. . . . He would point out, in passing, that
it would be fairly easy to extend it to cover acts
committedby States, foc which theCouncil, in its
resolutionof 20 August, had recommendedthat the
Conferencemake provision2 ."

l~inutesand Documents, ICAO International Conference on
Air Law (Aug.-Sep. 1973), ICAODOC. 9225, pp. 341-343 (Exhibit
51).

'~xhibit 51, p. 98.il951 PRELIMINARYOBJECTIONS 197

The delegateof Finland later repeatedthat the proposal did

not currently coveracts of unlawful interference by a State,

although it could be amended todo sol.

No delegate ehallenged this readingof the Hague and
MontrealConventions,or otherwise assertedthat the Montreal

Conventionalreadycovered acts of States against civil

aviation.

Balgium complainedthat this proposa1 was too narrow,

sinee it was limited to the legal obligationsof the State

under the Hagueand MontrealConventions,and introdueedits

own proposala. The Belgian proposa1would have allowedany

State Party to cornplain to an ICA0 Commissionof Experts if it

"considersthat an act or omissionon the part of anothec

Contracting State constitutes a threat to the safety of

l~xhibit 51, p. 143.

Z~xhibit 51, pp. 100, 367-380.198 AERIALINCIDENT 1961

internationalcivil aviation1." The aelgian delegateexplained

that this provision "anticipatledlthe recommendation made by

the Councilin its resolutionof 20 August 19732." Several

delegatesstated that the Belgianproposal was too vague3, but

none stated that the Montrealor Hague Conventionsalready

covered certainacts by States againstcivil aviation.
In the end, the Conferenceand the Assembly wereunable to

agree on any new conventionsor amendmentsto the Chicago

Convention.

At the September 1983 ICAO Councilmeeting on the Korean

Air Lines incident,France proposed "a full and impartial

enquiry"of the incident andput forward "technical proposals
aimed at preventinga repetitionof such events4." In

l~xhibit 51, p. 369 (Article 3(1)). The Commissionwould
then be able to investigate the allegation and make
recommendationsto States to "'cakethe protective measures it
deems necessaryto ensure the securityof internationalcivil
aviationto the exclusionof penal or coerciverneasures."
IbidL, p. 370 (Article3(6}}.

3a, -, Exhibit 51, p. 147 (statement ofArgentinal,P-
156 (statementof Mexico).

inut ut ICOs,Council (Sep.1983), pe. a., Exhibit 55,
p. 10.i1971 PRELIMINARYOBJECTIONS 199

addition, Francerequested"al1 States, through this Council,

to adopt with thehighest priorityan amendrnent to the

Convention on International Civil Aviatio involvingan

undertakingby al1 Member States of the Organizationto refrain

from recourse to the use of force againstcivil aircraft

subjectto the provisions of the Charterof the United
~ationsl."

Many representatives spoke in supportof the French

proposal to arnendthe Chicago convention2.In theirstaternents

of support, some representativesreferredto the similar

proposalsraised in 1973 at the Rome Conference,and expressed

their disappointmentthat those proposalshad not been

approved3. Notably,no representativereferredto the Montreal
Convention.

l~xhibit 55, p. 10; Working Paper, ICAO Council (extra.
sess.), ICAO Doc. C-WP/7694 (textof French proposa1with
addendum) (Exhibit 56).

17 (staternenotf the FederalRepublicof Germany), ofp. 29n), p.
(statementof Colombia), p, 31 (statementof Denrnark), p. 53
(statementsoE Venezuelaand the United States).

3~xhibit 55, p. 17 (staternentof Nigeria),p. 21 (statement
of Venezuela). AERlALINCIDENT il981

The Council agreedby consensus "toinclude in its work

programmeand examine with thehighestprioritythe questionof

an amendmentto the Convention on International Civil Aviation

involvingan undertakingto abstain from recourse to the use of

force against civil aircraftl." The Council then voted to

convene an extraordinary session of the ICAO Assembly to meet
in 1984 to consider the amendment2.

The ICAO Assemblymet from 24 April to 10 May 1984. After

discussionof ways to preventunlawfulinterferenceby States

with civilaircraft,the ~xecutiveCornmittee proposed that the

Assembly approvea new Article 3 hj5, which states in part,

"The ContractingStates recognizethat every Statemust
refrain £rom resortingto the use of weapons against civil
aircraftin flight and that, in case of interception,the
notebeoendangered. This provisionshould not beircraftmust
interpreted as modifying in any way the rights and
obligationsof States set forth in the Charterof the
United ~ations~."

2~xhibit 55, pp. 55-56.

3~eportsand Minutes.Exec. Comm., ICAO Assembly(25th
sess. - extra.,Apr, - May 19841, ICAO Doc. 9438, p. 3 (Exhibit
International Civil Aviation,ansigned at Montreal on 10 Mayon
1984, ICAO Doc. 9436. Sef Exhibit 61.[199] PRELIMINARYOBJECTIONS 201

The Assembly approved theproposa1and submittedit to member

States for ratification1

Again, neither the resolutions nor the discussionin ICAO
stated that the MontrealConventionalreadycovered acts by

States against civil aircraftZ.

The fact that ICAO has never appliedthe Montreal

Conventionto acts of States againstcivil aviation, even when

it has condemnedthose aets as contraryto international law,

unequivocallyconfirrns that the MontrealConventiondoes not

address the actionsof States againstcivil aircraft. When

'~rt. 3 bis has not yet entered into force although61
States have ratifiedit. In accordance with para. 4(d), the
Protocolshall corneinto force on the date of depositof the
lOZnd instrumentof ratification. (Exhibit61). Neither the
United Statesnor Iran ha6 ratified Art. 3 Lis at the time of
the incident.

2~ large number of deleqatesstated thatthe obligationfor
States not touse forceagainstcivil aviationalready existed
in general international law. Exhibit 60, p. 3 (statementof
France), p. 19 (statementof the Republicof Korea), p. 22
(statementof Jarnaica), p. 30 (statementof Canada). p. 36
States),np.f45u(statementof the Netherlands),p,Uni47d(statement
of Ireland), p. 61 (staternentof Switzerland), p. 75 (statement
of Brazil). None, however, suggestedthat the Montreal
Convention was one of the sourcesof that obligation, much less
stated thatthe provisionsirnplyincorporated Article 1 of the
Montreal Convention into the Chicago Convention.202 AERIAL INCIDENT [2001

ICAO's affirmativesteps to draft provisionsin the Chicago

Conventionto provide for such action are also considered, it

is clear that the subsequent practice with respect to the

Montreal and Chicago Conventionsdemonstratesthat Article 1 of

the Montreal Conventiondoes not apply to such State action.

Address the ActionsnofeMilitaryForces Engaged inActiveto
Hostilities.

As dernonstratedabove, the MontrealConventionwas

intendedto prevent and deter saboteursand terroristsfrom

unlawfully interfering with civil aviatia ond endangering

innocent lives. The draftersof the Convention didnot discuss
the actionsof military forces acting on behalf of a State

during hostilities,and there is no reason to believe that they

intended the Convention to extend to such actions. Indeed,if

the drafters had intended to address such actions, they would

necessarily havehad to address many other aspects of the

actionsof military forcesduring arrnedconflict.

The laws of arrnedconflict arefirmly establishedin
customary international laa ws a well-developed bodyof law[2oIl PRELlMlNARYOBJECTIONS
separatefrom the principles of law generallyapplicablein

times of peacel.

One fundamentalaspect of the lawsof armed conflict is

the inherentright of self-defense, recognized in Article 51 of

the Charter of the United ~ations'. This right includes the

right of individual military units todefend themselvesfrom

attack. The conditions callingfor the applicationof this

inherent right of self-defense must be exercisedin the
judgment ofthe officers responsiblefor the safety of those

military unitsand theirpersonnel. The applicatioo nf these

F. Kalshoven,Çonstraintson the Waaina of wu, P. 7
(1987) (Exhibit 77).

'~rticle 51 provides: "Nothingin the present Charter
self-defenseif an armed attack occuts against a cMemberiof the
United Nations, until the Security Councilhas taken rneasures
necessaryto maintain international peaceand security.
Measures taken by members in the exercise ofthis rightof
self-defenseshall be immediatelyreportedto the Security
Council and shall not in any way affect theauthotityand
responsibilityof the Security Councilunder the present
Charter to take at any time such action as it deems necessary
in order to maintain or restore international peaca end
security." Followingthe eventsof 3 July 1988, the United
States submitteda letter to the Presidentof the Security
Council reportingthe actions that its rnilitaryforces had
taken in the exerciseoE its inherentright of self defense.
Letter dated 6 July 1988 from theActing Permanent
Representativeof the United States of America to the United
Nations Addressed to the Presidentof the SecurityCouncii,
United Nations Document S/19989 (Exhibit 27).204 AERIALINCIDENT t2021

laws of armed conflictdoes not depend on the recognition of

the existenceof a formal state of "war", but on whether an

"armed conflict" existsl. Although it may be difficult to

define in the abstract al1 of the cireumstancesthat constitute

an armedconflict, there is universal agreementthat hostile

operations carried out by military units of one countryagainst

the military unitsof another (such as was occurring between

the military forcesof the United States and Iran at the time

that Iran Air Flight 655 was downed) constitute an armed

confiict2.

The United States consistently applied th law of armed
conflict, including the 1949 Geneva Conventions,to al1 of its

hostile encounters withIranian forcesduring this period. For

example, Iranian crewmen capturedduring the incidentinvolving

the IranAjr (see Annex 1) were accordedprisoner of war status

and were releasedto the Omani Red Crescent Societyfor their

return to Iran.

l~nternationalCommitteeof the Red Cross, CDmmentarv on
onal Protocolsof B Jwe 1977 to the Geneva
Conventions of 12 Auaust 1942 (Y. Sandoz,C. Swinarski, B.
Zimmermann,eds,), pp. 39-40 (1987) (hereinafter the "ïCK
entaries")(Exhibit 78); F. Kalshoven, m. U., Exhibit
77, p. 27.
'ICRC CO-. QQ. m., Exhibit 78, p. 40.12031 PRELIMINARYOBJECTIONS
Infringementson the laws of armed conflict through

international agreements primarilyaddressingsituationsother

than armed conflictare not to be presumed. There is no

indicationthat the draftersof the MontrealConvention

intendedit to appLy to rnilitaryforces acting in armed

conflict. If they had so intended,they would have had to

address a myriad of issues relatingto acts by military

forces. Forexample,the First Additional Protocot lo the
Geneva Conventionsof 1949 appliesto medical aircraftduring

armed conflictl. It addresses,inter alia. the status of

medical aircraftin areas controlledby an adverse Party

(Article 27). in areas not controlled byan adverse Party

(Article 25). and in zones in which opposing forces are in

contact (Article 26), It lists restrictionson the use of

rnedicalaircraft (Article 28), providesfor means of

lm~rotocolAdditionalto theGeneva Conventionsof 12
August 1949, and Relating to the Protectionof Victims of
International Armed Conflicts (Protocol 1)". reprintedin 72
m. J, fnt'l Law (1978), pp. 457, 467-470 (Exhibit 79).206 AERIAL INCIDENT [2041

notificationof theaircraft'spresence toa Party (Article

29), and provides for inspectionof the aircraftby Parties to

ensure that it is a medical aircraft actingin accordancewith

the Frotocol (Article 30).

Similar provisions on identification, restrictions,

notification,and inspection would have been requiredif the

Montreal Conventionhad been intended to apply to acts by
military forcesin armed conflicts. Most obviously,the

Convention would have had to addresscivilian aircraftthat

stray into combat zones, and under what conditionssuch

aircraft were no longer protectedby the terms of the

Convention. Article 26 of the First Protocol,for example.

States that medical aircraftflying over a combat zone "operate

at their own risk" absent an agreement between the competent
military authoritiesto the conflictl. Similarly.the 1923

Hague Rules of Aerial Warfare statedthat if:

"a belligerentcommandingofficer considersthat the
presenceof an aircraft is likelyto prejudicethe success
of the operationsin which he is engaged at the moment,he PRELIMINARY OBJECTIONS 207

irnrnediativicinityof his forces or may obligen ththem to
follow a particularroute. A neutral aircraft which does
not conforrnto such directions,of which it has had notice
issu d by the belligerentcommanding officer,may be fired
upon ."

