In TheNameofGod
. INTERNATIONALCOURO TFJUSTICE
CASECONCERNING OILPLATFORMS
(ISLAMICREPUBLICOF IRAN V.
UNITEDSTATESOFAMERICA)
OBSERVATIONS ANDSUBMISSIONSONTHE
U.S.PRELIMINARY OBJECTION
Submittedbthe
ISLAMICREPUBLICOFIRAN
Volume1
1July1994 TABLEOF CONTENTS
INTRODUCTION ............................................................
...................................................
PART I FACTUALISSUES RELEVANT TOTHE PRESENT
PROCEEDINGS ..........................................................
.............................
CHAPTER 1 THE U.S PRESENTATION OF THE FACTS
HAS NO RELEVANCE TO ITS
PRELIMINARYOBJECTION ..................................................
CHAPTER II FACTS RELEVANT TO THE
JURISDICTIONAL ISSUES BEFORE THE
COURT ............................................................
...........................
SECTIO AN Treaty Was Negotiated Reveals that It Had
a Broad StrategicImportance in Addition to
Regulating CommercialMatter..............................................
SECTIO BN with Commercial Activities, It Would Still
Provide a Basis of Jurisdiction for Iran's
Claims.........................................................
.........................
PARTII THELEGALBASISOFIRAN'SCLAIMS ...........................21..........................
CHAPTER 1 THE VIOLATION BY THE UNITED
STATESOF THE TREATY OF AMITY ....................................
CHAPTER II AMITY IN THE LIGHT OF GENERALOF
INTERNATIONAL LAW AND THE U.N.
CHARTER ............................................-.3..............
CHAPTER III ROLE OF THE SECURITYCOUNCILND ......................................
PARTIII .ANALYSISOF THE RELEVANTPROVlSIONS OF
THETREATY OF AMITY .............................................................
..........
.CHAPTER 1 OF SUBSTANCEIN OF ATHE U.S.THEORY ....................................
SECTIO AN The PrincipleofEffectiveness
("EffetUtile").......................................42.................
............
SEC~ON B The Position Takenb Iran in the Amoco
International FinanEase.........................................................
SECTIO CN Conclusion as to the Court's Jurisdictionto
ande1988were a Breach of Article 1of the -
1955Treaty...........................................46..............
................ CHAPTER II INTERPRETATION OF ARTICLE IV(1) .......................................
CHAPTER III INTERPRETATION OF ARTICLE X(l) ....................0..............
CHAPTER IV PRECLUDE XXTHE(d) COURTES FROMT
EXERCISING JURISDICTION IN THE
CASE ..................................................51.....
..............................
PARTIV CHARACTER.EXCLUSIVELYPRELIMINARYORITS
NOT? .........................................................
1............................................
CHAPTER 1 THE DISPUTE BETWEEN THE PARTIES
ADJUSTEDOT BYDIPLOMACY'SATIS................................................
CHAPTER II THE DISPUTE BEFORE THE COURT
CONCERNSTHE INTERPRETATION AND
APPLICATIONOF THE 1955TREATY ....................2..............
SECTIO AN The Existenceofa Dispute..............................2.......................
SECTIO BN The Existence of a "SufficientlyPlausible"
Linkbetween Iran'sClaimsand theTreaty.............................
CHAPTER III THE CLAIMS ACTUALLY MADE, AND
THE OBJECïIONS RAISED, IN THE
PRESENT CASE ........................................69...................
....
SECTIO AN Article1ofthe Treat...............................................................
SECTIO BN ArticleIV(1..........................................7.................
..............
SECTIO CN Article(1) ..........................................7................
................
PARTV CONCLUSIONS ................................................75.........
...........................
SUBMISSIONS ..................................................................................................................
ANNEX RESPONSETO THE U.S.STATEMENT OFFACTS
..-A. Introduction............................................1.............
......................
The Context: Iraq'sWar on Iran and U.S.
SupportforIraq..........................................1................
...............
U.S.Policyinthe PersianGu.........................................................
The United Statesannot JustifyItsAttackson
Iran'sOilPlatformsbyReferenceto Alleged
Iranian Attacks on CommercialShipping...........................................
E. State..................................................14......
................................ (il SilkwormMissiles ............................................1.....................
......
(ii) Iran'sAllegedMinelaying .....................................8........................
F. The Status of the Oil Platforms and the U.S.
Attacks ....................................................................
.............................
The Commercial Nature of the Platforms .....................22...............
(il
(ii) The U.S.Attacks on the Platforms ............................23....................
LISTOFEXHIBITS
CERTIFICATION INTRODUCTION
1. At the outset of its Preliminary Objection the United States
seeks to distort totally the nature of Iran'sclaim:
"Ineffect, Iran isseeking bythese proceedin s to have the Court do
what Iran failed repeatedly to have the ! ecurity Council do -
condemn the Elnited Statesas a participant on the side of Iraq in its
war with Iran .
The main purpose of this distortion is to suggest to the Court how preferable it
would be for the Court to declinejurisdiction, and thus avoid a situation in which
the Court might be tempted to make the very condemnation which the Security
Council had declined to make.
2. But, of course, this deliberate distortion of Iran's claim be
dismissedfor what it is:a travesty of the truth! Iran's Submissionsmake it crystal
clear that Iran seeks only:
(i) A finding that in attacking and destroying the Reshadat,
Nasr and Salman Platforms the U.S. breached its obligations
under Articles 1, IV(l), and X(l) of the 1955 Treaty of
Amityand international law;
A finding that the United States must make full reparation
(ii)
for the damage caused to Iran by these breaches2.
It is in relation to those two basic findings, both firmly based on the Treaty of
Amity, that Iran views the Court's jurisdiction as firmly established by Article
XXI(2) -the compromissory clause -of the 1955Treaty of Amity. The suggestion
by the United States that this is a "political dispute" in which Iran has already
failed in the Security Council,istorts the very nature of Iran's claim. The targets
of the U.S. attacks were commercial, oil producing platforms, and those attacks
were designed to produce - and did produce -great commercial damage to Iran.
Iran's claim is for the enormous financial damage it suffered by those attacks.
1 See, the PreliminaObjectionof the UnitedStatesof Americafiledon 16 December
1993(hereinaftereferred asthe "U.S.PreliminaObjection"), . para6 (footnote
omined).
2 See, the Mernoriaiof the IslamicRepublicof Iranfiled on 8 June1993 (hereinafter
referretoas "IranMemoriai")p,. 135. Iran does not seek from the Court anyjudgment reflecting on overall U.S. policies
during the Iran-Iraq war, nor does it seek redress for any political affront which
Iran may have suffered at the hands of the United States. The claim is an
orthodox, narrowly-confined legal claim for the loss and damage arising from
destruction of tangibleproperty in breach of treaty obligations.
3. There is yet a further distortion of Iran's claim in the
suggestion by the United States that Iran's claim is really for a violation of
customaryinternational law,and that the claim'sconnection with the 1955Treaty
is artificial or tenuous3. On that basis, as the United States is anxious to point
out, the Court has nojurisdiction4.
4. Iran's Memorial makes absolutely clear that its claims are
for violations of the Treatv of Amity. The context in whichIran refers to rules of
customary international law is twofold: either as rules which may assist in the
interpretation and application of the provisions of the Treaty of Amity5, a as
rules relevant to the determination of whether the U.S. plea of self-defence is
validlyinvoked6.
5. Asregards the first context, Iran in its Memorial cited ample
authority for the proposition that rules of general international law shall be taken
into account in interpreting treaty provisions, starting with Article 31(3) of the
1969Vienna Convention on the Law of Treaties, and including citationsfrom the
jurisprudence of this court7. If the United States wishes to take issue with that
3 U.S. PreliminaryObjection,pp. 1-2,paras. 4-5, andp. 33,para. 3.01.
4 The Court will notethe paradox inthe vigorous assertionby the United States thatits
conduct.was lawful and the anxiety of the United States lest the Court shouldhave
jurisdiction toleonthat assertion.
.5.- Iran's Memorial,pp. 72-75,paras. 3.10-3.19.
6 Ibid> pp. 95-105,paras. 4.08-4.41.
7 The citations were kept to the minimumbecausethe point seemedso elementaryand
uncontroversial. But the authority for the propositionis in factide, embracing
arbitral decisions(e.~.. Island of Palmas Case,(Netherlands/U.S.A.), 4 April 1928(Sole
Arbitrator, Huber),Reportsof InternationalArbitralAwards, Vol.II, p. 845)andseveral
decisionsof this Court(ex.. LegalConseauencesfor Statesof the ContinuedPresenceof
South Africa in Narnibia (South West Africa) notwithstanding Securi~ Council
Resolution276(1970).Advisorv Opinion, I.C.J. Reports 1971,p. 31, para. 53; Right of
Passageover IndianTemtorv. PreliminaryObiections. Judgment.I.C.J. Rmorts 1957, p.
142). proposition it is free to do so. But it has not, in fact, attempted to counter that
proposition; rather it has distorted Iran's use ofustomary international law so as
to countera quite different proposition which Iran does not in fact make.
6. As regards the second context, it is not disputed by the
United States that it seeks to justify its attacks on the oil platforms on the basis of
Article XX(l)(d) of the Treaty of Arnity -which states that the Treaty shall not
preclude the application of "measures necessary to protect [a Party's] essential
security interests" -by reference to its customaxy law right of self-defence8. In
these circumstances it is impossible to see how the central issue of a breach of the
Treaty of Amity can be addressed without considering the validityof the U.S. plea
of self-defence under general international law. But to suggest, as the United
States now does, that the issue then becomes one of customaxy law, and not
breach of treaty, is patently wrong. It simply confuses the delict -breach of the
Treaty ofArnity - with the U.S. defence to that breach -self-defence.
7. It is certainly true that, because the United States has now
filed a preliminary objection, the present pleading as a response to that objection
must, in conformity with Article 79(5) of the Rules of Court, confine itself to the
jurisdictional issue before the Court - namely to showing that there is, in the
words of the compromissory clause in the Treaty, a dispute "as to the
interpretation or application of the present Treaty..." (Art. XXI(2)). Thus, the
issues of customary law which relate to the U.S. plea of self-defenceas an excuse
for the breach have little or no relevance at this stageg. The same is true of al1
matters of quantification of the damages suffered by Iran. But this is not to
concede in any way the U.S. argument that these matters of customaxy law fa11
outside the Court'sjurisdiction.
'8. It is cornrnon ground between the Parties that the 1955
Treaty is a treaty in force. The essence of the U.S. position isthat the 1955Treaty
addresses "purely commercial and consular matterslO", and is based on the quite
erroneous belief that Iran is essentially charging the United States with
8 U.S. PreliminaObjection,pp.52-53,paras.3.40-3.42.
9 See, Part1.paras.1.01-1.02,below. Itis forthisreasonthatcorrectionsto theerrorsof
factpresentedbythe UnitedStatesaregivas anAnnex,ratherthanembodied inthe
principalChapteof thispleading.