It is inconceivablethat the draftersof the Montreal

Convention,who never mentionedany of these issues, let alone

addressed themin the Convention,intende.d it to apply to the

actionsof of the armed forces of States.

When, 14 years Iater,the ICA0 Assemblydrafted Article 3

of the Chicago Convention, discussedabove, it was careful

to includein the Article a statementthat it "shouldnot be
interpreted as modifying inany way the rights and obligations

of States set Eorth inthe Charterof the United Nations;'

which includedthe inherentright of self-defense. The

participantsat the Montrealconferencewould have included a

similarprovision if they had intendedthe Montreal Convention

to modify thelaws of armed conflict,and particularlyif they

had intended toaddress actionsby military Eorces in armed

conflict. There is no such provisionin the Montreal

Convention. Quite to the contrary, the onlyreferenceto

lçommission of Jurists to Co&
. . &vision of the Rules of Warlare, p~~r2~;f2::D(:i2:)~E~??bit
80).208 AERlALINCIDENT 12061

military forces in the Convention is Article 4(1), a provision

that effectively excludes €rom the definition of offenses

actions directed at military aircraft.

The subsequent practice of States with respect to the

Montreal Convention confirms that it was the understandingof

ICAO and its member States that the Convention does not apply

to actions of the armed forces of States. As noted above, ICAO

did not condemn either the 1973 Israeli action or the 1983

Soviet action as a violation of the Convention. Nor did any

delegation suggest during the extensive deliberations in ICAO

that the pilots of the military aircraft involvedviolated the

Convention. This practice simply confirms that the Convention

was not intended and has not been understood to apply to

actions taken by members of the armed forces of a State acting

under military command.

There have been a number of instances since the Montreal

Convention in which military aircraft havedestroyed civilian12071 PRELIMINARYOBJECTIONS

aircraft in the context of an armed conflictl. The ICAO

Council has never condemned any of these actions as violations

of the Montreal Convention.

It is noteworthy that one of these incidents occurred in

February 1986, during the Iran-Iraq War, when Iran reported

that Iraqi fighters had shot down an Iranian civilian

aircraft. In Iran's letters reporting the incident to the

President of the ICAO Council and to the U.N.

Secretary-General, Iran did not describe the action as a

Province",uW. "4oAug. F1981, p.rU1;f"Government Confirms Role
in French Plane Downing", m, 5 Aug. 1981. p. U3 (French
civilian airliner reportedly shot down by Mozambique in
Mozambique airapace); "Iraqi Troops Push Back Iranians in Key
Gulf Arean, N.Y, Times, 21 Feb. 1986; "6 M.I.P. Died on Plane,
Iran Says", p.Y. Ti-, 22 Feb. 1986, p. L+5 (Iran reported
that Iraq shot down an Iranian civilian airplane); "Mozambique
Downs Plane", N.Y. Timeg, 8 Nov. 1987, p. 26; "Communique
Issued on Malawi Aireraft Incident, 30 Nov. 1987, p. 10
(Air Malawi aircraft shot down hy Mozambique). S& Exhibit 35.210 AERIAL INCIDENT [2081

violationof the MontrealConvention,despite the fact that

both it and Iraqwere at the time parties to the Convention.

Instead,it cited onlythe Chicago convention1.

It is clear that Erom the plainmeaning of the termsin

their context and in light of the object and purposes of the

Convention, the history ofthe Conventionand subsequent

practice of States in regard to it, not only that the Montreal

Conventiondoes not address the actionsof States against civil
aircraft,but also that theConvention was not intended inany

way to affect or add to the laws of armed eonflict.

As clearlydemonstrated above in Part 1, Chapter II, the

actionsof the United States upon which Iran'sclaims in this

case rest were taken by the military forcesof the United

l~etter dated 10 Mar. 1986£rom the Representativeof the
Islamic Republic of Iran to the ICAO Council President,ICAO
Doc. PRES AK/106; Letter dated 20 Feb. 1986 from the
Representativeof the Islamic Republic of Iran to the
Secretary-General,U.N. Doc. S/17850;Letter dated 25 Feb. 1986
Erom the Representativeof the Islamic Republicof Iran to the
Secretary-General,U.N. Doc. S/17863;Letter dated 5 Mar. 1986
Erom the Representative of the Islamic Republic of Iran to the
Secretary-General,U.N. Doc. S/17896 (Exhibit81). PRELIMINARYOBJECTIONS

States engaged in active hostilities with military forces of

Iran. Under customary international law and relevant

conventions, the actions of the parties in such a situation are

governed by the laws of armed conflict.

It follows from the above that the Convention does not

apply to the actions of the USS Vincu an 3 July 1988. The

actions of the United States that occurred in regard to the

incident of 3 July 1988 were taken by the captain and crew of

the USS Vincenncg, with the authorization of the U.S. Commander

of the Joint Task Force Middle East. while they were engaged in

active hostilities provoked by Iranian armed forces. These

were actions of the United States, and not of "personsm as

contemplated by Article 1.

It is clear that the Montreal Convention was not intended

to address such actions, whether under Article 1, prohibiting

certain actions by.individuals,or under Articles 3 and 10(1),

imposing certain affirmative obligations on Contracting States212 AERIAL INCIDENT

in regard to such individuals1. (Again, this is not a

situation where individual terrorists might have been covertly

directed or assisted by a State.)

l~he formal investigationby United States militaryinto
the circumstances surrounding the downing of Iran Air Flight
655 included an investigationinto and recornmendations
regarding possible disciplinaryand administrativeaction
against any United States naval personnel associated with the
incident. Based upon an exhaustive analysis of al1 of the
available information,that investigation concludedthat no
disciplinary or administrative action should be taken. ICA0
Report, AppendixE, p. E-55. In approving the recornrnendations
regarding disciplinaryand administrative action, the U.S.
Chairrnanof the Joint Chiefsof Staff stated:

"It is my view that, understanding theentire context,
reasonable minds will conclude that the Commanding Officer
did what his nation expectedof him in the defense of his
ship and crew. This regrettable accident, a by-product of
the Iran-Iraq war, wasnot the result of culpable conduct
onboard VINCENNES." PART V

THE TREATY OF mIm PROVIDES NO BASIS

FOR JUREDICTION IN THIS CASE 1131 PRELIMINARY OBJECTIONS 215

In its Memorial, Iran asserts for the first time that the

1955 Treaty of Amity between Iran and the United States

constitutes an additional basis of jurisdiction for the

court1. Iran's inclusion of the Treaty of Amity in its

Memorial as a basis of jurisdiction is striking because Iran,

through its words and actions, for many years has consistently

treated this Treaty as no longer in force. Nevertheless Iran

expects this Court to ignore Iran's previous conduct under the

Treaty and accept that it is "entitled to invoke its

provisions2." The United States is compelleà to bring to the

Court's attention Iran's prior conduct with respect to its

obligations under this Treaty, which shows that Iran is now
asserting in bad faith its rights under the compromissory

clause of the Treaty of Amity.

In the case concerning United States Di~lomaticand

lac Staff in w3, the United States filed an

Application before this Court asserting that it had

ranian aMemorial, para. 2.72.

2~ranian Memorial, para. 2.77.

319801.C.J. p. 3.216 AERIAL INCIDENT

jurisdiction inter alia under Article XXI of the Treaty of

Amity, the same basis of jurisdiction now pied by Iran in this

case. The Government of Iran informed the Court that the

United States' claims werenot properly before the Court;

indeed, Iran did not even appear before the Court in that

case1. When the Court ultimately renderedits judgment, Iran

did not comply with it. Now Iran expects this Court to allow

Iran to bring the United States before the Court on the basis

of the very same cornpromissoryclause of the Treaty of Amity.

This manifest abuse of its obligations under the Treaty should

bar Iran from prevailing now in asserting itsrights under the

Treaty. As Sir Hersch Lauterpachthas written:

"A State cannot be allowed to avail itself of the
advantages of the treaty when it suits it to do so and
repudiate it when its performance becornesonerous. It is
of little consequence whether that rule is based on what in
English law is known as the principle of estoppel 9 r the
more generally conceived requirement of good faith ."

'W., pp. 18-19.

2~pecial Rapporteur Lauterpacht, "Reporton the Law of
Treaties", II Y.B. Int'l L. Comm'n, p. 90 at p. 144 (1953)
(Exhibit 82); m, T~BQL~ of PereahVihear,Merits. Judarnent,
I.C.J. Reaorts 1962, p. 6, at p. 32; ural Award Made bv the
fins of S~ainon 23 December 1906. Judmt. I.C,J. Reports
m, p. 192, at p. 213. See aenerally I.C. MacGibbon,
"Estoppel in International Law", 7 Ln_til siQmw, L.O., p. 468
(July 1958).12151 PRELlMINARY OBJECTIONS 217

Equally, a skate cannot repudiate a treaty when it suits it to

do so, and then assert it when it appears to be a useful basis

of jurisdiction.

In a variety of cases before the Iran-U.S. Claims Tribunal,

Iran also has asserted that the Treaty of Amity was terminated

long before the incident of 3 July 1988. The Tribunal has

rejected Iran's assertion and found that the Treaty was in

force at the time the claims before it arose, that is, prior to

January 1981, but never passed on the question of the Treaty's

continuing validity after that time1.

Nonetheless, the United Stateswill not similarly engage in

this type of manipulation by reversing its own past positions

and asserting before this Court that the Treaty is not now in

force between the United States and Iran, even though the

previous decisions of the Court and the Claims Tribunal do not

foreclose that possibility. In light of Iran's conduct,

however, Iran is barred from now invoking the compromissory

clauseof the Treaty of Amity. At a minimum, in light of

lm, a, phel~s Dodae v. Ira, Award No. 217-99-2, at p.
15 (19 Mar. 1986) ("No Party cnntends that the Treaty was ever
terminated in accordance with its terrns,but the Respondent
suggests that the Treaty has been terminatedby 'implication'
as a result of economic and military sanctions imposed on Iran
by the United States in late 1979 and 1980"); &IIQCQ
Internationale COKD. v. I-, Award No. 310-56-3, at pp.
38-39 (14 July 1987) (Exhibit 84).218 AERIAL INC~DENT 12161

Iran's conduct, it is appropciate for the Court to be rigorous

in determining whethei Iran'ssudden introductionof this

Treaty as a basis of jurisdiction is sustainable.

The United States maintainsthat the Treaty does not

provide such a basis for jurisdiction. First, by invoking the

Treaty of Amity in it~ Memorial, Iran is seeking to transfocm

the dispute brought before the Courtin the Application into

another disputewhich is wholly different and much more

expansive in character. Second, the Treatyof Amity is wholly

irrelevant to the dispute that is the subject oE Iran's

Application. Third, as was the case for the comprornissory

clause of the Montreai Convention, Iran has made no effort to

adjust by diplomacy its alleged dispute under the Treaty, as is

required by the Treaty.12171 PRELIMINARYOBJECTIONS

CHAPTER 1

IN INVOKING THE TREATY OF AMITY IN IT5 MEMORIAL, IRAN IS
TRANSFORMING THE DISPUTE BROUGHT BEFORE THE COURT IN ITS
APPLICATION INTO ANOTHER DISPUTEWHICH IS WHOLLY DIFFERENTAND
MVCH MORE EXPANSIVE IN CHARACTER.

In its Memorial, Iran for the first time asserts the 1955

Treaty of Amity as a basis of the Court's jurisdictionl.

Throughout Iran's efforts at the United Nations and ICA0 to

obtain eondemnation of the United States for the incident of 3

July 1988. Iran never once asserted that the United States had

violated the Treaty of Amity. In its Application. Iran neither

referred to this treaty as a basis for jurisdiction nor

asserted any claims arising under the treaty. Iran should not

be permitted to raise the Treaty of Amity now.