10 U.S. PreliminaObjection,p. 33, para.3.01."aggression". The United States finds the Iranian claim to be "a callous
manipulation of the Treaty or the courtIl".
9. As already suggested, the United States has totally failed to
comprehend - and thus has distorted - the nature of Iran's claim: it is a claim for
breach of the 1955 Treaty. Moreover, as this pleading will demonstrate, to
characterise the Treaty of Amity as limited to "purely commercial and consular
matters" flies in the face of the clear terms of the Treaty. "Amity"is a purely
commercial (and even less a consular) matter. The terms of Article 1 of the
Treaty are:
"There shall be firm and enduring peace and sincere friendship
between the United States of America and Iran."
That provision contained a legal obligation which, as the first and paramount
obligation of the Treaty, governs the whole treaty relationship. This is borne out
by the Preamble which is equally incapable of the narrow construction the United
States seeks to place on it. The bombardment by U. S. naval units of these
offshore oil platforms is quite impossible to reconcile with a bona fide application
of Article 1.
10. Even on the basis that Article IV(1) of the Treaty is
"commercial"in naturel2, it isdifficultto comprehend whythis would not apply to
the present case. Article IV(1) provides that:
"Each High Contracting Party shall at al1 times accord fair and
equitable treatment to nationals and companies of the other High
Contracting Party, and to their property and enterprises...".
That the oil platforms destroyed were the property of a commercial entity, the
National Iranian Oil Company, is beyond dispute. The notion that bombardment
and destruction is compatible with according a fair and equitable treatment
.cannotbe taken seriously.
11 Uj., p. 38, para. 3.12.This is the whole tenor of PartIII, Chapter1 of U.S.
PreliminarObjection.
12 A propositionIranwouldnot accept,for treatmentof nationaiswhichbreachedthe
obligation toaccord"fairandequitabletreatment"ould take the formof arbitrary
detentionor expulsion,and have nothingwhatever todo with their commercialor
economic interests. 11. Equally, even if Article X(l) is limited to "commercial"
matters13, the moment that provision isgivena broad and sensible interpretation,
not limited strictly to actual transportation by seabetween the territories of the
two High Contracting Parties", it would embrace measures which aimed at
destroying al1possibilityof exports from an oilfieldin the territory of one Party to
the territory of the other. Hence, the conduct by the United States in question in
this case properly falls to be judged within the terms of the obligations assumed
under the express provisionsof the 1955Treaty.
12. The only remaining condition imposed by Article XXI(2) of
the 1955Treaty to the Court'sjurisdiction is that the dispute be "not satisfactorily
adjusted by diplomacy". That is a condition of fact and, as a fact, it can be
asserted categoricallythat this dispute has not been "satisfactorilyusted"l4 As
Iran has shownin its Memorial, the provision isnot designed as a pre-condition of
prior, diplomatic negotiations. It is designed purely to ensure that disputes
already settled are not re-opened bywayof recourse to the court15. The analysis
made by Iran in its Memorial has not been contested bythe United States.
13. In Iran's view, therefore, the U.S. actions were breaches of
Articles1,IV(1) and X(l) of the Treaty. However, the Court is not called to rule
on whether the U.S. actionswere or were not breaches of the Treaty at this stage
of the proceedings. Rather, the Court is asked to rule on the U.S. Preliminary
Objection. In this context, the mere fact that there are clearly genuine disputes
between the Parties conceming the interpretation and application of these
provisions of the Treaty must be sufficient to vest the Court with jurisdiction
pursuant to .Article XXI(2) of the Treaty, and shows why the U.S. objection
should be rejected.
14. In the substantive Parts of this pleading that follow, Part 1
willbegin by considering the facts relevant to the jurisdictional issue raised by the
United States. Part II then takes up the legal basis of Iran's claims, focusing in
13 Again,apropositionIranwouldnotaccept. ArtiX(l)protects"freedoofcommerce
andnavigation". The navigationneed notbe commercial forreto ba breachof
ArticlX(1).
14 a, PartIV, para.4.02. below.
15 Iran'sMemorial,pp. 64-67, paras.2.34-2.42.turn on (i) the tme nature of the violation of the Treaty by the United States
which underlies Iran's claims, not the distortion thereof offered by the United
States; (ii) the interpretation of the Treaty in the lightof general international law
and the U.N. Charter; and (iii) the difference between the Court's competence
and that of the Security Council. The detailed analysis of the relevant Treaty
provisions -Articles 1,IV(1) and X(1) -followsin Part III, together with a rebuttal
of the U.S. contention that ArticleXX(l)(d) of the Treaty somehowprevents the
Court from exercising jurisdiction in the case. Part IV then proceeds to
demonstrate that there is, indeed, a clear nexus between the claims of Iran and
the 1955Treaty so that the U.S. conduct does quite genuinely fa11to be judged
under the expressterms of that Treaty. This Part goes on to showthat if the U.S.
Preliminary Objection is not to be rejected, it should be held not to possess "an
exclusively preliminary character" under Article 79(7) of the Rules of Court.
There is, finally, a short PartV setting out Iran's Conclusions to this pleading,
followedby forma1Submissions. PART1
FACTUALISSUESRELEVANTTOTHEPRESENTPROCEEDINGS
CHAPTER1 THE U.S. PRESENTATION OF THE FACTS HAS NO
RELEVANCETOITS PRELIMINARYOBJECTION
1.01 Article 79(5)of the Rules of Court requires the statement of
facts in pleadings relating to areliminary objection to be confined to matters
relevant to that objection. The United States hasgnored this requirement. The
greater part of its Preliminary Objection, includingthe Annex thereto, consistsof
allegations aboutIranian actions in the Persian Gul-that Iran illegallyattacked
non-U.S. and U.S. flagvessels,and that Iran's commercialoilplatforms were used
to support such attacks- which have no relevance to the jurisdictional issues
raised by the United States. On the contrary, such allegations can only be
relevant to the U.S. argument that its attacks on Iran'soil platforms were a lawful
exercise of the right of self-defence. In making such allegations,the United States
is clearly seeking to show that there were prior armed attacks by Iran which
forced the United States to attack the oil platforms in self-defence, and that
action against the oil platforms was justifiedcause these platforms had been
used to support such Iranian attacks. Although these issues may ultimately be of
importance, they are self-evidentlyfor consideration at the merits phase. In Iran's
such arguments then it should
view, if the United States wishes to present
withdraw its Preliminary Objection and allowthe Court toonsider them for what
they are, a defence onthe merits. The United States should not abuse the Court's
Rules by presenting a defence on the merits while at the same time objecting to
jurisdiction.
1.02 It is for this reason that Iran has chosen to respond in detail
to the U.S. allegations only in an Annex to this pleading. Such a response is
necessary because, in making such allegations, the United States has sought to
'prejudice appreciation of the merits of Iran's case, without assuming the burden
of providing a substantiated defence. Iran's response is, however, made without
prejudice to its view thatsuch issues are strictly irrelevant to the jurisdictional
questions before the Court.
1.03 It is appropriate here only to highlight three points which
underrnine the self-defence argument as it is presented in the U.S. Preliminary
Objection. m, as noted above, the self-defence argument is premised on allegations that there were prior armed attacks by Iran against the United States.
Specifically,theUnited States alleges that Iran fired a Silkworm missilewhichhit
a reflagged Kuwaiti tanker, the Sea Isle City, on 16 October 1987,and that Iran
was responsible for layingthe mine which damaged the U.S.S.Samuel B. Roberts
on 14 April1988.
1.04 The United States must bear the burden of proof with
regard to such allegations, and show that it acted in self-defence, meeting al1
conditions. However, the truth is that the United States has never produced any
independent evidence showingIranian responsibilityfor either of these attacks, or
indeed for any other attacks allegedly carried out by Iran against the United
States. In its Preliminary Objection, the United States does no more than cite
statements made at the time by U.S. Govemment officials,or secondary sources
which themselves rely on statements by "Pentagon officials" or "Government
sources". This is not evidence. Such statements are no more than self-serving
assertions and were made at the time precisely with a view to justifjnng U.S.
actions.
1.05 In the Annex hereto, Iran has done its best to prove a
negative. Thus, with regard to the U.S. allegation that Iran fired a Silkworm at
the Sea Isle City,Iran has sought to show that the Sea Isle Citywas well beyond
the effective range of anIranian Silkworm. It has also pointed to evidence that at
the time the United States thought Iran's Silkwormswere positioned around the
Strait of Hormuz and that Iran had no Silkwormson the Fao peninsula. Finally,
Iran points out that Iraq carried out Silkwormattacks on Kuwaiti vessels,so there
is no prima facie reasonwhythe attack should be assumed tobe 1ranian16. With
regard to the allegation of minelaying,Iran has shown that Iraq isknown to have
placed mines throughout the Persian Gulf, and that there is no evidence that the
mine which damaged the Samuel B. Roberts was Iranian or had been deliberately
placed by Iran. Iran had no interest in minelaying. Its shipping was equally
vulnerable to mines, and for that reason Iran's navy carried out extensive mine-
sweeping operations 17.
1.06 The second point that needs tobe highlighted here concerns
the use made by the United States of alleged Iranian attacks on non-U.S. flag
16 &, Annex,paras 36,gta..
17 ~.,Annex,paras.44,gtet..vessels. The greater part of the U.S. Preliminary Objection consists of no more
than a list of alleged Iranian attacks on non-U.S. flag vessels. The implication is
that such attacks form part of the justification for the U.S. attacks on Iran's oil
platforms - in other words, the United States appears now to be seeking to
characterize its attacks on Iran's oil platforms as an exercise of collective self-
defence.
1.07
Aswillbe explained hirther in the Annex hereto18, such a
position cannot be sustained. None of the legal conditions for an act of collective
self-defence can be met by the United states19 -there was no declaration by a
third State that it was the victim of an armed attack, no request for help made to
U.S. forces, and the United States reported its attacks on Iran to the Security
Council as acts of individual self-defence, not as acts of collectiveself-defence20.
Indeed,the United States failsto point out that U.S. policyat the time was strictly
limited to providing assistance onlyto U.S. flag vessels21 .
1.08 The United States is also unable to explain why alleged
Iranian attacks justified an act of collectiveself-defencewhereas Iraqi attacks did
not. There is almost universal agreement among commentatorsthat Iraqi attacks
were the cause of violence in the Persian Gulf, and that such attacks were far
more numerous and far more violent than the attacks for which Iran is allegedly
responsible. Iraq followeda policyof "shootfirst - identifylater", attacking vessels
of al1nationalitiestrading throughout the Persian Gulf.
1.09 Despite such actions by Iraq, the United States supported
Iraq in its war against Iran, a war in which Iraq was the aggressor and for which
Iraq has been found to be whollyresponsible. The United States took no action
whatsoever to hinder Iraqi attacks and never found it necessary to respond in
defence of third State vessels against such attacks. Even after the Iraqi attack on
the U.S.S.Stark, there was no U.S. reaction against Iraq.
19 -See, MilitarvandParamilitaActivitiesin andagainst Nicaragu(aNicaram v. United
Statesof America).Merits.Jud~ment,I.C.J. Reports1986,pp. 103-105,paras.195-200,
andpp. 119-121,paras.229-233.
20 &, Iran's Mernorial,xhibits73 a3d forthetextof theU.S. reportsof itsattacksto
theSecurityCouncil.
21 -See, Annex,para.24. 1.10 In Iran's view, it is pure hypocrisy for the United States to
express concern now about the fate of commercial shipping in the Persian Gulf.
At the time, Iran repeatedly called on the international community to condemn
Iraqi attacksand to take action to cease the violence in the Persian ~ulf~~. These
protests met with no success, and no response from the United States. In such
circumstances, alleged Iranian actions cannot be used to justify the U.S. attacks
on Iran'soilplatforms.
1.11 A third and final point must be emphasized. The United
States does not show that it acted in lawful self-defence simply by alleging that
Iran attacked U.S. flagvessels. It must also showthat such alleged Iranian attacks
were illegal, as opposed to being themselves legitimate responses to violations of
the norms of neutrality or prior armed attacks. Moreover, the United States must
also showthat an act of self-defence was "necessary"and that the action taken was
proportionate and limited to the necessities of the case.
1.12 As explained in its Memorial, Iran believes that none of
these conditions can be met by the United statesZ3. In particular,Iran notesthat
the U.S. attacks occurred several days after the attacks of which Iran is accused.
There was no "immediate necessity"to attack. The United States itself described
its first attack as a "reprisal".
1.13 The U.S. attacks were also disproportionate. The alleged
Iranian attacks are reported as having caused relatively minor damage with no
casualties. The U.S. attacks, on the other hand, caused enornous economic
damage and several casualties. The first attack totally destroyed both the R7 and
R4 complex on the Reshadat field. In this context, it must be remembered that
the first attack was accompanied by a further retaliatory measure - a total
embargo on U.S. imports of Iranian oil (and other products) - explicitlydesigned
22 &, Iran'sMemorial,Exhibit23, atp. 233. Thisextractfrom the YeaoftheUnited
NationsrecordsIran'sprotestin 1984atIraq's atttinternationaiiheconflictby
attackinvesselsofthirdStatesinthePersianGulf,which aiso contheU.N. totake
measures to hait this development. In fact, Resolution552(1984) made no
condernnatioonf Iraqiattacks, whnumbered some71 attacks,as against3-4 alleged
attacksby Iran.As Iranpointedout, this Resolutionwas a licencefor furtherIraqi
aggression.m., p. 236.
23 &, ingeneral,Iran'sMemoriai,PartIV.to weaken Iran's position in the ~ar~~. This legislation was aimed directly at
Iran's oil industry. Not only did Iran lose a major customer for crude oil but at
that time Iran was seeking to buy oilfieldequipment from U.S. companies to help
replace machinery damaged by Iraqi air attacks, as was the case with the
Reshadat and Salman fields25. Such purchases were prohibited under the
sanctions 26.
1.14
The second attack was directed not only against Iranian oil
platforms, but also against Iranian naval forces and resulted in the sinkingof one
frigate and two patrol boats and severe damage to a second frigate and two other
patrol boats. There were several casualties. It must be recalled that, in contrast
to the alleged Iranian attacks, the Iraqi attack on the U.S.S. Stark caused huge
damage and great lossof life,yetthe United States took no action against Iraq. In
Iran's view, this shows that the U.S. attacks against Iran were neither necessary
nor proportionate. Thus, at best, the U.S .ctions would have to be characterized
as illegalreprisals. The fact thatsuch reprisals were illegal,however, means that
the United States would not be able to excuse its violations of the Treaty of
Amity .
CHAPTERII FACTSRELEVANTTO THEJURISDICTIONALISSUES
BEFORETHECOURT
1.15 It has been shown above that the statement of facts in the
U.S. Preliminary Objection is irrelevant to the jurisdictional issue before the
Court. However, there are two aspects of the factual background which are
relevant to the jurisdictjonal objection raised by the United States, but which are
totally ignored in the U.S. Prelirninary Objection.
1.16 The first aspect concerns the circumstances of the signingof
the Treaty of Amity, which have already been described briefly in Iran's
24 President Reagan formally approsuch sanctionso26 October1987, less than one
week after the first attack. The sanctions came inet a time when the United
Stateswasimporting abo250,000 barrelsof Iraniancrudeoilper day. Thelegislationis
quite explicit in stating its aim to punish Iran and weaken Iran. he text oftT
the relevant legislation, together with the Whiteuncementof the President's
approvalofthe legislation is inclExhibit1.
25 &, Iran'sMemonal, p.41,para.1.101,andp. 47,para.1.114.
26 The Washington Post24 October1987. Exhibit2.~emorial~~. Thisbackground willbe discussed again in Section A belowbecause
it showsthat the Treaty was a part ofwider U.S. foreign policyobjectives aimed at
forging a political and strategic alliance with Iran. Precisely for this reason the
Treaty was not limited to purely commercial and consular matters but was set in
the general framework of a relationship of "Amity" and - unlike most FCN
treaties entered into by the United States after World War IIncluded a specific
provision, Article,providing that "[Tlhere shall be firm and enduring peace and
sincerefriendshipbetween the United States and Iran".
1.17 In any event, even if the United States was correct in
asserting that the Treaty of Amity was exclusivelyconcerned with commercial
relations, this would still notar Iran's claims. For it is abundantly clear that
Iran's claims arise out of the use of force against, and the destruction of,
commercial oil platforms. As will be explained in Section B below, these
platforms were engaged in the activityof producing and transporting petroleum
when they were destroyed. Thus, even if the Treaty was solely concerned with
commercial matters, which it was not, the Court would still have ample grounds
for exercising itsrisdiction since there would stillbe a dispute as to the Treaty's
interpretation and application resulting out of the use of armed force by the
United States againstcommercialinstallations of Iran.
SEC~ONA The Historical Context Within Which the Treatv Was
Negotiated Reveals that It Had a Broad Strategic
Importancein Additionto RepulatineCommercial Matters
1.18 With the emergence of the Cold War between the United
States and the Soviet Union followingWorld War II, the United States became
increasingly concerned with keeping Iran out of the Soviet sphere of influence.
The nationalization of thenglo-Iranian Oil Company in 1951by the Mossadegh
Government and the subsequent British embargo on Iranian oil gave a special
point to the U.S. concerns forwo reasons:fir thtU,nited States was concerned
that Mossadegh would turn awayfrom the west towards the SovietUnion; second,
the cutting off ofIranian oil supplie- which occurred at a critical time in the
28
Korean war -accentuated the vital strategic importance of Iranian oil
27 &, Iran'sMernorial,Chapter1,SectionA.
28 &, Yergin, D.: The Prize, &iSchuster,NewYork, 1991, pp. et=.. Exhibit
-. 1.19 This situation led the United States to support the pro-
American Shah over the Government of Prime Minister Mossadegh,and to make
a concentrated effort to strengthen political, military and economic tieswith Iran
inorder to draw Iran awayfrom the Soviet Union. As a U.S. Government report
stated in December 1953:
"It is of critical importance to the United States that Iran remain an
independent nation, not dominated by the USSR. Because of its
key strategic position, oil resources, vulnerability to intervention or
armed attack bythe USSR, and vulnerabilityto political subversion,
Iran mus be regarded as a continuing objective of Soviet
expansion b. .
1.20 Countering Soviet influence in Iran and gaining access to
Iranian oil became the main aims of U.S. policy. Iran's Memorial has already
described the steps taken by the United States to support the Shah's rise to
power. The United States also provided extensive military aid to Iran, and in
October 1955Iran became a signatory to the strategicallyoriented Baghdad Pact,
largelyas a result of U.S. initiatives.
1.21 At the same time, the United States took a major role in
solvingthe Anglo-Iranian crisis,which resulted in 1954in a new agreement, the
Consortium Agreement, pursuant to which U.S. oil companies obtained a
substantial stake in Iran's oil industry. Again and again before the Iran-U.S.
Claims Tribunal, U.S. oil companies were at pains to show that the Treaty of
Amity was entered into as a result of U.S. investments in Iran's oil industry.
Again and again the close connection between the Treaty and the Iranian oil
industry was stressed. The U.S. oil companies filed affidavitsby U.S. negotiators
of the Treatytestifymgto this close connection30. Asone negotiator pointed out,
the Consortium Agreement was "an important part of the political background of
the Treaty negotiations3l".
.. ,.
1.22 What is less well-known, however, is that the motive for
entering the Consortium Agreement - and hence the Treaty - was more for
29
"GrowingUnitedStatesStrategicInterestIran;UnitedStatesPolicyTowardsIran:A
Reportto the NationalSecuntyouncilby theN.S.C. PlanningBoard",21 December
1953, cited in Alexander, and Nanes, A. (eds.): The United Statesand Iran, A
DocumentarvHistorv,University Publicatof America.1980,p. 265. Exhib4.
30 TheAffidavitsprovidedby theU.S. oil companiesarefiled init5.
31 Ibid>p.3.political and strategic reasons than for commercial reasons. In fact, U.S.
companies were reluctant to go to Iran when their involvementelsewhere in the
Middle East was sufficient to cover their supply requirements. Recounting a
meeting with the King of Saudi Arabia, the Vice-President of Exxon gave the
following explanation of why the Aramco partners agreed to participate in the
Consortium:
"..we were going in solelyon the basis that there might be chaos
out in the area if we didn't, and would he [King Saud] agree with
this and recognize that we weren't doing thisecause we wanted
more oil anywhere, because we have adequate oil in the Aramco
concession,but we wBI doing it as a politicaltter at the request
of our government ... .
This view was echoed in a letter to Secretary of State Dulles dated 4 December
1953from the Vice-President of Standard Oil:
"From the strictly commercial viewpoint, Our Company has no
particular interest in entering such a group but wej3?fe VeSr
consciousof the large national securityinterests involv.d
1.23 The position of the U.S. Government was made clear in a
letter dated 28 January 1954 from the State .Department to the Chairman of
Standard Oil:
"The National Security Council has been considering the Iranian oil
situation for some period of time. After consultations with the
Secretaries of State and Defense and the Chairman, Joint Chiefs of
Staff, the National Security Council has determined that it is in the
security interests of the United States that United Statespetroleum
c th thepaniesd'cipate in an international consortium toontract
ovemment of Iran, within the area of the former
concession of the Anglo-Iranian Oil Company, Ltd., for the
production, refining, and acquisition of petroleum and petroleum
products, in order to permit the reactivation of the petroleum
industq in Iran and to provide to the friendly Govemment of Iran
substantialrevenues on terms whichwillprotect the interest94f11he
Western World in the petroleum resources of the Middle East .