In proceedings instituted by means of an Application

pursuant to Article 40 of the Statute of the Court, the

jurisdiction of the Court is founded upon the legal grounds

specified in that Application. Article 38 of the Court's Rulea

requires that the Application "specify as far as possible the

legal grounds upon which the jurisdictionof the Court is said

to be based." Iran asserts thatafter the Eiling of the

l~ranianMemorial, para. 2.72.220 AERIAL INCIDENT I2l81

Applicationan additionalground of jurisdiction may be brought
to the Court's attentionand rnaybe taken into account by the

Court; Iran supportsthis by citing to Militarv and

paramilitarvActivltles in and aaainst Nicaraaua{Nicarawa v.
... , ...
LJnitndStateserica). Jurisdictronaod Adrnissib~litv,
. . .
Uqment (hereinafterNicaraaua,Jurisdiction )l.

By introducingthe Treaty O£ Amity in its Mernorial,Iran in

Eact is transforming the dispute with respect to that Treaty
into anotherdispute whichis wholly differentin character

from that presentea to the Respondentwhen it first appeared

before the Courtin thismatter. In its Application, Iran

stated that the facts of this casearose £rom a single

incident: the destructionof an Iranian aircraft by a United

l~.~C~.Reaorts 1984, p. 392, at pp. 426-427. Iran
misinterpretsthe Court'sruling in the Nicaraaua. Jur~&ctlOU
case. Although it is possibleunder the Statute and Rules of
the Court for "the parties totransform the character of the
case" through amendrnents in both theirsubrnissionsS ,ociete
Commerciale de Belaiaue.Judmer~L1939. P.C.I.J..Series A/BA
No. 78, p. 160, at p. 173, it is not possible for one party to
unilaterallytransforrn the case in the faceof an o...ction by
the otherparty. The decision in picaraaua.Jud~ctlon
recognizedthis when it stated that additional groundsmay not
be taken into account if the result is "to transforrn the
dispute brought before the Court by the applicctioninto
anotherdispute which is diEEerentin chacacter." I.C.J.
Reuorts 1984, p. 427.[2191 PRELIMINARYOBJEcXïoNs

States warshipl. Based on these facts, Iran requested a

judgrnentErom this Court on three points. First, Iran asked

this Court to decide that "the ICA0 Council decision" of 17

March 1989, regarding the destruction of the aircraft was

erroneous. Second, Iran asked this Court to decide that the

United States had violated the Montreal Convention by

destroying the aircraft. Third, and finally, Iran asked to

Court to declare that the United States is responsible to pay

compensation to the Islamic Republic, in the arnountto be

deterrninedby the Court, for these violations. Iran made

absolutely no claim in its Application that the United States

infringed upon its riqhts of commerce or navigation,

In its Mernorial,however, Iran goes far beyond its initial

factual statement to assert a new argument under the Treaty of

Amity. NO longer does Iran focus solely on the shootdown of

Iran Air Flight 655, nor on the issue of the lawful use of

force, but instead expands its cornplaintto cover the effect Of

U.S. rnilitarydeployments in the Gulf, and of other U.S.

'1ranian Application, section 1.222 AERIAL INCIDENT

actions not involvingmilitary force, onthe commerical

relationsof Iran and the United States over an extendedperiod

of time.

In the Memorial'sstatement of Eacts, Iran discussesin

depth the deploymentof U.S. forces to the Gulf, the issuance

of certain noticesto airmen, the U.S. economic sanctions
against Iran, and the "U.S. interferencein civil aviation"in

the Gulf, particularlyinvolvingIranianaircraftl. None of

these aileged factual mattersare the basis of the claimsset

forth in Iran's Application.

Iran then discusses in itsMemorial the applicable

principlesand ruies of lawin the case. In this section, with

respect to the alleged failure to accord "fair and equitable

treatrnent"under Article IV(1) of the Treaty, Iran refers to
the "obligationnot to interfere repeatedly with Iranian

commercialaircraft2." With respect tothe alleged failure

under Article VI11 to afford unrestricted trade,Iran states

that thisCourt "bas already held thatthe impositionoE a

1
l1ranianMemorial, paras. 1.36 - 1.57

2~ranianMemorial, para. 3.66[221] PRELlMlNARYOBJECTIONS 223

qeneral trade embargo violates the terms of a similar treaty

provision calling for freedom of commerce1." In discussingthe

alleqed violationof Articles IV(1) and XII), Iran States that

"the question arises in the contextof this case whether

repeatedinterferences with civil and commercialaircraft by
one State'srnilitaryforces, resultingin thedestructionof a

commercialairlinerover the interna1and territorial watersof

the other State, is any less of a violationof Articles IV(1)

and (X)1 of the Treaty of ~mitg~." Iran's applicationof the

Tceaty of Amity to the actual incidentof 3 July 1988 is at

best cursory. In stretching to find legal principles in the

Treaty that connects it to the incident,Iran is reducedto

introducingan entirely new factual elernentnever discussed

before by Iran relating to"the Islarnic Republic's abilityto
purchase a replacementaircraft3."

In its sectionthat purports to apply the law to the facts,

Iran cites only one article of the Treaty of Amity, in a

subsectionentitled "The Deploymentand Conduct of the U.S.

Fleet in the PersianGulf." According to Iran, this subsection

deals with "the deployment and conduct of the U.S. fleet in the

l~ranianMemorial, para. 3.66

'1ranian Mernoriai, para. 3.68.

3~ranianMemorial,para. 3.65.224 AERIAL INCIDENT 12221

Persian Gulf leading up to the incident"; this subsection is to

be distinguished from the section dealing with "the actual

shooting down of Iran Air Flight 655l." Iran asserts that,

under ~rticle X(1) of the Treaty, the United States breached

its obligation "to guarantee to the Islamic Republic freedomof

commerce and navigation2." Likewise in its submissions to the

Court, Iran pays lip service to the idea that the shooting down

of Iran Air Flight 655 was a violation of Articles IV(1) and

X(1) of the Treaty of ~mity~. but is much more thorough in its

description of the alleged Treaty violations completelyoutside

the context of the shootdown. The eighth submissionstates:

"[Tlhe United States, in stationing its warships in the
Persian Gulf within the Islamic Republic's interna1 waters
and territorial sea and in the international waters, and in
issuing and operating under the NOTAMs discussed herein,
has violated its legal obligations to the Islamic Republic
to guarantee freedornof commerce and navigation under
Article X(1) of the Treaty of Amity."

In raising the Treaty of Arnity,Iran has departed entirely from
the shootdown of Iran Air Flight 655 to try to establish that

l~ranian Memorial, para. 4.01.

2~ranian Memorial, para. 4.12.

3~ranian Memorial, fourth submission, p. 292.[223] PRELIMINARY OBJECTIONS 225

U.S. military forces in the Gulf over a long period of tirne

threatened and hindered commercial activities in violation of

the Treaty of Amity.

Furthermore Iran seeks to depict the shootdown of Iran Air

Flight 655 itself as some Eorm of interferencewith commercial

relations between the United Statesand Iran in the sense

contemplated by the Treaty of Amity. In doing$0, Iran is

trying to transforrnthis dispute €rom one that involves a

single incident involving the use of force, and that incident's
relation ko two aviation conventions, into a dispute that

atternpts to implicate UnS.-Iran commercial relationsthroughout

the Gulf War.

In Militarv and Paramilitar-st ... ,

Picaraaua. the Court permitted the Applicant to plead an

additional basis of jurisdiction after the filing of the

Application. In that case, however, Nicaragua only asserted

that the Treaty of Friendship, Commerce, and Navigation (FCN)

had been violated "by the military and paramilitary activities

of the United States in and against Nicaragua, as described in226 AERIALINCIDENT 12241

Ucaraaua's ~DDlicationl". Not only did the Applicationin

that case describe the activitiesthat theMemorial alleged

violated the FCN Treaty (themininq of Nicaraguan,portsand

territorialwaters, attackson Nicaragua's airports,and
militaryoperationsthat endangerand limit trade and traffic

on land), but the Applicationitself specificallyalleged that

the United Stateshad infringedthe "freedomof the high seas"

and interrupted"peacefulmaritime commerce2." Consequently,
in its Memorial Nicaraguaargued that the FCN Treaty was "a

complernentary foundation forthe jurisdictionof the

Court . . . insofar as the Applicationof Nicaragua implicates

violations of provisionsof the ~reat~~."

In the presentcase, Iran is now raising Eactual
circumstancesand allegationsof conduct (i.e. interference

with commerce)that are inno way reflectedin Iran's

lpii ... , Mernorialof Nicaragua, para.165
(emphasf~r:%:~)?rlsdlctlOn

ZWilitarv and Param il.itarvActivities in and aaainst
Picaraaua,Applicationof Nicaragua,para. 26(e).
3Nicaraaua ~~~.~..d~~~~~~, Memorialof Nicaragua, para. 164.12251 PRELIMINARY OBJECTIONS 227

Application. It is understandable that Iran feels compelled to

introduce activities other than the shootdown of Iran Air

Flight 655, since the incident of 3 July 1988 is not the type

of situation addressed by the Treaty of Amity. Nevertheless,

Iran cannot be permitted to so deviate £rom the Eactual and

legal basis stated in its Application so as to transform the

nature of this dispute. The new Iranian cause of action would

of necessity require an examination oE the entire pattern of

military actions during the Iran-IraqWar, the details and

justification for the alleged U.S. commercial embargo, and the

circumstances concerningcivil air operations in the area

during this entire period. To allow such a departure Erom the

basis of fact and law established in the Application would

'chreatenthe ability of this Court to maintain an orderly

judicial process. AERIALINClDENT

CHAPTER II
THE TREATY OF AMITY 1s WHOLLY IRRELEVANT TO THE DISPUTE
THAT IS THE SUBJECT OF IRAN'S APPLICATION.

The true subject of Iran'sApplicationand Mernorial is the

incidentof 3 July 1988 as it relatesto the lawful useof

force; that incident, however, is wholly irrelevant tothe

Treaty of Amity. As this Court held in makielos, "[ilt is

not enough for the claimantGovernmentto establisha remote

connection between the facts of the claim and the Treatyasupon
whose cornprornisçor clause it relies1. Iran must establish a

reasonable connection between the Treat yf Arnityand its claim

against the United States for the incidentof 3 July 1989.

Iran has failed to do so.

The Treaty of Amity is concerned with the commercial

relationship between the two countriesand their nationals,not

with darnages resultingErom an incidentinvolvingarmed force

between the two Parties. In Article XX(l)(d), the Treaty12271 PRELIMINARO YBJECTIONS 229

explicitlystates that it "shallnot precludethe application
of measures . . . necessaryto fulfill the obligationsof a

High ContractingParty for themaintenance or restoration of

internationalpeace and security, gr necessarvto Drotect its
. .
~ssentialsecurltv inte-" (emphasisadded), As stated in

aaal-t Nicaracrua
lNicarasua v. United States oflaetira), M~rits. Judament

(hereinafterMcaraaua. Me&), this Court "cannot entertain .

. .claims of breach of specificarticlesof the treaty,unless

it is first satisfiedthat the conduct cornplained of is not

'measures . . . necessaryto protect' the essentialsecurity
interestsof the Unitedstatesl."

Action taken in self-defenseis without question a part of

the category of measures "necessaryto protect"essential

security interestsZ. The USS V- was engaged in

l1.c.~. Reports 1986, p. 14, at p. 136

self-defenceagalnst an armed attackcorrespondsto measuresny that
necessaryto protect essentialsecurityinterests.").230 AERIAL INCIDENT 12281

self-defenseagainst armedattack at the time of the incident

of 3 July 1988, and perceived itselEto be under an armed

attack from a hostile approaching aircraft. As the ICA0

Investigationreport concluded: "The aircraftwas perceivedas
1,,
a military aircraftwith hostile intentions . . . .
Consequently, on the facts as pied by Iran, the Court is

presented withexactly the type of situationthe Treaty of

Amity does not eover.

In picaraaua. u, the Court wasnot faced with a

situation involving self-defense agains atperceivedimminent

armed attack. Iassessing allegationsthat the United States
had engaged in rniningof ports and direct attackson ports and

oil installations, the Court determine that such actions, even

if not actsof self-deEenseagainst armedattack,might still

implicate essential security interest if "the risk run by

these 'essential security interestsi 's reasonable.and
secondly, whether the measures presentedas being designed to

proteet these interestsare not merely useful but

'ne~essar~.~'"In the contextof the facts of that case, the

'ICAO Report, para. 3.2.1.