32 93rd Cong., 2nd Sess., SenateCommitteeon Foreign Relations,Subcommit.eeon
Multinational CorporatHearingson Multinational PetroCornorationsand
ForeignPolicy, 197Pt.7, p. 304, cited in Blair,J.M.: The Controlof Oil, Vintage
Books,NewYork,1978,pp.44-45. Exhibit6.
33 Securitv,a report preortheSubcommitteonMultinational Corporatnfstheional
CommitteeonForeignRelationsofU.S.Senate,21February1974,p. 58. Exhibit7.
34 m., pp. 76-77.The letter attached a "Proposed Iranian Consortium Plan", in which the State
Department, referring tothe Anglo-Iranian dispute, recalled that:
"The United States has long recognized that a settlement of that
dispute which would provide for the reopening of the Iranian oil
industry on a sound and permanent basis is vital to its national
security. For this reason the United States has so ht such a
solution sjncethe inception of the dispute early in 1951 .1
1.24 The political importance of the Consortium Agreement was
such that the U.S. Government was ready to exempt the U.S. oil companies from
antitrust laws whichwould normally have prohibited joint participation by the oil
companies in such a Consortium Agreement. As the National Security Council
stated in 1953:
"Itwillbe assumed thatthe enforcement of the Antitrust lawsof the
United States against the Western oil companies operating in the
Near East may be deemed secondary to the national security
interest to be served by:
(1) Assuring the continued availability to the free world of the
sources of petroleum in the Near East, and
(2) Assuring continued friendly relationships between the oil
producing tions of the Near East and the nations of the
free world#I.
It is significant that the enabling Statute granting the President of the United
States power to negotiate the Treaty of Arnity with Iran echoes this language,
stating that the aim of such a Treaty was the achievement of "rising levels of
production and standards of living essential to the economic progress and
defensive strength of the free ~orld~~". The link between commercial and
strategic interests in the face of the perceived Soviet threat was here made
explicit.
1.25 It was in this context that the Treaty of Amitywas signed on
.15'August1955. In the light of the importance which the United States attached
to its overall relations with Iran at thatime, it is clear that the Treaty was not
"purely commercial". The Treaty constituted one of the cornerstones of U.S.
policy,cementing relations -political,strategic, economic and consular -with Iran
35 m., p. 78.
36 m., p. 52.
37 &, Iran'sMemorial,Exhibit 1(emphasisadded).during what was perceived by Washington to be a critical point in Iran's history.
For Iran's part, the Treaty provided a reassuring counterbalance to the proximity
of the Soviet Union on Iran's northern borders and the interna1 threat of the
communist Tudeh ~arty~~.
1.26 In these circumstances, it is no accident that the Treaty was
as much a treaty of amity as one of economic relations and consular affairs. This
is borne out by the Treaty's title which makes it clear that it addresses three
distinct subjects:"Arnity,Economic Relations and Consular Rights". Norwas it a
coincidence that the very first Article of the Treaty established a regime of
peaceful and friendly relations between the Parties since this effectivelyreflected
U.S. policy, which was intent on developing a wider political and strategic
39
relationship with Iran at the time .
1.27 The idea that the inclusion of Article 1was purely fortuitous
and without significance - as the United States now pretends40 - is plainly false.
The historical context makes clear the vital strategic issues that were at stake in
forging a friendly alliance with Iran. When negotiating a similar FCN Treaty with
China in the same period, the United States was more honest about the
importance of this provision. In negotiations with China, the U.S. State
Department noted that the inclusion of such a provision was "m ...customarv",
but was "appropriate" in this particular case "inviewof the close ~oliticalrelations
between China and the United statesdl. This fact alone totally contradicts the
U.S. position on the significanceof the ~reaty~~.
38 Dr. Henry Kissinger has underscored the importance ofamity to the Iran-U.S.
relationship: "Aloneamongthe countriesof the re.ion.. madefriendshivwith the
United States the starting pointof its foreign policy. That it was basedon a cold-eyed
assessment thata threat to Iranwould most likely come from the Soviet Union,in
combination with radicalArab States, isonly anotherwayof sayingthat the Shah'sview
of the realitiesof worlditics paralleledour own".ssingerH.: The WhiteHouse
m, WeidenfeldandNicolson, London, 1979,p. 1262(emphasisadded. xhibit8.
39 As Professor M. Yapp has observed:"For the United States, policy towards Iran could
only be considered in thegeneralcontextof policy towards Russia,which involvedthe
upholding of the independenceof threatened countries in the spirit of the United
Nations". $ee,Yapp, M.: "1942-1976: The Reignof Muhammad Reza Shah", in
Amirsadeghi, H. (ed.): Twentieth Centuw Iran, Heinemann, London, 1977, p. 65.
Exhibit9.
41 See, Exhibit 10 (emphasisadded).
42 &, further, Part III, Chapter1,below. SEC~ONB Even if the Treatv of Arnitv Was Concerned with
Commercial Activities, ItWould Still Provide a Basis of
JurisdictionforIran'sClaims
1.28 Even if the United States was correct that the Treaty of
Amity was purely, or even predominantly, a commercial treaty, Iran's claims
would still be admissible on jurisdictional grounds. This iscause the platforms
which were destroyed by the United States and which form the subject matter of
the present dispute were commercial installations entitled to protectionder the
terms of the Treaty.
1.29 Asdescribed in Iran's Memorial, the Reshadat and Resalat
complexes consisted of drilling, seMce and production platforms which were
linked to some 40 individualoil wellscapable of handling up to 200,000barrels of
production a day43. These installations passed through a central producing
platform (R7) on the Reshadat complex which in turn pumped oil via a subsea
line to an oil terminal onLavan Island. It was this platform which was the focus
of the U.S. attack on :l9 October 1987. By destroying it, the United States
effectivelycrippled Iran's commercialproduction from the underlyingfields.
1.30 The Salman facilitieswere broadly similar and were capable
of producing approximately 220,000 barrels of petroleum a day, while the Nasr
platforms had a capacity of 100,000barrels a day44. These were the focus of the
U.S. attacks on 18April 1988.
1.31 There can be no doubt that these installations were
commercial in nature. They were owned and operated by the National Iranian
Oil Company, a joint stock Companyincorporated under the Iranian Commercial
Code for the purpose of prospecting for, producing and selling petroleum
products. The United States accepts that both the Salman and Nasr platforms
.were still producing oil at the time of the U.S. attacks, and does not dispute the
fact that the only reason Reshadat was not producing was because it was
45
undergoing repair work as a result of earlier Iraqi attacks
43 &, Iran'sMemorialpp.9,a seq. ,aras1.14, gtW..
45 U.S. Preliminq Objection,p. 17, para.1.24. 1.32 It must also be stressed that at least up until the first U.S.
attack on the Reshadat platform in October 1987, the United States was
importing significant amounts of oil from Iran, up to 250,000barrels of oil per
day. Thus, there was commerce in oil between Iran and the United States, which
further emphasizes why the attacks on the platforms violated the Treaty of
~mity46.
1.33 It is worth mentioning one final element which confirms the
close connection between the oil platforms and the Treaty of Amity. As
explained in Iran's ~emorial~~, prior to the Islamic Revolution in Iran, the
Reshadat, Resalat and Salman complexeshad al1been jointly operated by U.S. oil
companies which, pursuant to Joint Structure Agreements entered into in 1965,
had contractual rights to a portion of the oil produced until the end of the
century. After the Iranian Revolution the U.S. Government and individual U.S.
oil companies accused Iran of expropriating the oil companies' interests inthese
fields in violation of the Treaty of Amity. As the U.S. State Department alleged
in a speciallyprepared "Memorandum on the Application of the Treaty of Amity
to Expropriations in Iran", the halt ofoil exports to the United States, much of
whichwas produced from the platforms at issue here, violated Articles IV and X
of the Treaty of ~mity~~. Similar arguments were advanced by the U.S. oil
companies in numerous cases before the Iran-U.S. Claims Tribunal. The United
States is thus clearly guilty of double standards. On the one hand, it does not
hesitate to claim that Iran's alleged expropriation of its oil interests violated
provisions of the Treaty of Amity when it suits U.S. interests to do so. On the
other hand, now the United States argues that exactly the same provisions have
no relevance to play in this caseespite the fact that the same oil installations are
at issue.
-1.34 Whether one applies the strict provisions of the Treaty of
Amity or the notion of equity infra legem, the U.S. arguments cannot be
.sustained. For the claims advanced by Iran concerning the destruction of its
commercial oil platforms clearly fa11within the scope of interests which are
protected by the provisions of the Treaty of Amity,whether that Treaty isviewed
46 &, para.1.13belowand footnote25.
47 Iran'sMemoriai.pp.8-11,paras.l.ll-1.19.
48 &, Exhibit94toIran'Memoriai,p. 1409n,ot21.as being "exclusively commercial" as argued by the United States or, as Iran
submits,covers wider obligations of peace and friendship as well. PARTII
THELEGALBASISOFIRAN'SCLAIMS
CHAPTER1 THE VIOLATION BY THE UNITED STATES OF THE
TREATYOFAMITY
2.01 The United States concedes that Article XXI(2) of the
Treaty of Amity confersjurisdiction upon the Court to decide disputes relating to
the Treaty's interpretation orapplication4g. The United States therefore does
. not contest the fact that the Treaty remains part of the corpus of law in force
between the two States.
2.02
It was on the basis of this fact, which wasnot disputed in any
manner by the United States in its pleading of 16December 1993,that Iran seised
the Court, as it was entitlednder Article XXI(2) of the Treaty of Amity. Iran is
perfectly well aware of the strict limitswhich areposed upon the Court by the
compromissory clause iri Article XXI(2), given that it restricts its jurisdiction to
the settlement of only 1:hosedisputes between the Parties which concern "the
interpretation or application of the present Treaty". For this reason, Iran has
been careful not to bring before the Court the whole of its dispute with the
United States insofar as it relates to questions other than those concerning the
interpretation or application of the Treaty of Amity. Both in its Application filed
on 2 November 1992 and in its Memorial of 8 June 1993, Iran requested the
Court onlyto adjudge and declare that, by its conduct on 19October 1987and 18
April 1988, the United States breached Articles 1, IV(1) and X(l) of the 1955
Treaty of Amity, and that compensation is due from the United States to Iran on
account of such breaches of that bilateral treaty.
2.03 Iran has therefore not requested the Court, as has been
wrongly maintained by the United States, to "condemn the United States as a
participant on theside of Iraq in its war with 1ran50". This allegation is clearly a
'flagrantdistortion of the truth,ce Iran's claim here concerns onlythe events of
19October 1987and 18 April1988, and not the whole of U.S. conduct throughout
the eight years of the armed conflict provoked by Iraq's invasion of Iran on 22
September 1980.