Merits 1 C J Reworts 1986, p. 117.12291 PRELlMlNARY OBJECTIONS
Court found that there was no threat to the United States'

essential security interests necessitatingthe mining of ports

and attackson ports and oil installations1.

Furthermore, even a cursory review of the operative

articles of the Treatyof Arnitydiscussed by Iran shows that

these articles haveno reasonableconnection to the incidentof

3 July 1988. Although in its MernorialIran discussesdifferent
articlesof the~reat~~,the only articles upon which Iran

ultimately basesits claims in its Submissionsto the Court are

Articles IV(1) and X(1) of the Treaty of ~rnit~~,

Article IV(1) provides:

"Each High Contracting Party shalalt al1 times accord fair
and equitable treatmentto nationalsand cornpanies of the
other High Contracting Party, and to theirpropertyand
enterprises; shallrefrainfrom applyingunreasonahleor
acquired rightsand interests;and shall assurethat their
lawful contracturalxights are affordedeffectivemeans of
enforcement, in conformity with the applicabll eaws."

lm., pp. 141-142.
2~ranianMernorial, paras. 3.62-3.68.

j~ranianMernorial, Submissions,pp. 292-293.232 AERIAL INCIDENT [2301

This articlemust be read in thecontext of Articles II and

III of the Treaty, which provide for the rights of nationals

and companies of one Party to enter and remain in the territory

of the other Party for the purpose of conducting commercial

activities. ArticleIV(1) then provides a general principle by

which the host Party must treat these nationals and companies:

a principle that is designed to preclude host State actions

that would impairownership and managerial control, and to
permit the vindicationof contractual rights. It cannot, and

should not, be read as a wholesale warrantyby each Party to

avoid al1 injury whatsoever to the nationalsand companies of

the other Party regardless of location and regardlessof

whether the injury relates to commercial activities. In

Nicaragua. wl, the Court refused to read into the FCN

Treaty a rule that a State binds itself "to abstain Erom any

act toward the other party which couldbe classiEied as an

unfriendly act,even if such an act is not in itself the breach

of an international obligation." Iran has not alleged and

'Nicaraaua Merits 1 C J Reports 1986, pp. 136-137.12311 PRELIMINARYOBJECTIONS 233

cannot allegethat there has beendiscriminatorytreatment
against Iraniannational5or companies. It bears notingthat

in Niearaaua.Marits, this Court did not reach the issue of

whether the UnitedStates had violated the obligation to accord

"equitabletreatment"since the evidencedid not demonstrate

that the acts alleged tohave violatedthat obligation couldbe
imputed tothe United .States1.Thus Article IV(1) has no

reasonable connection to the incidentof 3 July 1988.

Article X(1) providesthat "Between the territories of the

two High Contracting Parties there shall be freedomof commerce

and navigation." Iran'sclairnas stated in both the

Applicationand in its Mernorialdoes not involvecommerce
"between the territories of" the United Stata esd Iran.

Furthermore,Iran'sclaim does not in any fashion statea

course of actionon the part of the United States to hinderthe

freedom ofmaritimecommerce. This is to be contrastedwith

the claims presentedin p-, in which the Court234 AERIAL~NC~DENT 12321

found that there bad been a hindering of the right of access to

Nicaraguan ports by the laying of mines in early 1984 close to

various ports1.

Thus, taking Iran's claims under the Treaty of Amity as

relating only to the incident of 3 July 1988, these claims

cannot sustain the jurisdiction of the Tribunal under that

Treaty, since they are wholly irrelevant to the subject matter

eontemplated by the Treaty. PRELIMINARY OBJECTIONS

CHAPTER 11I
IRAN MAY NOT INVOKE THE COMPROMISSOR CLAUSE OF THE TREATY OF
AMITY BECAUSE IT FIASMADE NO EFFORT TO RESOLVE BY DIPLOMACY ANY
DISPUTES UNDER THE TREATYOF AMITY.

The United Statesshowed in Part IV, Chapter 1, that £rom

the time of the incidentof 3 July 1988, until Iran's

Application ras filed in this case, Iran never requestedto

meet with U.S. offieialsto discuss,negotiate,or arbitrate

this matter. Iran could haveapproachedthe United States

through anynumber of channels, incLudingthe frequent contact
of U.S. and Iranian lawyers at the Iran-U.S.Claims Tribunal in

The Hague. Moreover,from 3 July 1988 to the filing of its

Application withthis Court, Iran made no effort to respond in

any meaningful fashionto attemptsby the United Statesto make

compensationto the familiesof the victims of Iran Air Flight

Nevertheless, Iran asserts that this Courthas jurisdiction

pursuant to the compromissory clause of the Treatyof Amity.

Article XXI of the Treaty states:

"1. Each High Contracting Party shall accord
sympathetic consideration to, and shall afford adequate
opportunityfor consultation regarding, such
makeewith respect to any manner affectingthe operationof
the present treaty.236 AERIAL INCIDENT i2341

2. Any dispute between the High Contracting Parties
as to the interpretationor applicationof the present
Treaty, pot s~tisfactorilvadiustedbv di~w, shall be
submittedto the International Courtof Justice, unless the
High Contracting Parties agree to settlement by some other
pacificmeans."

(Emphasis added.)

This cornprornissorclause is cornmonto the bilateral

investrnenttreaties negotiated by the United States in the
post-World War II era. The structureprovidesthat two

conditionsrnustbe fulfilledin order to open the way to

recourseto the Court. First, there rnustbe a dispute between

the Parties as to the interpretationand applicationof the

Treaty. Second,it must be the case that thedispute has not

been "satisfactorilyadjustedby diplornacy."

Neither condition hasbeen fulfilled. It cannot be said
that thereis a dispute between Iran and the United States when

Iran has never approached the United Statea snd askedfor the

relief sought Erom this Court under the Treatyof Arnity. Even

if one believesthat there is a dispute between theparties

that can somehow be fit into the termsof the Treaty, Iran

likewisehas not in any way fulfilled thesecond condition.

Iran's allegationsmust have been the suhjectof negotiations
of sornekind prior to the institutionof these proceedingsfor

this Court to conclude that the dispute hasnot been

"satisfactorily adjustedby diplomacy."[2351 PRELIMINARYOBJECTIONS 237

Iran would like to use this Court'sruling in Nicaraavh,

On t0 support itsposition,but Iran fails to note
criticaldifierenceswith the dispute now before the Court. In

Nicaraaua. Jurisdsçtion , the Court held that "it does not

necessarilyfollow that, because a State hasnot expressly

referred in negotiations withanother State to a particular

treaty as having been violatedby conductof that other State,

it is debarred £rom invokinga compromissory clausein that

treatyl." In that case, there were, however,bilateraltalks

between the United States and Nicaragua,as well as

multilateraldiscussionsin the Contadora Group,over their .

general differences2. In the present case, however, Irannot

only did not discusswith the United Statesallegedviolations

of the Treatyof Amity, it never entered intoany discussions

or negotiations whatsoever relatingto the incidentof 3 July
1988, prior to the filingof its Application.

2Niearaaua Jusd.iction , Counter-Mernoriao lf the United
States,para. 182 and footnote.238 AERIALINCIDENT [236]

The purpose in limitingthe referenceof disputes to this

Court to only those that are"not satisfactorilyadjusted by

diplomacy"is to ensure that the partiesfirst attempt to

resolve matters directly throughdiplornatic discussion. It is

only throughdiplornatic negotiations or discussions of some

kind thatthe respondent State can learn of, and either accept
or reject, the basic legal and factual assertionsof the

cornplainantState. It is the essenceof the conceptof dispute

resolutionthat discussions betweenthe interested States

should preeede the institution of proceedingsbefore the Court

because such discussionsor the adjustment by diplomacyfix the

points of fact and law over which the Parties disagree.

In assessingits jurisdictionunder this sarnetreaty in

United States Di~lornaticand Consular Staffin TW', this
Court found criticalthe fact that the United Stateshad tried

to negotiate with Iran and that Iran had refused to enter into

any discussionof the dispute. In that case. the United5tates

offered to send a formerAttorney Generalof the United States,

~I.c.J., Pp. 3.[237-2381 PREtlMlNARY OBJECTIONS

Mr. Ramsey Clark, to Iran to deliver a message from the

Presidentof the United States to the Ayatollah Khomeini; Mr.

Clark was authorizedto discuss al1 avenues for resolutionof
the crisis. Although the Governmentof Iran initiallyaqreed

to receive Mr. Clark in Tehran, it subsequentlyrefusedto do

so. Shortly thereafter, Tehrar nadio broadcasta message Erom

the Ayatollah Khomeini stating thatno IranianoEficialscould

meet with U.S. officiais. Al1 other efforts by the United
States to make contact were rebuffed as welll. Vnder these

circumstances,the Court stated,"[iln consequence, there

existed at [the dateof theApplication]not only a dispute

but, beyond anydoubt, a 'dispute . . . not sakisfactorily

adjusted by diplornacy'within themeaning of Article XXI,
paragraph 2, of the 1955 Treaty. . . .2..

The circumstancesin this case are just the opposite. Iran

has made no effort to approach the United Stateson this matter

and bas ignored U.S. efforts to discuss compensationfor the

incidentand to pay such compensation. Therefore the Court

should rejectArticle XXI as a basis for its jurisdictionin
this case.

U.S. Mernorial.pp. 24-25. and Consular staff in Tehran

21.c.J. Reports 1980, p. 27. The United States of America requeststhat the Court uphold

the objections of the United Statesto the jurisdiction of the

Court.

4 March 1991

Edwin D. Williamson
Agent of the United States
of Arnerica ANNEX 1

IRANIAN ATTACKS ON INNOCENT SHIPPING

DURING THE IRAN-IRAQ WAR[Il PRELIMINARYOBJECTIONS 243
In the Statement ofFacts, theUnited States notedthat the

Governmentof Iran conducted extensive attacks against innocent

shippingduring the Iran-Iraq war. These ships, which were

travellingon the high seas to and frornnon-Iraqiports, were

almost never stopped and searched by Iran todetermine whether

they were trading withIraq or carrying contrabanddestined for

Iraq. The followingis a descriptionof some of the Iranian
attacks against shipping primarili yn the 18 rnonthspreceding

the incident of 3 July 1988. The Court may also wish to refer

to the reportsof the Secretary Generalpursuant to U.N.

Security CouncilResolution 552 of 1 June 1984 (Exhibit 32).

Section 1. IranianGunboat Attaeks Caused ExtensivD eamage to
Merehant Vessels and the Deaths of NumerousMerchant Seamen.

Iran predominantly attacked merchant vessels by using

smallgunboats, typically equipped with machine gunr s,cket

launchers(including rocket-propelleg drenades), andsmall

arrns. For instance, throughout 1987, Iranian gunboats

conducted extensive, unprovoked attack on ships of various

nations, causing extensive damage and the deathsof numerous

merchant seamen. The more egregiousattacks are as follows. AERIALINCIDENT PI

On 26 February 1987,Iranian gunboats attacked a Chinese

cargo vessel,leaving four crewmen dead1. Off theCoast of the

United Arab Emirates.on 12 March 1987 a Saudi-registered

tanker Arabian was attackedby missiles launched from an

Iranian vessel, while on 28March 1987, the Singapore-

registeredtanker was attackedby what appearedto be an

Iranian gunship using a Seakiller missile;at least seven

seamen were killed2. On 29 March 1987, Iranian gunboats

attacked a Singaporean-registered tankerk ,illing at least
eight crew members3.

On 4 May 1987, an Iranian gunboat fired on a

Panamanian-Elaggedtanker, the petrobulk Reaent, that had left

Kuwait. One member of the tanker'screw was wounded in the

attack4. On 5 May 1987, the Japanese-registere dhuho t3a-uwas

attackedby an Iranian gunboat; the nextday the Soviet cargo

'~xhibit 32, S/16877/Add.5,p.5; "7 Killed in Attack on
Gulf Tanker", Wash. Post, 29Mar. 1987, p. A-21.

3"~raniangunboat attacks tanker in PersianGulf",
rastian Science Monitor, 30Mar. 1987, p. 2.

4"~unboatAttacks Tanker Carrying Kuwaiti Oil", mI.5,
Middle East & South Asia Review, 6 May 1987, p. Cl; Exhibit 32,
S/16877/Add.5,p.6.ship Ivan Korotvve~ was attacked with rockets by Iranian patrol

boats in the southern Persian Gulf,suffering moderate

darnage1. On 11 May 1987, Iranian gunboats attacked the

Kuwaiti-bound, Indian-registered Ambedkar off the coast of

the United Arab I3miratesZ. On 18 May 1987, an Iranian ship

attacked the Liberian-registeredtanker Çolar R m en route to

~uwait~. On 22 May 1987, Iranian revolutionary guard units

attacked and seriously darnagedthe Qatar-registered tanker

Rashidah northwest of I?ahrain4.

On 26 and 30 June 1987 respectively, Iranian gunboats

attacked the Norway-registered Mis mr. and

Kuwait-registered Neraaab5. On 9 and 13 July 1987

'exhibit 32, S/16877/Add.5, p. 6; "Soviet Ship Attacked by
Iran in ~uif, U.S. Says*, -m. 9 May 1987, P. 1-

'"1ran Raids Tanker in the Gulf and gainThreatens
Kuwait", N.Y. Td, 12 May 1987, p. A-8; Exhibit 32,
S/16877/Add.5, p. 7.

3"~ranian Ship Attacks Liberia" Tanker off Kuwait", EUS,
Near East & South Asia Review, 19 May 1987, p. Cl; Exhibit 32,
S/16877/Add.5, p.7.

4"~issiles Hit Qatari Freighter off Bahrain", FIUS, Middle
East & South Asia Review, 22 May 1987, p. Cl; Exhibit 32.
S/16877/Add.5, p.7.246 AERIAL INCIDENT I41

respectively, Iranian gunboats attacked the Liberian-registered

peconic and French-registered Vi11~ m l . By 3 August

1987, the Iranian Navy was conducting "Martyrdom Maneuvers"

which involved training suicide squads to ram warships with

explosive-laden speedboatsZ. On 18 August 1987, two Iranian

gunboats attacked thekiberian-registered psco Sierra outside

the Strait of ~ormuz~.

On 3 September 1987, Iranian gunboats attacked the

Japanese-registered Pisshin with rocket-propelled grenades

and the Italian-registered Jollv Rubiw with bazookas4. On 10

September 1987, Iranian gunboats raked the Cypriot-registered

Hav~aiwith rocket and machine gun On 20 September 1987,

an Iranian speedboat attacked the Saudi-registered tanker

lmq~itShip is Liberian-Owned", mpost, 11 July 1987, p.
A-19; Exhibit 32, S/16877/Add.5, p.8.

2"~.~. Plans to Send Elite Units to Gulf", Wash. U,
5 Aug, 1987, p. A-1; "Iran Concludes Naval Exercises", WashL
m, 8 Aug. 1987, p. A-13 (Exhibit 35).

3"1ran Said to Attack Ship in Gulf of Oman", Wash. Fost,
19 Aug. 1987, p. A-1; Exhibit 32, S/16877/Add.5, p.9.

4"1~an, Iraq Attack More Gulf Ships", wash. Post. 4 Sep.
1987, p. A-1; Exhibit 32, ~/16877/Add.S, pp, 10-11.

5'~ulf Foes Attack on Land and Sea", Wash. Post, 11 Sep.
1987, p. A-27.151 PRELIMINARYOBJECTIONS 247

Petroshi~ R in the Strait of ~ormuzl. On 7 October 1987, an

Iranian speedboat attacked the Saudi-registsred tanker Ehha

krv ~111~. On 14 October 1987, Iranian gunboats attacked

the Liberian-registered tanker Atlantic Peaca off ~ubai~. Iran

used rocket launched grenades to hit the Panamanian-registered

Pros~erventure L off the United Arab Emirates on 23 October
19874. On 23 November 1987, Iranian speedboats attacked the

Romanian-registered cargo ship Fundulea. seriously injuring

three crew members, and the Panamanian-registered container

ship m-~as~~. On 26 Novernber1987, an Iranian speedboat

off Dubai attacked the Romanian oil tanker u6.

l"~rab League Postpones Move Against Iran", -,
21 Sep. 1987, p. A-20; Exhibit 32, S/16877/Add.5, p. 11.

2"~ranian Boat Attacks Saudi Tanker in Dubayy", EUS, 7
Oct. 1987, p. 14; Exhibit 32, S/16877/Add.5, P. 13.

3"~ew Raids by Iran and Iraq are Reported in Gulf".JL.L
u, 15 Oct. 1987, p. A-7; Exhibit 32, S/l6877/Add.5, p.14.

4flY Tiw, Oet. 25, 1987; Exhibit 32, S/16877/Add.5,
p. 14.

5n~ran Strikes Panamanian, RornanianVessels", m. Near
East & South Asia, 24 Nov. 1987, p. 34; Exhibit 32,
S/16877/Add.5, p. 16.

ranian Spendboat Attacks Romanian Tanker", EELS, Near
East & South Asia, 27 Nov. 1987, p. 19. AERIALINCIDENT

In early December 1987, Iraniangunboats hit, set

ablaze, and sank the Singapore-registered Norman At-, and

attacked the Danish-registeredtanker Es,kUg ~aerskl. On 18

Decernber1987, an Iraniangunboat opened Eire on the

Liberian-registered supertanker Fiaudi-r off Dubai and

the Norwegian-registeredtanker BaDDv Kara in the Strait of

~orrnuz~. On 23 December, Itanian gunboats attacked and set

ahlaze the Norwegian-registeredtanker Berae ajg3.

Several nations tooksteps to protect theirshipping.

After the 13 July 1987 attackby Iraniangunboats on the French
container sbip Ville d'Anvers,France broke diplornatic

relations withIran and announcedon 29 July 1987 that the

aircraftcarrier Clemenceau and three support ships were heing

lnlranianSpeedboatsAttack 2 Tankers", p.Y, Ti-, 7 Dec.
1987, p. A.3;,"Iraq reportsmaking hits in Iran and inthe
Gulf", çhrlstian Science Monito~, Il Dec. 1987, p. 2; Exhibit
32, S/16877/Add.5, p. 16.
2"~xanianBoats Attack Norwegian, Saudi Tankers", EUS,
18 Dec. 1987, p. 22; Exhibit 32, S/16877/Add.S, p. 17-18

3"~ranianGunboats Attack NorwegianSupertanker", FU.
24 Dec. 1987, p. 15.FI PRELlMINARY OBJECTIONS 249

dispatched to the Gulf area1. AÉter the 3 september 1987

attack on the Italian cargo ship a, Italy announced

that it would send ships to the Gulf to prorect Italian

rnerchantmen2. On 3 October 1987, Iran launched about 60 armed

speedboats, apparently at the Saudi Arabian offshore oilfield

at Khafji. Saudi Arabia sent jets and warships to intercept

these gunboats and turn them back. No gunfire was exchanged3

Section II. Iranian Naval Mines Damaged NurnerousVessels and
Prompted the Deplayment of Minesweepers and Sealane
Surveillance Forces to the Gulf.

Iran also without notice seeded mines on the high seas and

in international shippingchannels to threaten and damage

shipping. On 17 May 1987, a Soviet-registeredtanker leased to

Kuwait, the Chuvkov, suffered mine damage as it

approached ~uwait*. By 16 June 1987, Iran was reportedly

'"~rench Ship is Attacked in GulE, Raising Paris-Teheran
Tensions", N.Y. Tm, 14 Jul. 1987, p. A-6; "Mine-Hunter
Helicopters Sent to GulE", Wash, Post,
30 Jul. 1987, p. A-1.

'"1ran Fires Missile at Kuwait", Wash.Post, 5 Sep. 1987.
p. A-1 (Exhibit 35).

3"~audis Turn Back Iranian Flotilla Near Oil Terminal",
m. Post, 4 Oct. 1987, p. A-1 (Exhibit 35).

4-~raqi Missile Hits U.S. Navy Frigate in Persian Gulf",
N.Y. Tm, 18May 1987, p. A-1 (Exhibit 35); Exhibit 32,
S/16877/Add.5, p. 7.250 AERIALINCIDENT 1x1

On
mining approachesto Kuwait'sAl-Ahmadi oil terminal1.
24 July 1987, the Bridaeton, a Kuwait-ownedU.S.-flaggedtanker

under U.S. military escortinto the Gulf, hit a mine about 18

miles west of the Iranian island of ~arsi~. Consequently,the

United States orderedU.S. Navy rninesweepinghelicoptersto the

~ulf~. Other nations followedsuit. On Il August 1987,the

United Kingdom and France announcedthat they would send

minesweepersto the ~ulf~. In Septernber, Belgiurn,the
Netherlands.and Italy announcedthat they also woulddispatch

rninesweepers to the ~ulf~.

ln~hat'sNews", Street Jourd, 17 June 1987, p.1.
'"~fter the Blast, Journey Continues", P.Y. Tm, 25 July
1987, p.5 (Exhibit 35).

3"~.~. Acts to BolsterGulf Mine Defenseson Several
Fronts",ml Street Journal, 4 Aug. 1987, p.1; "8 U.S.
HelicoptersArrive for Mission ta Sweep the Gulf," mTimesi
17 Aug. 1987, p. A-1 (Exhibit 35); "U.S.Orders 8 Old
Minesweepers to the Gulf", N.Y. Times, 20 Aug. 1987, p. A-1
(Exhibit 35).

4"~uropeansSend Mine Sweepers", m. Post, 12 Aug. 1987,
p. A-1 (Exhibit 35).

5"~utchSending 2 Ships to Hunt Mines in Gulf", N.Y. ThESt
8 Sep, 1987, p. A-3; "Ferez de Cuellar'sGulf Trip Ends in
Apparent Failure", m. Post, 16 Sep. 1987,p. A-l (Exhibit
35).[91 PRELIMINARY OBJECTIONS 251

Unfortunately, the mines continuet do inflict damage

indiscriminatelyto vessels. On 10 August 1987, the

U.S.-owned,Panama-registered tanker TexacoCaribbe~ struck a

mine off Fujaira, south of the Horrnuzpeninsulal. On 22

September 1987, the Panamanian-registereM d arissa survey ship
sank after hitting a mine north of Bahrain; fourof its seven

crewmen were believeddead2.

Although at times Iran deniedthat it was the sourceof

these mines, in a Tehran radio dispatchon 20 August 1987, Iran

admitted that it had mined the Gulf, purporteelyto "protectn

its coastline3. Any douhts as to the origin of these mines

were put to rest when, on 21 September 1987, U.S. helicopters

iàentified an Iranian ship, themn A~L, plantingmines in

international waters of thG eulf. The ship was incapacitated

lnlran Says it Mines theGulf", Wash. Post, 21 Aug. 1987,
p. A-l (Exhibit 35); Exhibit 32, S/16877/Add.5, p. 9.

'.u.s. ArrangesReturn of 26 IranianSailors", Bsh. Post,
25 Sep. 1987, p. A-1.

3u'~ran Says it Mines theGulf", Wash. Post, 21 Aug. 1987,
p. A-1 (Exhibit 35).252 AERIALINCIDENT [1°]

by the helicoptersand then boarded by the U.S. Navy. Ten

mines being readied for deployment in shipping channels were
found on board the lran-P&'. Within days, IranianPresident

Seyed Ali Khamenei declared to the United Nations General

Assembly that "the United Stateswill receive a proper response

to this abominable act2."

Section XII. In Additionto Gunboat Attacks and the Laying of
Naval Mines, Iran Launched Silkworm Missiles Against Kuwait
Shipping and Shore Facilities.

Along with itsuse of gunboats and mines, Iran constructed
missile sitesand launched Silkworm missiles to disrupt

shipping ofoil. On 4 September 1987, Iran fired a Silkworm

missile Erom the Faw Peninsula toward Kuwait; the missilheit

an uninhabitedbeach areatwo miles south of an oil loading

'"u.s. HelicoptersHit IranianNavy Ship in PersianGulf",
Wash. Posk, 22 Sep. 1987, p. A-1; "U.S. ReportsFiring on
Iranian Vessel Seen Laying Minesw,P.Y. Tlrnes,22 Sep. 1987,
p. A-1 & "26 IraniansSeized with Mine Vessel; More U.S.
Shooting", P.Y. Times, 23 Sep. 1987, p. A-1.