49 U.S.PreliminarObjection,pp.1-2,para.4.
50 W.,p. 2,para.6.&, also,W.,pp. 38and41.paras.3.12and3.18. 2.04 It goes without saying,however,that the facts whichin Iran's
viewgive rise to the international responsibilityof the United States for breach of
the 1955 Treaty of Arnity can be neither analysed as to their substance nor
evaluated from the legal point of view, if they are not placed in their proper
context,b, if they are not examined as part of the chain between previous and
subsequent events. But this indispensable reminder of the context -which inany
event has been provided in some detail in the pleadings of both Parti-does not
change the fundamental fact: Iran is asking the Court to do no more than rule
that the U.S. actions against Iran on 19 October 1987 and 18 April 1988 were
illegal in the light of the provisions of the 1955 Treaîy, and to determine the
consequences of such illegalactions.
2.05 In its Preliminary Objection the United States has also
argued that Iran's claims do not fa11within the scope, ratione materiae, of the
compromissory clause contained in Article XXI(2). Thus, the United States
argues, the Court does not have the necessary jurisdiction to entertain such
claims, given that what Iran is really relying upon are violations by the United
States of the principles and rules of general international law and the U.N.
Charter, and not breaches of the terms of the 1955~reaty~l.
2.06 It is true and Iran does not dispute this - that questions
concerning violations of general international law and the Charter do not asuch
fa11within the jurisdiction of the Court in the present case, where the Court may
be seised only in connection with the interpretation and application of the 1955
Treaty. On the other hand, however, it is absolutely incorrect to argue that Iran
has tried to submit to the Court matters over which the Court has no jurisdiction
because they are not covered bythe Treaty of Arnity.
2.07 The connection which must exist between a claim and the
treaty upon which it is based, in order to found a tribunal's jurisdiction as
delimited by the compromissory clause of the treaty in question, willbe examined
insofar as its general aspects are concerned in Part IV below. Here, Iran will
demonstrate the fallacious nature of the U.S. objection to Iran's Memorial,
although it was already explained in detail in that Memorial that the claims
submitted to the Court by Iran are al1strictly concerned with the interpretation
51 -See, U.S. PreliminaryObjection,ppa g., and,inparticular,paras.3.10-3.12.and application of the 1955Treaty, and not the interpretation and application of
the U.N. Charter or of general international law.
2.08 For this purpose, Iran willbe obliged,in Part III, to return to
the scope of application of the 1955 Treaty as a whole in order to stress again
that, contrary to what has been wronglyalleged by the United States, it does not
cover only questions of a strictly commercial or consular nature. Iran will also
return to the interpretation of the three provisions of the Treaty upon which it
relied in itsApplication, inorder to reply to the United States' specificarguments
on this subject.
2.09 However, it appears indispensable as a preliminary matter
to stress in this Part two aspects of a methodological nature concerning (i) the
rules and criteria governing the interpretation of the terms of the Treaty which
are under discussion and (ii) the different roles that the Court and the Security
Council have to play with respect to the incidents in question. Since the Iranian
Memorial has already dealt with the first of these subjects in some detail, itwillbe
sufficientsimplyto recall brieflythe relevant legal principles.
CHAPTERII INTERPRETATIONOF THE TREATYOF AMITY IN
THE LIGHT OF GENERAL INTERNATIONALLAW
ANDTHE U.N.CHARTER
2.10 Itis necessary to determine precisely what role is to be
played by general international law and the U.N. Charter in the interpretation of
the Treaty of Amity. It is quite true that Iran's Memorial did make considerable
reference to general international law in order to determine the illegalityof the
U.S. conduct which is in issue in the present case. But general international law
was not used by Iran as an autonomous and exclusive parameter for judging the
facts in question: it wasused onlyas a means of interpretation of the 1955Treaty,
or as a starting point for the determination of the exact meaning of its terms. In
doing so, Iran was applying the elementary concept that general international law
isa kind of "background"for international treatie~~~;consequently,
52 See, Delimitationof the MaritimeBoundarvin the Gulfof MaineArea.Judgment.I.C.J.
Reports1984,p.291,para. 83. "[alny international convention must be deemed to refer tacitly to
general international law foral1gyestions which it does not resolve
differently itselfin express terms."
2.11 In other words, Iran has not asked the Court to judge U.S.
conduct on the basis of general international law and the U.N. Charter: it has
requested it, and continues to request it, to apply only the 1955 Treaty, but to
interpret that Treaty in the proper manner, i.e in.he light of "anyrelevant rules
of international lawapplicable between the parties" in accordance withArticle 31,
paragraph 3(c), of the Vienna Convention.
2.12 The: first thing to remember with regard to Article 31,
paragraph 3(c), of the Vienna Convention on the Law of Treaties is that the
criterion relating to the use of international law inrder to interpret a treaty is
one of the elements of the -"general rule of interpretation" (as Article 31 is
headed): an element which must be accorded the same status and degree of
priority as the otherriteria provided for in the same "general rule&, the terms
of the provision to be interpreted, its context, and thebject and purpose of the
treaty. This concept is made perfectly clear in the opening phrase of paragraph 3
of Article 31: "There shall be taken into account, together with the
context..."(emphasis added). In other words, as an acknowledged authority has
said:
"[tlhe words 'together with' indicated that the stipulations which
followareto be taken as incorporated in the 9 ic statement of the
rule, and not as norms of an inferior character ."
2.13 The second remark, to use the words of an author who has
dwelt at length upon this question, isthat:
"..it can be said that subpara. 3(c) is declaratory of customary law.
.This means of interpretation was well established before the ILC
took up the matter. For most ILC members, subpara. 3(c)
contained a well recognized principle, and its interpretation rarely
53 Georges Pinson (France) v. United MexicanStates, Decis1, 19October,1928,
(Sole Arbitrator, Verzijl) Reuons of International Arbitrai Awards, 422. V, p.
Unofficialtranslation providedby Iran. The original Frenchtext readsasfollows:
"Toute convention internationale doit être réputée s'en référaentacitem
droit international commun, pour toutes les questions qu'ellene resout paselle-
même en termesexprèset d'unefaçondifférente.
54 Jennings, Sir Robert J. and Watts, Sir Arthur (eds.): Ouvenheim's International Law,
Ninth Edition, Longman, London, Vol.1274,footnot17. gave rise to controve . In fact, the provision was generallytaken
for granted byStates m l.
2.14 The raison d'êtrefor this indisputably fundamental criterion
for interpretation was explained in a particularly effective manner by Charles de
Visscher, whowrote as followsin his well-knownmonograph on interpretation:
"The reference to general international law is the logical
consequence of the idea that lies at the root of any treaty
interpretation, k, that a text never exists in a vacuum and that
unless there is a derogation resulting from precise terms, it must be
seen as falling within the framework of common or general
international law. This law thus appears as a referepge systemfrom
whichthe interpreter willcontinuallyseek guidance ."
2.15 To underline the continuityof the approach to this subject in
doctrine, it is sufficien.t to mention the most recent handbook of public
international law,byProfessors Combacau and Sur,whowrite as follows:
"...the rule or situation to be interpreted should not be considered
in isolation, but ...must be placed in the context of the applicable
law as a whole. This principle of integration underlines the unity of
international law and establishes a presumption as to the
declaratory nature of special rules in relation to general rules. In
other words, and failing any intention to the contraq, it must be
considered that when a legal concept is used without further
precision in a special rule, reference is made to its definition under
general international law. Thus reaties normally fa11within the
context of existingcustomary la $jI .
55 Villiger, M.E.: CustomarvInternationalLaw andTreaties, MartinusNijhoff Publishers,
The Hague, 1985,p. 269. a, also, in this regard, Yasseen, M.K.: "L'interprétation des
traités d'après la Conventne Vienne sur le droit des traités",Recueil des Coursde
1'Academiede Droit International, Vol.151, 1976,Ip.68.t
56 de Visscher, C.: Problèmes d'intemrétation iudiciaire en droit internationl.,pubA
Pedone, Paris, 196p. 92. Unofficial translation providedby Iran. The original French
text readsas follows:
"La référencea:u droit internationalmun est la conséquence logiquede
l'idée qui estabasedetoute interprétation des tras,savoirqu'untextene
se situejamais dans le vide etque, saufdérogation rédte termes précis,il
doit être envisagé comme s'insérant dans les caddruesdroit international
commun ou général. Celui-ci apparaît aincsimme un systèmede référence
auquell'inte~yrèse reportera constamment".
57 Combacau,J. andSur, S.: Droit internationalpublic, Montchrestien,Paris, 1993,pp. 175
etsea.. Unofficial translation providedby Iran.e original Frenchtext reads as
follows:
"... il ne convient pas de considérer isolémenlta règle ou la situatiàn
interpréter,mais..il faut les insérer dansle contexte de l'ensemble du droit
applicable.Ce principe d'intégration souligne l'uu droit internationaiet 2.16 This criterion has not only been consistently stated in
doctrine, but has alsa been applied on many occasions in international
jurisprudence concerning numerous treaties dating from al1periods58. However,
it is of course particulaily significantthat it has already been applied in practice
with respect to the 1955Treaty of Amity between Iran and the United States, by
the Iran-U.S. Claims Tribunal in the Amoco International Finance case. In its
award of 14July 1987,the Tribunal held as follows,with exemplary clarity:
"Asa lex specialis in the relations between the two countries, the
Treaty supersedes the lex rreneralis, namely customary
international law. This does not mean, however, that the latter is
irrelevant in the instant Case. On the contrarv. the rules of
customary law may be useful in order to fil1in possible lacunae of
the Treaty, to ascertain the meaning of undefined terms in its text
or, more -wfrally, to aid interpretsion and implementation of its
provisions .
2.17 Significantly,the United States itself has recognised that the
terms employed in FCN treaties such as the 1955 Treaty of Amity must be
établitune présomptiondu caractère déclaratoire des règles particulières par
rapport auxrègles générales. n d'autres termes, et faute d'intention contraire,
on doit considérer qu'une notion juridique utilisée sans autre précision par une
règle spéciale renvoàsa définition en droit international général. C'est ainsi
que les traités s'inscrit ormaiementdans le contextedu droit coutumier
préexistantn.
58 B, in this respect, forexample,the referencesgiven inOvvenheim'sInternational Law,
W.&., p. 1275,footnote21.
59 Amoco International FinanceCorp. v. the IslamicRevublicof Iran. et al., Award No.
310-56-3 dated 14 July 1987 (Virally,Chairman), revrinted in 15 Iran-U.S. Clairns
Tribunal Revorts,1987-1, . 189,at p. 222, andEsvhahanianv. BankTeiarat,Award No.