'~ddress by the Presidentof the IslamicRepublic of Iran,
Seyed Ali Khamenei, to the United Nations General Assembly,
22 Sep. 1987, A/42/PV.6. [Ill PRELlMlNARY OBJECTIONS 253

terminal1. On 15 October 1987, however, an Iranian Silkworm

missile fired frornthe Faw peninsulahit the U.S.-owned,

Liberian-flaggedoil tanker mgj, anchoredoff Kuwait'sMina

al-Ahmadiport in Kuwaiti territorial waters. There were no

casualties2. The next day anotherIranian Silkworm missilehit

the Sea Isle City, a Kuwait-owned,U.S.-registeredtanker also

anchoredoff Mina al-Ahmadi. Eighteen seamen, includingthe
U.S. captain, were injured3. On 22 Octoher 1987, an Iranian

'"Iran Fires Missile at Kuwait", Wash-, 5 Sep. 1987.
p. A-1 (Exhibit 35).

2n~ranHits U.S.-OwnedTankerm d , 16 Oct. 1987,
p. A-1 (Exhibit 35); Exhibit 32, 1 p, 14.

3''~~ Head Told of Attack", m, Middle East & South Asia
Review, 19 Oct. 1987, p. 17. In responseto Iraq'sunlawful
use of force against shipping -- especiallyits October 16
Silkworm attack -- four U.S. destroyerson October 19. 1987.
destroyed an inactiveIranian oil platformused as a base for
Iranian speedboatattacks against Gulf ships. The U.S. Navy
gave the Iranian occupants of the oil platform 20 minutes to
evacuatebefore shelling the platform,which was sorne100 miles
south of Lavan Island. "U.S. DestroyersShell IranianMilitary
Platform in GulfR, Wash. Post, 20 Oct. 1987, p. A-1.254 AERIAL INCIDENT

Silkworrnmissile hit Kuwait's Sea Islandterminal1

Section IV. The Most Damaging of Iran'sAttacks Against
ShippingWere Attaeksby IranianFighter Aircraft, Which
Resulted in Notices by the United StatesThat Al1 Aircraft for
Their Own Safety ShouldAvoid Approaching MilftaryVessels.

Although most of Iran's attacks against merchant shipping

were through use of small boats, therehad been very damaging

attacks aswell hy Iranianmilitary aircraft, particularly

during 1984-1986. Iranian fighter aircraftconducted a

rnajorityof these attacks using Maverick missilesand iron

bombs2. Maverick missilescan be launched£rom ranges of 0.5
to 13 nautical miles and aretelevisionguided. The launching

aircraft must beable to keep visual track of the target, but

does not have to scan its target with radar3. For example, on

2 February 1988, two Iranian F-4s launched twoMaverick

missiles at the Liberiantanker Petrobulk pilot about 30

nauticalmiles south-southwestof the area where the incident

1987,"~p.kA-1.Hits Kuwaiti Oil Terminal",Wh. Post, 23 Oct.

2~xhibit 9, Appendix E, p. E-12.

3 ~ .113] PRELIMINARYOBJECTlONS 255

of 3 July 1988 took place1. In additionto Maverick missiles,
military forcesin the Gulf knew that aircraft,including

Iranian F-14s. could be configuredto drop iron bombson naval

vessels if they could approach within two nautical milo es the

target2.

Section V. IranianAttacks on Innocent Shipping Continue into
1988.
Iranian gunboats attacked the Norwegian tanke Jaloo ESDOQ

on 15 January 1988,near the Strait of ~ormuz~. Agence

France-Pressereporteda 15 January 1988, Iranian attack on a

Norwegian tanker,and 16January attacks on the Liberian-

reqiatered AtlanticChari= and Liberian-registered ~ainbpw~.

On 21 January, Iran attackedthe Norwegian-ownedHafvel in

lwlran Tries Aerial Attackon Cargo Ship in Gulf",
istian Sciwm, 3 Feb. 1988, p. 2 (Exhibit 35);
Exhibit 9, Appendix E, p. E-10.

2~xhibit 9, Appendix E, p. E-12.

3"~ranianGunboats Attack Norwegian Tanker", Near
East b South Asia, 15 Jan. 1988, p. 20.

4"~ran-~raq War", m. Neai East & South Asia, 19 Jan.
1988, p. 2.256 AERIAL INCIDENT 1141

the Strait of Hormuz and set ablaze the Panamanian m. Iran

asserted that its attack on the BaP~elwas a miçtakel. Iranian

gunboats on 23 January 1988, attackedthe ernptyDanish-flagged

Torm ~otna~. On 3 February 1988, Iraniangunboats hit and set

ablaze a Norwegian freighter approximately ten nautical miles

£rom the United ArabEmirates port of ~l-sharigah3. On 5

February 1988, Iranian gunboats attackedthe
Panamanian-registered Tavistock near ~ubai~. On

7 February 1988, the U.S.-owned,Liberian-registered Diane was

set ablaze in an attack by gunboats off the coast of the United

Arab ~rnirates~.On 10 February 1988,an Iranian speedboat

'"PanamanianTanker Attacked" & "Reportageon Iranian
198.8.p. 19.il Tankers", m. Near East &South Asia, 22Jan.

2n~wo Ships Attacked in Gulf; fraqi General Dies in Crash",
Wash., 24 Jan. 1988, p. A-24.

3''~ranianSpeedboats Attack Noregian Ship", EUS, Near
East & South Asia, 3 Feb. 1988, p. 18.

4"~ranianBoats Attack Tanker Off Dubayy", m. Near
East & SouthAsia, 5 Feb. 1988, p. 27.

5"~ranianGunboats AttackU.S.-OwnedTanker",68LS, Near
East & South Asia, 8 Feb. 1988, p. 20.1151 PRELIMINARYOBJECTIONS

attacked a Liberian tanker1.

On 12 February,Iranianmilitary units fired.on U.S.

helicopterson reconnaisance over a Kuwaiti convoya. On

7 March 1988, U.S. helicopterson reconaissanceflights came
under machine-gun£ire Erom an oil platformand several boats

in the central ~ulf~.

In March 1988, Iranian gunboats attackedNorway's tanker

Beroe Lord,Liberia's m, Spain's Derian Reefe~,and Cyprus'

tanker Odvsseus in the Strait of Hormuz, as well as Norway's

l"1ran-1raqWar", m, Middle East & South Asia Review,
11 Feb, 1988, p. 1.

2*1~.~.nelicoptersFired on From Oil Platforms",EU5. Near
East & South Asia, 16 Feb. 1988, p. 60.

3"~hat'sNews" (U.S. HelicoptersDrew Machine-gunFire in
the Central PersianGulf), Wai1 Street Journal, 7 Mar. 1988, p.
1; "U.S. Helicopters CorneUnder Fire in the Gulf", N.Y. Tirna,
7 Mar. 1988, p. A-5.258 AERIAL INCIDENT 1161

Hukumit 12 miles off theDubai coast (killingtwo crewmen),

Liberia's Atlantic PeacP near Sharja, and the Singapore-
registeredNeptune Subarul.

In May and June of 1988, Iraniangunboats in the Strait of

Hormuz attacked the Japanese -; the Norwegian-owned

Berae Strand; the Liberian -O Gas Rip; the West German

phaulaairi;and a U.S.-owned,British-registeredsupertanker2.

1-3 Tankers Hit hy Gunboats",IF', Near East & South Asia,
18 Mar. 1988, p. 56; "NorwegianTanker Attached*, EUS, Near
East 6 South Asia, 23 Mar. 1988, p. 17; "54 Feared Dead on 2
Oil Tankers in fraqi Attack on Iran Terminal",N.Y. Times,
22 Mar. 1988, p. A-1; "Liberian Oil Tanker Attacked", m.
Near East 6 South Asia, 22 Mar. 1988, p. 1 & 67; "Iranians Hit
Cypriot Ship", Ur Near East b South Asia, 24 Mar. 1988,
p. 33; "IranianGunboats Hit Liberian Tanker in Gulf*, W,
Near East h South Asia, 28 Mar. 1988, p. 17.

2"SpeedboatsAttack Japanese ChernicalTanker," ILIUS, Near
East & South Asia, 19 May 1988, p. 11; "TeheranClaims Gains in
NortheasternIraq", N.Y. Tw, 19 May 1988, p. A-11; "Iranian
Boats Attack Tank.rn,.I.Y. Tw , 20 May 1988, p. A-3; "Iranian
Speedboats",Çhrlstian Science m. 27 May 1988, p. 2;
"Reportageon Iranian Gunboat Attackson Tanker", U, Near
East 6 South Asia, 27 May 1988, p. 14; "UK Supertanker~ttacked
Near Saudi Port 11 Jun", m. Near East b South Asia, 13 Jun.
1988, p. 69; "IranianGunboats Launch Attacks on Freighters",
m, Near East & South Asia, 14 Jun. 1988, p. 16.1\71 PRELIMINARYOBJECTlONS 259

Section VI. Efforts by the United Nations to End the Gulf War
Were Unsuccessful.
Efforts inthe United Nations to end the attackson

merchant shipping wete unsuccessful. On 20 July 1987,the U.N.

Security Council,acting under Chapter VI1 of the U.N. Charter,

passed unanimouslyResolution 598 calling for a cease-£irein

the Iran-IraqWar and calling for further meetingsif the two

States did not comply with the resolutionl. On 12 November

1987, resolutionsat the Arab Leaguesummitmeeting in Aman,

Jordan, stated that the Arab countries condemnedIran for
attackingKuwait and condemned Iran's interferencein the

interna1 affairs of the Arab gulf states2.

As a result of the United States' effortsto pzotect its

vessels in the Gulf, Iran repeatedly charged (as it aoes in its

Mernorial)that theUnited States was not a neutral in the

Iran-Iraq war3, The United States certainlyworked to bring

~u.N. Security council Res~luti~n 598 of ~uïy 20, 1987
(S/RES/598); "U.S.Warships Setto Begin Escortsof Gulf
Tankers",P.Y. Ti=, 22 Jul+ 1987, p. A-2. Iraq respondedto
the Resolution as"positive" whileIran called it "nul1 and
void". "Iraq is Warm to Truce Call; Iran is Harsh", LL
m. 22 Jul. 1987, p. A-20.

2"~ulfConflict", m, Near East & South Asia,12 Nov.
1987, p. 2; "Arab Summit Conference", m, Near East & South
Rsia, 13 Nov. 1987, p. 1.

3~ranianMernorial,paras. 1.36-1.45.260 AERIAL INCIDENT

the war to a negotiated end,leavingneither victor nor
vanquished,but any concerted U.S. pressureon Iran reflected

Iran's intransigenceto negotiate with Iraqdespite Security

Council Resolution 598, and not an attempt by the United States

to intervenein the wax on behalf of lraql.

l~he United States position wasthat the Security Council
should impose an arms embargo on either Iranor Iraq,whichever
failed to cornplywith Resolution 598. See "U.S. Policy in the
Persian Gulf", pe. çiI., Exhibit 36, pp. 3-4. Even Mernbers of
the Arab Gulf Cooperation Council urged the imposition of
sanctions against Iran for its aggressivetactics in the Gulf.
"Arab Nations on Gulf Urge Sanctions Against Iran", LL
w, 30 Dec. 1987, p. A-3. ANNEX 2

U.S. ISSUANCE OF NOTAMS REGARDING AIRCRAFT

IN THE GULF AREALi] PRELlMINARYOBJECTIONS 263
Out of concernfor thesafety of its vessels,and the need

£or those vessels to respondto perceivedthreats,the United

States in early 1984 wished to informcivil aircraftin the

Gulf about U.S. defensiveprecautions withrespectto air

attacks. Annea 15 of the Chicago Convention provides that

originationof civil Noticesto Airmen (NOTAM) is the
responsibilityof the State which exercisesair traffic service

authorityover the affectedareal. Consequently, in January

1984, the U.S. Federal Aviation Administrationi ,n cornpliance

with Annex 15,provided the proposeda Special Noticeto States

controlling Flight InformationRegions in the affectedareas,

so that they theycould issue an appropriateNOTAM'. The

'chiCagoConvention, Annex 15, ParaS. 3.1.1.1, 3.1.2.
3.1.4, and 5.1.1.1 (Exhibit 5).

'u.s. Special Notice of Information,Jan. 1984 (Exhibit
85). The designation"KDCAYN"in this notice representsthe
V.S. Federal Aviation Administration InternationN altice to
represents the Central Notict.eo Airmen Facility,CarswelLAir
Force Base,Ft. Worth Texas. The designation "SVC" represents
the term "service message" which distinguishes tnhoetice £rom
a notice to airmen.264 AERIAL INCIDENT PI

Special Notice stated that U.S. naval vessels in the Persian

Gulf, Strait of Hormuz, Gulf of Oman, and Arabian Sea (north of

20 degcees north) were taking defensive precautions. The

Special Notice stated that aircraft approaching within Five

nautical miles of U.S. vessels should establish and maintain

contact with the U.S. vessels on either the internationalcivil

air distress Frequency (121.5 MHz VHF) or the international

military air distress frequency (243.0 MHz UHF)~.

Under Annexes 11 and 15 of the Chicago Convention, the

aeronautical information serviceof each State should obtain
and publish (in the Form of NOTAMS and other publications)

critical information that they receive concerning the safety of

civil aviation in their territories, as well as areas over

which they have responsibility2. The Government of Iran,

however, objected to this Special Notice and in February 1984

sent messages to al1 States in the region denouncing the

~u.s. Special Notice, Jan. 1984, Q.Q.a., Exhibit 85.

2h Chicago Convention. Annex 11, para. 2.15.3 (Exhibit
4); Chicago Convention, Annex 15, paras. 3.1.4 and 5.1.1.1
(Exhibit 5).i31 PRELIMINARY OBJECTIONS 265

Special Noticeas illegall. Further. Iran lodged a cornplaint
at the ICA0 Middle East RegionalAir Navigationmeeting in

March 1984urging thatsteps be taken in responseto the

Special ~otice~. The Gulf Statesdid not publish the special

notice provided by the United States.

Faced with the factthat Iran did not intend to comply with

its obligation under the Chicago Convention annexes to

promulgate this safety information and thatIran was actively

denouncingit as illegal to other States in the region, the
United States felt compellet do publish the Special Notice as a

U.S. international civil NOTAM~. Followingthe USS Stark

l~oticefrom the Civil Aviation Organizatio nf Iran,
27 Feb. 1984 (Exhibit 86).

2"~estrictionsIrnposedin the Airspace over theHigh Seas
presentedby Iran to theteThird MiddleSEastsRegionalAir Region,"
NavigationMeeting and U.S. Amendment. Working Papers, Third
Middle East RegionalAir NavigationMeeting (Mar. - Apr. 1984),
ICA0 Docs. MID/3-WP/108, MID/3-WP/77 (Exhibit87).

3~~~~ Report, para. 2.2.2. International Civil Notice to
Airmen, 11 Jan. 1985 (Exhibit 88). The designation "KFDC"in
this notice showsthat the originatingagency of the NOTAM is
Washington,D.C. The designation "A0002/85"is the
international NOTAMidentifiernumber.266 AERIAL INCIDENT Pl

incident,in which an Iraqi militaryaircraftattacked a U.S.

naval vesse1 and killed 37crewmen, the United Statesupdated
its NOTAM~.
The NOTAM was Eurtherupdated inSeptember 1987~.
The NOTAM was current on 3 July 19~8~. The NOTAM and its

updates were distributed to States on the distribution list for

NOTAMs issuedby the United Statesand throughofficialcivil

and rnilitarychannels, as well as through the U.S. Embassies in

the area4.

(Exhibita88).nternational Civil Notice to Airmen, 19 Aug. 1987

2~pdatedNotices toAirrnen, 8 and 9 Sep. 1987 (Exhibit 88).

3~~~~ Report, para. 2.2.2; ICAO Report, ~ppendix F, p. F-4.

4~~~~ Report, para. 2.2.3. The United Statestransmitted
the updatesto U.S. Embassiesin the Gulf for hand delivery to
the civil aviation authoritiesof the hostcountrieswith
responsibilityfor the affectedareas, with a requestthat they
publish it. By using U.S. Embassy channels the United States
could verify receipt of thenotice and lend emphasisand
urgency to the need for the appropriate States to publish the
notice. As a result oE these efforts, Iranagain complainedto
ICAO about the matter in September 1987. Telex dated 14 Sep.
1987 £rom IranianCivil AviationOrganizationto ICAO CounciI
President (Exhibit 8.9).[SI PRELIMINARY OBJECTIONS 267
Iran argues that the promulgationof these NOTAMs was not

in conformity with the provisiono sf Annex 15, but neglects to

note that Iran's refusalto publish such critical information

is inconsistentwith Annexes 11 and 15l, and that Iran's

objection to the SpecialNotice discouraged other Statef srom

publishingit. Although it would havebeen more appropriate

for Iran to disseminate such information,under the

circumstancesit was a reasonable. appropriate, and necessary

step taken by the United Statessince Iran refused to comply

with its responsibilityto warn the civil aviation public of
the potentialdanger inoverflying U.S. naval vessels in the

Gulf. Further, Annex15 does not state that other countries

are prohibited £rom issuing an theirown such information by

NOTAm or atherwise.

Iran'ssuggestionthat increaseddangers to civil air

traffic in the Gulf was attributableto U.S. naval activities

is incorrect2. Attacks by both Iran and Iraq inthe Gulf

lsee Footnote 4 of this Annex. suPra.
2~rancomplainedto ICAO about an incidentthat aliegedly
occurred on 26 May 1987 involving U.S. naval aircraft. The
U.S. Navy, however,did not have any fighter aircraftin the
Gulf on that day, nor any recordof a radio transmission
tellinq an aircraftnot to proceed on course, ICA0 took no
action in this matter.268 AER~ALINCIDENT FI

created the climateof danger, in partdue to the establishment

and realignmentof some Air Traffic Service (ATS) routes at

variance withthe ICAO regionalair navigation Yet most

important, countriessuch as Iran failed to establishand

maintainclose cooperation with foreign military authoriti ins

the Gulf responsiblefor activitiesthat could affect civil
aircraft2.

l~etter of ICAO PreaidentKotaite,Working Paper, ICAO
Council (extra.sess., July 1988). ICAO Doc. C-WP/8642,
Appendix B (Exhibit12).
'Under Chicago Convention, Annex 11, para. 2.14.1,ATS
authorities are supposed to establishand maintainclose
cooperation with military authorities responsib for
activitiesthat may affect flightsof civil aircraft. Indeed,
arrangements are to be made to permit informationrelevantto
the safe and expeditious conductof flightsof civil aircraft
to be promptly exchanged between ATS unit and appropriate
military units. Chicago Convention, Annex 11, para. 2.14.3
(Exhibit 4). Similarly,the appropriateATS authorities are
obliged to initiatethe promulgationof informationregarding
military activitiesthat thatare potentially hazardous to
civil aircraft. W., para. 2.15.3. The objectiveof such
CO-ordinationis to achieve the best arrangementswhich will
avoid hazards to civil aircraftand minimize interference with
States had sought to establish guidelinesfor the safe United
interactionof civil aircraftwith U.S. military forces,Iran's
only effortsin this areaconsistedof denouncing the United
States' efforts.[71 PRELIMINARY OBJECTIONS 269

After extensive consultatianswith the affected states, on

1 March 1989, the United States withdrewthe NOTAM it had

issued for the Gulf and again asked regional States to issue

the NOTAM themselves. This tintevirtually al1 the Gulf States

(including Iran) issued NOTAMs pursuant to the U.S. request. TABLE OF EXHIBITS '

Pursuant to Article 50 of the Rules of Court, the United
connection with these Preliminary Objections.the RThe documentsso
deposited are noted below.

1. Convention on International Civil Aviation of 1944 (the
"ChicagoConvention").

2. Annex 6 to the Chicago Convention(excerpts).

3. Annex 10 to the Chicago Convention(excerpts)
4. Annex 11 to the Chicago Convention(excerpts).

5. Annex 15 to the Chicago Convention(excerpts).

6. Rules for theSettlernent of Differences, ICAODocument
7782/2 (1975) (the "Rules").

7. Convention forthe Suppressionof UnlawfulActs Against
the Safetyof Civil Aviationof 1971 (the "Montreal
Convention").
8. Treaty of Amity, EconomicRelations and Consular Rights of
1955 between the UnitedStates and Iran.

9. Working Paper (11November 1988)) ICAO DocumentC-WP/8708,
restricted.

Report of ICAO Fact-Finding Investigation (Novernber19881,
ICA0 DocumentC-WP/8708,restricted, Appendix(the "ICAO
Report").
10. Letter dated 4 July 1988 frornICAO Council Presidentto
ICAO Council Representatives, ICAO Documen PRES AK/16S
(with attachments) .

11. Letter dated 5 July 1988 from ICAO Council President to
ICAO Council Representatives, ICAO Documen PRES AK/166.

12. Working Papers, ICAO Council (extraordinary session,July
1988), ICAO DocumentsC-WP/8643,Appendix Bi C-WP/8644
(with attachments).

13. 1988), ICAO Document DRAFTC-Min. EXTRAORDINARY(1988)/1.

14. Minutes, ICAO Council (extraordinars yession,14 July
1988), ICAO Document DRAFT C-Min. EXTRAORDINARY(1988)/2.

'~ot reproduceN.ote bthRegi~lry.1 AERIAL INCIDENT

Minutes, ICAO Council (125th session, 5 December 1988,
closed), ICAO Document DRAFT C-Min. 125/12,

Minutes, ICAO Council (125thsession, 7 December 1988,
closed), ICAO DocumentDRAFT C-Min. 125/13.

Minutes, ICAO Council (125thsession,7 December 1900,
closed), ICAO DocUment DRAFT C-Min. 125/14.
Minutes, ICA0 Council (125thsession, 14 December1988),
ICAO DocumentDRAFT C-Min. 12S/LB.

Minutes, ICAO Council (126thsession, 13 March 1989), ICAO
Document DRAFT C-Min. 126/18.

Minutes, ICAO Council (126th session, 15 March 1989), ICAO
Document DRAFT C-Min. 126/19.

Minutes, ICAO Council (126thsession, 17 March 1989), ICAO
Document DRAFT C-Min. 126/20.

Summary, ICAO Council (126thsession, 17 March 19091, ICAO
Document C-DEC126120.
Minutes, ICAO Air Navigation Commission(2 February 1989),
ICAO DocumentAN. Min. 120-6.

Minutes, ICAO Air NavigationCommission (7 February19891,
ICAO DocumentAN, Min. 120-7.

Minutes, ICAOAir NavigationCommission (9February 1989),
ICAO DocumentAN. Min. 120-8.

Letter dated 26 May 1989£rom Dr. Michael Milde, ICAO
Legal Bureau Director,to the Court.

"IranianAirbus Tragedy",Departmentof State Bulletin,
pp. 38-43 (September1988).
Letter dated 3 July ,1988from theActing Permanent
Representativeof the Islamic Republic of Iran to the
United Nations Addressedto the Secretary-General,United
Nations Document S/19979.

Letter dated 6 July 1988 fromthe Acting Permanent
Representativeof the UnitedStates of America to the
United Nations Addressed to the Presidentof the Security
Council,United Nations Document S/19989.

Resolution 616,United NationsSecurity Council (2821st
meeting, 20 July 1988), United Nations Document S/RES/616. TABLE OF EXHIBITS 273

29. United StatesCable dated 31 August 1988 £rom Washington,
D.C. to UnitedStates Embassy, Berne, Switzerland.

United States Cable dated 2 September1988 Erom United
States Ernbassy,Berne, Switzerland toWashington, D.C.

United StatesCable dated 6 September 1988 £rom United
States Embassy,Berne, Switzerland to Washington,D.C.