31-157-2 dated 29 March 1983 (Bellet, Chairman), revrinted in 2 Iran-U.S. Claims
Tribunal Revorts, 1983-1,p. 157,at p. 161. also, in this respect, Villiger,:M.E.
&.. p. 270:
"...if the termsof ale are not defined in their context, the crule may
add such definition.f the written rule is too generalor phrased ambiguously,
thecustomary rulemaysupply aplausiblemeaningfor the terms. Thecustomary
rulemayadditionallyfil1lacunaein theconventionalrules".
Similarly, the following passage, which is also worth reproducing in extenso,may be
foundinODDenheim'IsnternationalLaw,ou. cit., atp. 1275:
"Account is taken of any relevant rules of international law not only as
constituting the background against which the treaty's provisions must be
viewed, but in the presumption that the parties intend something not
inconsistentwith generally recognisedprincsf international l."..interpreted in the light of customary international law. As the Committee of
Foreign Relations of the U.S. Senate stated in a report issued in connection with
the FCN treaty entered into between the United States and China:
"The treaty to bethus negotiated willbe based upon the principles
of international law gad practice as reflected in modern
international procedures ."
Much the same point has been made by one of the chief negotiators of FCN
treaties at theime, Robert Wilson. He writes:
"Even without express reference to the law, it would still be t...
that 'treaty com itments are to be construed in the light of
international law' ."
And, in an observation which underscores the lack of merit in the jurisdictional
objection raised by the United States in this case, Wilsonadds:
"Provisions whichentrust to the International Court of Justice the
office of final, authoritative interpreter should provide safegu
against any party state's arbitrary or unreasonable constructio.s5
2.18 It was, therefore, for the strict purpose of the proper
interpretation of the clauses of the 1955reaty that Iran's Memorial referred to
general international law and the U.N. Charter, in accordance with the
indications and suggestions unanimously put forward in both doctrine and
jurisprudence. Consequently, the Court clearly has fulljurisdiction in the present
case to apply any relevantrule of international law (includinggeneral custom, the
U.N. Charter and other treaties whichare binding upon the Parties), to thextent
that such application facilitates the interpretation of the provisions of the Treaty
of Arnity and, in particular, makes it possible to "ascertain the meaning of
undefined terms in its text".
60 a, U.S. Preliminary Objection, Exhibi3.56, p.
61 Wilson, R. R.: "Property-Protection Provisions in United Iran's Memorial,l Treaties",
AmericanJournal of International Law, Vol. 45, 1951, at p. 105.
Exhibit 97.
Ibid.
62 -CHAPTERIII JURISDICTIONOF THE COURTAND ROLE OF THE
SECURITYCOUNCIL
2.19 At various points of its pleading of 16 December 1993,the
United States puts fonvard another argument allegedly militating against the
jurisdiction of the Court. According to the United States, by seisingthe Court of
the present case, Iran is trying to obtain from the Court something that it did not
succeed in obtaining from the Security Councilin 1987and 1988:a condemnation
of the United States for having participated in the Iran-Iraq war on the side of
~ra~~~.With this aim in mind, Iran has allegedly dressed up as breaches of the
1955Treaty the same allegations which it had already made unsuccessfullyin the
past in the Security Council against the United States, and this is "a callous
manipulation of the Treaty or the To this is added another argument:
that the fact that four years elapsed between the tirne when the incidents
occurred and the date on which Iran filed its Application suggests that Iran "did
not contemplate that the 1955Treaty had any relation to the events at issue in
these proceedings65".
2.20 It is in fact very difficultto understand what such arguments
might mean. And it is even more difficultto grasp the legal consequences which,
according to the United States, should flowfrom the so-called ttmanipulation"or
"belated submission"ofwhich Iran isallegedlyguilty.
2.21 It could quite sirnplybe a different way of stating the same
objection as has been refuted above: namely, that Iran's claimin fact raises issues
relating to a violation by the United States of theules of theU.N. Charter and
general international law (which are issues outside the Court'sjurisdiction) and
not a breach of the 1955'Treaty (with respect to which it hasjurisdiction). Itis of
course unnecessary to return to this point, especiallynce, in the comingpages, it
willbe necessary to discussfurther the interpretation of the relevant provisions of
?héTreaty ofArnity.
63 &, U.S.PreliminaryObjection,p. 2, and the whole of PartIII, Chapter1,pp. 34, gtW..
64 M.,p.38,para.3.12.
65 -bid. 2.22 But perhaps the argument should be understood differently.
Perhaps the United States wants to argue along the following lines: at the time of
the events, the facts which are at issue (namely, the destruction of the Iranian oil
platforms by the United States) had been submitted to the Security Council by
Iran itself, who accused the United States of a violation of the U.N. Charter but
did not obtain from the Council the adoption of the desired measures; and, given
that the Security Councildid not accept these accusations at the tirne, Iran cannot
now turn to the Court to obtain from it something whichthe Security Councilhad
refused it. In sum, the United States sees Iran's claim as in substance the
equivalent of an appeal. before the Court against a decision of the Security
66
Council which wasunfavourable for Iran .
2.23 If the United States is somehow trying to rely on the
principle of ne bis in idem, this is clearly an outlandish theory which has no legal
basis. First and foremost, at no time did Iran fomallyrequest the Security Council
to condemn the U.S. actions. Accordingly,the Security Council took no decision
whatsoever on this subjeict;and no r_s judicata, which might place restrictions
upon the findingsof the International Court, has been created with respect to the
facts at issue67. However, it must be mentioned, in addition, that even if the
Security Council had taken a position, this would not have prevented the Court
from ruling upon Iran's claims,so long as:
66 It maybenoted that asimilarargumentwasusedby the United States against the Court's
jurisdictionin the Nicaragua case.It is well known that the Court rejected that argument
after sumrnarisingit as follows: "SinceNicaragua's Application in effecatsksthe Court
for a judgment in ailateriai respects identicai to thedecision which the Security
Council didnottake, it arnountsto an appeaito the Court from an adverse consideration
in the Security Council"(Military and PararnilitarvActivities in andagainst Nicaragua
[Nicaraguav. United Statesof America). Jurisdiction andAdrnissibilitv,Judement. I.C.J.
Reports1984,pp. 432,ga., para. 91am.).
67 Itgoes without saying that, since the Security Council took nodecisionwith respect to
the U.S. actions against Iran in 1987 and 1988, tis no need to mention here the
question whichrisesin the event adecisionis adopted. Asiswell known,An. 103ofthe
U.N. Charter gives pnority to obligations arising outof the Charter (including the
obligationto comply with Security Council decis)verobligations arising outof any
other internationalaty. It is also well-known that the quis the subjectof much
debateat present, in particularsincethe Court'sOrderof 14April 1992 in the Lockerbie
case (Case Concerning Questions of Intemretationand Application of the 1971
Montreai Convention Arising from the Aeriai Incidentat Lockerbie. Provisionai
Measures, Order of 14A~rii 1992. I.C.J. Reports 1992,p. 15). aiso, Bedjaoui, M.:
"Ducontrôlede la légalité des actes du ConseSeécurité"i,n Nouveaux Itinéraires en
Droit. Hommage à FrancoisRigaux,Bruylant,Brussels,1993,pp. 69-109;andBowett,D.
W.: "The Impactof the Security Council Decisioon Dispute Settlement Procedures",
EuropeanJournalof International Law,Vol. 5 (1994),No. 1,pp. 89-101. "[tlhe Court isnot asked to Saythat the Security Council was wrong
in'its decision, nor that there was anything inconsistent with lawin
the way in which the members of the Council employed their right
to vote. The Court is asked to pass judgment on certain legal
aspects of a situation which has also been considered by the
Security Council, a procedure which is entirely consonant y&h its
position asthe principal judicialorgan ofthe United Nations .
2.24 Since the matter of the destruction of the Iranian platforms
is no longer on the Security Council'sagenda, it is clear that the question of
litispendence, &., whether or not the Court may examine a dispute of which the
Security Councilis also seised, cannot even arise in the present case6'. Without
wanting to enter into a discussionwhichwould be of no relevance here, it should
be remembered that according to the Court's consistent jurisprudence, there is
nothing whatsoever to prevent the Court and the Security Council from dealing
1 with the same dispute at the same time. As the Court has stressed very clearly,
for example in 1984~',and as it repeated in 1993:
"[tlhe Council has functions of a political nature assigned to it,
whereas the Court exercises purely judicial functions. Both organs
can therefore perform their seqrate but complementary functions
with respect to the same events ".
Moreover, the Court has also recalled that:
"..as the Corfu Channel case (I.C.J. Reports 1949,p. 4) shows,the
Court has never shied away from a case brought before it merely
68 MilitarvandPararnilitarvActivitiesin andagainstNicaragua(Nicaraguav. UnitedStates
of America), Jurisdictionandnissibilitv.Judgment. I.C.J. Re~orts1984, p. 436, para.
98.
69 On this subject,whichhas been muchdiscuss%,, for example,Rosenne,S.: TheLaw
and Practiceof the InternationalCourt,inusNijhoff Publishers, The Hague, 1985,
pp. 87 g m.; Elsen, T.J.H.: W~endence betweenthe International Court of Justice
and theSecuritvCouncil, T.M.C. Asser Institut, The Hague,1988, ppg m.. %,
also, thereferencesgivenin footnoteabove.
70 Militarvand ParamilitarvActivitiesin andagainstNicaragua, (Nicaraguav. United States
of America).Jurisdictionand Admissibilitv,Judgment.I.C.J. Reportsp.435, para.
95. &, also, United StatesDiDiornaticand ConsularStaff inTehran, Judgment, I.C.J.
Reports 1980,pp.21,g a..
71
A~~licationof the Convention on the Preventionand Punishment of the Crime of
Genocide(Bosniaand Herzegovinav. Yugoslavia(SerbiaandMontenegro)),Orderof 8
April 1993,I.C.J. Re~orts1993,p. 19. because it had political im ations or because it involvedserious
elements of the use of forceI .
2.25 This reminder of the difference between the functions of the
two organs - political for the Council and judicial for the Court - allows a
subsidiary argument put forward by the United States to be disposed of at the
same time -an argument, however, which,once again, completely failsto identify
the legal consequences which should flow from it. Thus, in its Preliminary
Objection, the United States accuses Iran of never having claimed before the
Security Councilthat the U.S. actions in 1987and 1988were breaches of the 1955
~reaty~~. The answer is clear and simple: there is no reason why Iran should
have relied on the 1955Treaty before an organ like the Security Council, whose
function ("of a political nature", as the Court stressed) is to ensure the
maintenance and establishment of peace in application of the principles of the
Charter, and not to ensure the correct interpretation and proper application of
various bilateral treaties such as the Treaty of Arnity. On the other hand, it is
perfectly logicalfor that Treaty to be relied on before the Court, since the Court
is a judicial organ of the United Nations which, under Article 38, paragraph 1,of
the Statute of the Court, is called upon to settle disputes "in accordance with
international law" This is al1the more so in light of the fact that the Treaty itself
gives the Court, and that organ alone, the task of settling disputes relating to its
interpretation and application. In other words, the two Parties, in advance and by
common agreement, designated the Court as the organ having exclusive
jurisdiction (failing any subsequent agreement to the contrary) to settle their
disputes concerning the Treaty: it is therefore most astonishing that the United
States should now complain that Iran did not rely on the 1955Treaty before the
SecurityCouncil.
2.26 Given the different roles of the Security Council and the
Court, there was nothing irregular about Iran's decision to file its Application in
1992. Indeed, as has already been seen, the destruction of the oilplatforms bythe
United States in 1987 and 1988 was the culmination of an increasingly hostile
attitude that the United States adopted towards Iran in the context of the Iran-
Iraq war. Yet the Secretary-General's Report under Resolution 598 attributing
72 MilitarvandararnilitavctivitiesinandagainstNicaragua(Nicaraguav. UnitedStates
ofAmerica).JurisdictionandAdmissibilitv,Judgment,I.C.J. Reports1984, p. 435, para.
96.
73 U.S. PreliminaryObjection,pp.gtm., paras.3.06,gtm..responsibility for that conflict on Iraq -which was being assisted by the United
States -was only issued in December 1991. Thereafter, as the United States
freely admits, Iran attempted to negotiate the dispute but was flatly rebuffedi4.
In these circumstances, it was entirely appropriate for Iran to file its Application
in November 1992after the attempt at negotiations failed.
2.27 It is apparent, and the United States has not contested the
fact, that Iran's Application fully complied with the Statute and Rules of Court
and with the relevant provisions of Article XXI(2) of the Treaty of Amity, the
compromissory clause. None of these instruments places any time-limit on the
right of a party to institute proceedings before the Court. Indeed, in the
circumstances enumerated above, a four-year time lag was in no way
unrea~onable~~. In filing itsApplication, therefore, Iran was doing no more than
exercising a right to which it was entitled. As the the Court held in the Corfu
Channel case, it "cannot ... hold to be irregular a proceeding which is not
precluded by any provision [ofthe Statute and ~ules]~~".
2.28 In conclusion, the Court's jurisdiction with respect to the
present dispute cannot be questioned on the basis of an alleged conflict with the
74 m., p. 36, paras. 3.07-3.08.
If referenceis madeto the caseconcemingCertain PhosphateLandsin Nauru, where a
75
twenty-year delayin the institution of proceedingsby Nauruwasnot deemedexcessive, it
will be seenthat the passageof a merefour yearsin this case wasvery modest inview of
the circumstancesandthe stateof relationsbetween the twoParties. AstheCourt stated
inthe Nauru case, "giventhe natureoftherelationsbetweenAustraiiaandNauru, aswell
as the steps thus taken, Nauru's Applicationwas not rendered inadmissibleby the
passage of time". Certain Phosphate Landsin Nauru (Nauru v.stralia). Jud~ment,
Jurisdiction andAdmissibilitv.26June 1992,p. 16.
76 Corfi Channel. PreliminarvObiections, Judament,1948, I.C.J. Reports 1947-1948,at p.
28. The situation which arose thus resembles to some degree the 1956 arbitration
between the United Kingdom and Greece which followed the 1953 judgment in the
Ambatielos case. In that arbitration, the United Kingdom advanced a procedural
objectionimilar to that raised by the United States in the present caseby contending
that the Greek claim ought tobe rejected by the Commissionof Arbitration because
Greecehadbelatedly introduced an1886Anglo-Greek commercialtreatyasthe basisof
its legai action. The Commission lookedat the conductof Greeceand found that the
changeof legaibasis for its actioncouldbe explained "as being due tothe anxietyof the
GreekGovernmentto submit the dispute toarbitration". (Ambatielos(GreeceIUnited
Kingdom),6 March 1956, Reportsof Intemationai Arbitrai Awards, Vol. XII,p. 91, at
pp. 103,a g.). Sincethe 1886Treatywas theappropriatelegaiinstrument ailowing a
settlementby arbitration, the Commissionrejected theU.K. objectionandheldthat, "the
Greek Government, by changing the legal basis of its action iner to obtain a
settlementof thedisputeby arbitration,onlyexercisedthe rightto whichit wasentitled".cornpetence of the Security Council or the fact that the Application was filed in
1992,four years after the events in question occurred. PARTIII
ANALYSISOFTHERELEVANTPROVISIONSOF
THETREATYOFAMITY
3.01 It now remains to take into consideration the various
remarks by the United States, according to which Iran's claims concern matters
which -whatever Iran may argue -do not fa11within any of the provisions of the
1955Treaty. In particular, the United States argues that the three articles of the
Treaty which are relied upon in Iran's Memorial -Articles 1,IV(1) and X(1) -
impose upon the Parties obligations of a strictly commercial nature, which have
nothing to do with events "...involvinghostile encounters between armed forces of
the two Parties in the context of an ongoingarmed ~onflict'~".
3.02 It is clear that the two Parties are submitting to the Court
twovery different - even completelycontrary -interpretations of the provisionsof
the Treaty. However, in order to respond to the U. S. Preliminary Objection to
jurisdiction, there is no need for Iran toturn in detail to its analysisof the U. S.
conduct and to its demonstration -already made in its Memorial - that such
conduct was in breach of the 1955Treaty: these are matters upon whichthe Court
willhave to decide when it examines the merits of the present dispute. Instead, it
is both necessary and sufficient, for the moment, to examine briefly once again
the above-mentioned provisions,with the sole aim of confirming that, contrary to
what the United States alleges, the present case does indeed involve their
interpretation and application.
3.03 In determining the meaning of conventional provisions, it is
of course necessary to apply the principles relating to the interpretation of
international-treaties. It is unanimously acknowledged that these principles are
codified in Articles 31 and 32 of the 1969 Vienna Convention on the Law of
Treaties. As has already been pointed out above, such interpretation must be
made in the light of general international law, the U.N. Charter, and the other
treaties in force between the Parties: there is no need here to repeat this
indisputable truth7'. The requirements of the "general rule of interpretation"
(Article 31) should also be remembered: each provision of the treaty must be
interpretated in good faith, in accordance with the ordinary meaning to be given
77 U.S.PrelirninaryObjection, p.39, para. 3.14.
78 &, Part II, ChapterII, above. tothe terms of the treaty in their context and in the lightof its object and purpose.
On the other hand, the travaux préparatoires of the treaty and the circumstances
of its conclusion may be used only as a "supplementary means of interpretation",
-9.e with the sole aim of either confirmingthe interpretation as it results from the
application of the criteria mentioned in Article 31, or determining the meaning
when the application of those criteria leaves the meaning ambiguous or obscure,
or leads to a result whichismanifestlyabsurd or unreasonable (Article 32).
3.04 In its Memorial, it wason these indisputable principles that
Iran based its interpretation of the provisions of the 1955Treaty upon which it
relies, maintaining that they have been breached by the United States. In
particular, it must again be stressed that it is true that Iran made much of the
object and purpose of the 1955 Treaty, which it identified by referring in
particular to the Preamble of the Treaty, in which the aim "...ofemphasising the
friendly relations which have long prevailed between their peoples" was explicitly
highlighted. But Iran has not asked the Court to condemn the United States for
havingbreached the object and purpose of the Treaty, independent of its breach
of the above-mentioned provisions of the Treaty. To the contrary, Iran has
requested. the Court to adjudge that the U.S. actions in 1987 and 1988 were
specific breaches of three provisions of the Treaty of Amity, which cannot be
correctly interpreted without taking into consideration the object and purpose of
the Treaty in question.
3.05 The United States is therefore completely mistaken when it
assimilates the present Iranian claim to Nicaragua'sclaim based on the Treaty of
Amity between Nicaragua and the United States in the Militarv and Paramilitarv
Activities case7'. As Iran's Memorial had already fully clarified (whereas in its
pleading of 16 December 1993the United States maintains complete silence on
this essential-subject), Nicaragua had argued at the time that the United States
had directly breached the object and purpose of the Treaty of Amity, over and
above anyviolation of its specifictermsgO. In the present case, onthe other hand,
Iran has made reference to the object and purpose of the Treaty of Amity onlyin
order to determine the exact meaning of the various provisions of the Treaty of
Amity upon which itrelies.
79 U.S. PreliminarObjection, p.1,et., paras.3.19et..
80 Iran'sMemorial,PartIII,Chapte1,SectionB, pp.70et.. 3.06 It should moreover be remembered that in many cases
international tribunals have used the preamble of a treaty iner to identifj its
object and purpose and to interpret its provisions inthat light. Thus, to mention
onlytwo examples, in the Ri~htsof Nationals of the United States of America in
Morocco case, the International Court of Justice stated that, inr to interpret
the terms of the 1906 Act of Algeria, it was necessary to take into account the
purposes of that treaty, as set forth in its preamble81. Similarly,in its Judgment
of 21 December 1962in the jurisdictional phase of the South West Africa case,
the Court referred to the preamble in order to identifj the legal nature and
interpretation of South Africa'smandate for South Westfricag2.
CHAPTER1 INTERPRETATION OF ARTICLE 1: LACK OF
SUBSTANCEIN THEU. S.THEORY
3.07 In its Preliminary Objection the United States has protested
against Iran'sreliance upon Articleof the 1955Treaty, according to which:
"There shall be firm and enduring peace and sincere friendship
between the United States ofAmerica and Iran".
Iran did indeed argue in its Memorial that this provision, whose wording suffers
no ambiguity in view of the ordinary meaning of the terms used, lays down
without any doubt obligations for the contracting Parties: obligations to conduct
themselves in a peaceful manner in their reciprocal relations, in compliance with
the principles governing friendly relations between States. Iran also argued that
the conduct required or prohibited by this provision may be easily identified by
using the relevant principles of general international law and of the United
Nations Charter, i.e b.y,using the most usual and most unanimously accepted
method in order to "ascertain the meaning of undefined terms" appearing in the
text ofa treaty. It may also be remembered that in the Amoco International
Finance case the Iran-U.S. Claims Tribunal did not restrict itself to making
general reference to the relevance of this method: in addition, it applied it in a
very noteworthy manner, by referring to the principles of international law
81 Rights of Nationais of the United States of America in Morocco. Judgment. I.C.J.
Re~ort1952,pp.196,W..
82 South West Africa, Preliminarv Obiections. Judgment. I.1962pp.p330,gt
m.. &, aiso, th1984Judgment in the Nicaragua case{Militan and Paramilitan
Activities inand against Nicaragua (Nicaraguav. United Statesof America), Jurisdiction
andAdmissibility.Judgment, I.C.J. 1984p.428).relating to expropriation in order to determine the meaning of Article IV(2) of
the 1955 ~reaty'~.