United StatesCable dated 23 September 1988£rom
Washington,D.C. to United StatesEmbassy, Berne,
Switzerland.

United States Cable dated 26 Septernber1988 from United
States Embassy, Berne, Switzerland to Washington, D.C.
United States Cable dated 8February 1989 from United
States Embassy, Berne, Switzerlandto Washington, D.C.
(with attachments).

United StatesCable dated 30March 1988 £rom Washington,
D.C. to United States Embassy. ,Berne,Switzerland.

United States Cable dated 31 March 1988 fromWashington,
D.C. to United States Embassy, Berne, Switzerland.

DiplomaticNote 43 dated 16 April 1989 £rom Embassy of
Switzerlandin Iran to the IranianMinistry of Foreign
Affairs.

United States DiplornaticNote dated 13 June 1989 to
Governmentof Switzerland(with attachments).

United States.e dated 26 June 1989 fromSwitzerlandto the

United StatesDiplornatic Note dated 11 July 1989 to
Government of Switzerland(with attachments).

DiplomaticNote dated 12 July 1989 from Embassyof
Switzerland in Iran to the Governmentof Iran.

30. Departmentof State Daily PressBriefing, pp. 1-4 (17 July
198s).

31. Resolution 479, United Nations Security Council (2248th
meeting, 28 Septernber1980), reprintedin United Nations
DocumentS/INP/36, p. 23.

Resolution 514, United NationsSecurity Council (2383rd
meeting, 12 July 1982), United Nations Document S/RES/514.

Resolution 522, United Nations Security Council(2399th
meeting, 4 October 1982). United Nations Document
S/RES/522. AERIAL INCIDENT

Resolution 540, United Nations Security Counc( il493rd
meeting, 31 October 1983), United Nations Document
S/RES/540.

Resolution552, UnitedNations Security Council (2546th
meeting, 1June 1984). United Nations Document S/RES/552.

meeting, 24 Februarye1986), United Nations Document66th
S/RES/562.

Resolution588, United Nations Security Council (2713th
meeting, 8 October 1986)) reprintedin United Nations
Document S/INF/42,p. 13.

Resolution598. United NationsSecurity Couneil (2750th
meeting, 20 July 1987), United Nations Document S/RES/598.

Report of the Secretary-Generalin Pursuanceof Security
Council Resolution552 (1984),United Nations Document.
S/16877 (with addenda).
Letter dated 9 October1987 from thePermanent
Representativeof the United Statesof Arnericato the
United Nations Addressed to the Presidentof the Security
Council, United Nations Document S/19194.

Letter dated 10 October 1987£rom President Reaganto the
President Pro Tempore of the Senate and the Speakerof the
House, Weekly Compilationof PresidentialDocuments (1987).

Letter dated 18 April 1988 from the Acting Permanent
Representativeof the United States of America to the
United Nations Addressed to the Presidentof the Secvrity
Council, United Nations DocumenS t/19791.
Newspaper articles, 1981-1989 (in chronologico alder)

"U.S. Policy in the PersianGulf", SpecialReport No. 166,
United StatesDepartmentof State (July 1987).

P. DeForth, "U.S. Naval Presencein the Gulf: The Mideast
Force Since World War II",Naval War Colleae Review, pp.
28-38 (Sumrner1975).

R. O'Rourke, "GulE Ops", Naval Review Proceedinas , PP,
42-50 (1989).

Proceedings,pp.he71-79nn(1989).dent", hxal ~eview

D. Carlson, "Commentand Discussion",Proceedinqs,pp.
87-92 (September1989). TABLE OF EXHIBITS

Rule 15 of the Standing Rules of Procedure of the ICAO
Assembly, ICAO Document 7600/5.

Documents, ICAO Legal Committee (18th session, September -
Document198936,ICVolume 2, p. 16., reprinted in ICAO

Minutes and Documents, International Conference on Air Law
(September 1971). ICAO Document 9081, pp. 1-2, 134.

Action of the ICA0 Council (78th session, January - March
1973). ICAO Document 9079, pp. 11-13.

Minutes, ICAO Assembly (19th session - extraordinary,
February - March 19731, ICAO Document 9061, pp. 11, 35,
40-44.
[A complete copy of this document has been deposited in
the Registry.]

Action of the ICAO Council (79th session, May - June
1973), ICAO Document 9097, pp. 30-34.

Minutes, ICAO Council (79th session, June 1973, closed},
ICAO DocumenE 9073, pp. 27-28, 56.
[A complete copy of this document has been deposited in
the Registry.]

Resolutions and Plenary Minutes, ICAO Assembly (20th
session - extraordinary, August - September 1973), ICAO
Document 9087, pp. 14, 122-143,

Working Papers, ICAO Assernbly (20th session -
extraordinary, August - September 1973), ICAO Document;s
AZO-WP/2, pp, 1, 9-15; A20-WP/3; A20-WP/4; AZO-WP/14;
A20-WP/15; A20-WP/30.
Reports and Minutes of the Executive Committee, ICAO
Assembly (20th session - extraordinary, August - September
1973), ICAO Document 9088, pp. 7-9, 34, 41, 59-64, 110.
117-119, 131-133, 141, 143-146.
[A complete copy of this document has been deposited in
the Registry.]

Minutes and Documents, ICAO International Conference on
Air Law (August - September 1973), ICAO Document 9225, pp.
98, 100-101, 143, 147, 156, 341-343, 367-380.
[A complete copy of this document has been deposited in
the Registry.]

Action of the ICAO Council (extraordinary and 80th
sessions, August, October - Decernber 1973), ICAO Document
9098, pp, 56-58. AERIAL INCIDENT

Reports and Minutes, Executive CommitteeI ,CAO Assembly
(24th session,September - October 1983), ICAO Document
9409, pp. 10-15.

Minutes, ICAO Assembly (24th session, September - October
1983), ICAO Document 9415, pp. 160-167.

Minutes, ICAO Council (extraordinary session, September
1983). ICAO Document9416, pp. 10, 14-15, 17, 21, 23, 29,
31, 36, 38, 53-56, 59-60.
the Registry.]y oE this documenthas beendeposited in

Working Paper, ICAO Council (extraordinary session,
September 1983), ICAO DocumentC-WP/7694.

Action of the ICAO Council (110thand extraordinary
sessions,Septernber, October - December 1983), ICAO
Document 9428, pp. 20-28.

Minutes, ICAO Council (111th session, February - March
1984). ICAO Document9441, pp. 85, 90, 102, 106.
[A completecopy of this document has been depositei dn
the Registry.]

Action of the ICAO Council(111thsession,February -
March 1984). ICAO Document9442, pp. 9-11.
Reports and Minutes, ExecutivC eommittee,ICAO Assembly
(25th session - extraordinary, April - May 1984}, ICAO
Document 9438, pp. 3, 19, 22, 30, 36, 44-45, 47, 61, 75
[A complete copy of this document has been deposited in
the Registry.]

Protocol Relatingto an Amendmentto the Conventionon
InternationalCivil Aviation, signedat Montreal on 10 May
1984, ICAO Document 9436.

S. Rosenne,fie Lawmd Practlceof the International
m. p. 580 (1985).

Report of the Sixth Committee, UNGA (25th sess.,Dec.
1970), U.N. Doc. A/8238, p. 19.
Report oE the Sixth Committee, UNGA (26th sess., Dec.
1971), U.N. Doc. A/8568, p. 21.

E. Jimenez de Arechaga, "The Amendmentsto the Rules of
Procedureof the International Courtof Justice", 67
mesican Journal of InternatlonalLay, pp. 1, 11-13 (1973).

G. Guyomar, mentaire du Realementde la Cour
Internatue de Justice - Interoretationet Pratiaue, p.
371 (1972) (withEnglish translation). TABLEOF EXHIBITS 277

M. Milde, "DisputeSettlementin the Frameworkof the
InternationalCivil Aviation Organization",Sett-
S~ace Law m, pp. 87. 90 (1980).

N.M. Matte, Treatise on Air-AeronauticalLa, pp. 205-208
(1981).

R. Gariepy and D. Botsford, "The Effectivenessof the
International Civil Aviation Oraanization'sAdiudicatorv
Machinery",42 Journalof Air Law and Commw, pp. 351;
356-359 (1976).
ICAO,m~ertorv - Guide -the Convmtion on Inte-
Çivll Aviation, ICAO Document 8900/2 (secondedition),
Article 84, pp. 1-4 (1977).

T. Buergenthal:Law-Makina in the ~nternationalC ivi1
vlation Or~a-, pp. 123-197 (1969).

Bin Cheng, The La w d International Alr Transvort , PP,
100-101 (1962).

R.H. Mankiewicz, "PouvoirJuaiciairedu Conseil et
Reglementpour la Solution desDifferends", 3 bnnuake
Franc- Droit Inte-, pp. 383-404 (1957) (with
English translation).
G. Fitzgerald,"The Judgment of the International Courtof
Justice in the Appeal Relating to the Jurisdictionof the
ICAO Counciln, 12 CanadianYearbook of Inte-1 Law,
pp. 153-185 (1974).

Conventionfor the Suppressionof UnlawfulActs Against
the Safety of Maritime Navigationof 1988.

Conventionon Offences and Certain Other ACtS CommittedOn
Board Aircraft of 1963 (the "Tokyo Convention").

Conventionfor theSuppressionof Unlawful Seizure of
Aircraft of 1970 (the "HagueConvention").
F. Kalshoven,Çonstraintson the Waaina pf Wu (1987)~ pp.
7-8, 26-27,

InternationalCommitteeof the Red Cross,
Protocolsof 8 June 1977 to the Geneva
Çonventipnsof 1ZAuaust 1949 (Y. Sandoz, C. Swinarski,B.
Zimrnerman,editors), pp, 39-40 (1987) (the "ICRC
Commentaries").

"Protocol Additionalto the Geneva Conventions of 12
August 1949, and Relating to the Protectionof Victims of
InternationalArmed Conflicts (Protocol1)", reprintedin
72 mican Joual of Inte-1 Law, pp. 457, 467-470
(1978). AERIAL INCIDENT

Revision of the Rulea of ort Uaon the
Warfare, pp. 255-256 (1923).
Letter dateà 10 March 1986 from the Representativeof the
Islamic Republic of Iran to the ICAO Council President,
ICAO Document PRES AK/106 (with Attachment 11).

Letter dated 20 February 1986 from the Representative of
the Islamic Republic of Iranto the Secretary-General,
United Nations Document S/17850.

Letter dated 25 February 1986 from the Representative of
the Islamic Republic of Iran to the Secretary-General,
United Nations DocumentS/17863.

Letter dated 5 March 1986 £rom the Representative of the
Islamic Republic of Iran to the Secretary-General, United
Nations Document S/17896.

Special Rapporteur Lauterpacht, "Report on the Law of
Treat.es., II mook of the mational Law
-, pp. 90, 144 (1953).

art of the Irwited States Clalms Tribunal
for the Period Endins 30 Jwe 1988, pp. 3-4.

1mnhnAsseLLLitiaation . ReDorteLl, 24 March 1989, pp.
17064-17065.

-an Assets Lit~aataon ReDorteE , 23 September 1988, pp.
16312-16313.

Phelos Dodae Coroorathn. et al. v. The Government of the
C Re~ublic of Im, Award No. 217-99-2, pp. 14-16
(19 March 1986).

;eI;;;ao;;t ion v .The Govem'nl
al,, Partial Award No.
310-56-3, PP. 38-44 (14 JU~Y 1987).

United States Special Notice of Information, January 1984.

Notice from the Civil Aviation Organization of Iran, 27
February 1984.

Working Papers, Third Middle East Regional Air Navigation
Meeting (March - April 1984), ICAO Documents MID/3-WP/lO8,
MID/3-WP/77. TABLE OFEXHIBITS 279

88. International CivilNotice to Airmen, 11 January 1985.

Updated International Civil Notice tA oirmen, 19 August
1987.

Updated International Civil Notice to Airmen, 8 Septernber
1987.

Updated International Civil~otice to Airmen, 9 September
1987.

89. Telex dated 14 September 1987 from Iranian Civil Aviation
Organization to ICA0 Council President.