3.08 The United States challenges this analysishead-on; but it
does so without attributing any other meaning whatsoever to Article 1. In
substance, for the United States, this provision is tamquam non scripta since it
allegedly gives rise to no obligation for the Parties in addition to those flowing
from the other articles of the 1955Treaty: thus, it is argued that it quite simply
has no legaleffect of any kind.
3.09 In particular, the United States does not dispute the
accuracy of Iran's observations concerning the fact that most of the treaties of
amity concluded by the United States do not contain a provision analogous to
Article 1 of the Treaty with Iran, but simply make reference to peace and
friendship only in their respective preambles. Nor does the United States deny
that only in a very smallnumber of those treaties (and in particular in the case at
issue here) is there a reference to peace and friendly relations not only in the
preamble, but in the body of the treaty itself,and that it is spelt out there in words
which make clear the mandatory nature of the provision ("there &dJ be"). The
United States even acknowledges that such claims "serve to emphasize the
essentially friendly character of the treatyg4", just as it had previously admitted
that they are designed to express the existence of "close political relations"
between the contracting partiesg5. But despite al1this - and in a remarkably self-
contradictory fashion - the United States persists in maintaining that such a
provision in fact has no legal value or effect, and adds nothing to the obligations
otherwise resulting from the Treaty. In other words, the mandatory scope of a
treaty would be totally unaffected, whether or not it contains a clause stating that
the relations between the parties must be peaceful and friendly.
3.10 This theory is not onlywrong: itis,quite frankly,astounding.
'First,no serious evidence has been provided to show that the Parties negotiated
and adopted Article 1with the aim of ..sayingnothing! Second, it ignores one of
83 AmocoInternational FinanceCorp. v. The IslamicRevublicof Iran. et al., AwardNo.
310-56-3dated 14 July 1987 (Virally, Chairman), revrinted 15 Iran-U.S. Claims
TribunalRevons,1987-11p,.223,para.115.
84 U.S. PreliminaryObjection,p43,para.3.22.
85 &, paras3.14 and 3.15below, and Exhibi10.the most classic rules of interpretation of international treaties: the rule of
effectiveness or "effet utile"(ut resagisvaleat quam pereat).
3.11 With respect to the first aspect, the United States essentially
relies upon the absence of any declarations or statements of position by the U.S.
side during the ratification process of the four treaties of amitywhich contain the
clause under discussion, which might show that the clause was intended to be
mandatory.
3.12 This argument is quite obviously devoid of any relevance,
not to Sayfrankiy absurd. First, it presupposes that a treaty provision should be
interpreted in the light of a single party's perception of it at the time of
ratification. Next, the argument in question tries to make elements which
arguably might fa11within the history of the treaty and the circumstances of its
conclusion prevail over the clear terms of the treaty: yet this is excluded by
Articles 31 and 32 of the Vienna Convention. Finally,the United States has not
demonstrated in any way that the U.S. authorities at the time excluded the
possibility of any legal effect resulting from Article1:al1that can be concluded
from the alleged facts is that the U.S. officiaiswho were responsible at the time
did not Saythat it was a mandatory provision. But it is quite obvious that such
silence (since it was indeed a silence) can prove absolutely nothing whatsoever;
stilllesscan it be relied upon against Iran and be binding upon Iran.
3.13 In any event, it is instructive to examine how the U.S. State
Department viewed the inclusion of a similar provision in a 1946 FCN Treaty
between the United States and China. Unlike the "standard form of treaty,
Article 1, paragraph 1, of the U.S. - China Treaty contains a specific provision
stating that "[Tlhere shall be constant peace and firm and lasting friendship
between the Republic of China and the United States of ~rnerica~~''.As can be
seen, this is much the same language as is used in Article 1of the 1955Treaty of
Amitywith Iran.
3.14 In the course of the discussions whichled up to the signing
of the U.S. -China treaty, the State Department forwarded a Memorandum to
the U.S. Embassy at Chungkingfor use in the negotiationsg7. The Memorandum
86 A copyof the relevaextractfrom theU.S.-ChinaTreatyis attachedin Exhibit11.
87 Exhibit10.set forth a detailed analysisof the provisions of the treaty including the following
with respect to Article1,paragraph 1:
"Par. 1. Although there have been comparable provisions in
many of the older treaties of the United States and in some recent
executive agreements, it has not been customary to include such a
paragraph as this one in treaties of friendship, commerce and
navigation to which the United States is a Party. However, the
inclusion of the paranraph is appropriate in view &the close
political relations between China and the United Statesbb."
3.15 This analysis directly contradicts the U.S. thesis that the
inclusion of such provisions in the body of FCN treaties made no difference.
Clearly, the United States considered the provision "appropriate" for policy
reasons: i.e i.o,rder to emphasise and giveeffect to the close political relations
between the two countries.
3.16 Exactly the same considerations underlay the Treaty of
Amity between Iran and the United States. Since it must be presumed that the
StateDepartment was not in the habit of includingprovisionsof such importance
in treaties for no particularpurpose, and given that it was the intention of the
United States to strengthen its ties with Iran at the time the Treaty was signed,the
conclusion is clear that the United States wished to emphasise its close political
relations with Iran at a particularly sensitive time when there was a risk that Iran
would fa11out of the Western orbit. This political intent was thus translated into
the legal commitment of peace and friendshipcontained in Article I~'.
3.17 Asfor the studies by U.S. lawyers,which do not identify the
legal effects of Article and have no officialcharacter, it is even more absurd to
try to base upon them any argument whatsoever which might be relied upon
against Iran or used before the Court inorder to interpret the 1955~reat~".
88 W. (emphasisadded).
89 &, Schwarzenberger.G.: InternationalLawas Avvliedbv International Courtsand
Tribunals, Stevensons, London, 1957,atp. 517wheretheauthordiscussesthe
functionaiaspectof interpretationbasedon theobjectthatthe parties intendedto fulfil
in regulating their relations ina treaty.
90 U.S. Preliminary Objection,p. 45, paras.etsea.. The various cornmentaries and
comparative tables on other FCN treaties producedby the United States in its
Preliminary Objectiondo not alter the picture. It ise that many FCN treaties
entered intoby the United Statesin the post-war period were broadlyut this
does not meanthat they wereidenticalor gave rise to the sarnerights or obligationsin
eachinstance. Asthe note tothecomparativetableon FCN treatiesngatExhibit 3.18 There is also no sense in trying to interpret Article 1of the
1955 Treaty in the light of the interpretation which the International Court of
Justice put upon another Treaty of Arnity (between the United States and
Nicaragua) which does not contain an analogous provision91. The United States
isquite clearlyshort of serious arguments ifit has to put forwardarguments which
are so obviously lackingin substance.
3.19 Moreover, it should be noted that in its Preliminary
Objection the United States has completely distorted the thinking of the Court as
expressed in its 1986Judgment in the Nicara~ua case. It is true that the Court did
make a distinctionbetween "the broad category of unfriendly acts,and the narrow
category of acts tending to defeat the object and purpose of the ~reaty~~". It is
also true that the Court stated that "[tlhat object and purpose is the effective
implementation of friendship in the specific fieldsprovided for in the Treaty, not
friendship in a vague general sensegb. But despite this strict approach, the Court
did not hesitate in the slightestto hold that certain acts involvingthe use of force-
although not explicitlycovered by the terms of the Treaty -were in direct and
clear contradiction with the Treaty's object and purpose. Thus, it clearly stated
that -
"...there are certain activities of the United States whichare such as
to undermine the whole spirit of a bilateral agreement directed to
sponsoring friendship between the two States parties to it. These
are: the direct attacks on ports, oil installations, etc ...;and the
mining of Nicaraguan ports .... Any action less calculated to serve
the purpose of 'strengthening the bonds of peace and friendship
traditionally existingbetween' the Pa 4411,stated in the Preamble of
the Treaty, could hardly be imagined .
3.20 It is therefore clear that, in the Court's view, the general
principle of international law pacta sunt sevanda, applied to the Treaty, carries
-3totheU.S. PreliminaryObjectioncautions,not ailvariationsintheindividualtreaties
werecompiledbecause"inail likelihood[this] wouldnoteliminatetheneedforcareful
textuaicomparisonwhenclosequestionswereatissue".
91 W., p.44, para.3.24.
92 MilitarvandParamilitarActivitiesinandagainstNicaragua(Nicaragv. UnitedStates
of America),Merits,Judgment.I.C.J.Re~orts1986,p. 137,para.273.
93 -bid.
94 W., p. 138,para.275.with it prohibitions which go beyond what is explicitlyprovided by the various
terms of the Treaty: such prohibitions cover, in particular, conduct which is in
direct contradiction with the object andurpose of the Treaty. But this is not all:
when in 1986 the Court based its reasoning on the object and purpose of the
Treaty of Amitybetween the United Statesand Nicaragua, this was for the simple
reason that the Treaty contained no provision similar to Article 1 of the U.S.-
Iran Treaty and the Court was ernpowered to decide the matter on the basis of
custornary international law by virtue of the parties' adherence to the Court's
Optional Clause. However, the Court explicitlyallowed for cases where there
would be no need to rely exclusivelyon the object and purpose of the Treaty in
order to identify the prohibited unfriendly actLe. ,here the Treaty in question
provides in its own provisions for the duty to abstain from any act toward the
other party which could be classified as an unfriendly act. Indeed, the Court
adrnitted devlano that:
"[slucha duty might of course be expresslystipulated in a t$p.ty, or
rnighteven emerge as a necessary implicationfrom the text ,
and this isprecisely the case with respect to the 1955Treaty between Iran and the
United States, in viewof Articleof the Treaty.
SEC~OA N ThePrincipleofEffectiveness("EffetUtile")
3.21 It is time now to turn to the second aspect mentioned above.
Ashas already been noted, the U.S. theory istantamount to a deletion of Article 1
of the text of the Treaty:the article is devoid of al1legal effect since it givesrise to
no obligations for the Parties. But this theory is not only unsupported by any
evidence, as has just been pointed out: it is also in flagrant contradiction of the
principle of interpretation referred to as effectiveness (or "effet utile").
3.22 In 1926, for example, the United States had put forward a
sirnilar theory before a British-American Claims Commission, concerning a
provision of a treaty which it considered as "a nominal provision not intended to
have any definite application". The arbitrator responded as follows:
"We can not agree to such interpretation. Nothing is better settled,
as a canon of interpretation inl1systemsof law, than that a clause
must be so interpreted as to give it a rneaning rather than so as to
deprive it of meaning. We are not asked to choose between possible meanings. We are asked to reject the apparent meaning
a% to hold that the provision has no meaning. This we cannot do
S.. .(1
The International Court of Justice has followed similarreasoning, for example in
the Corfu Channel case,when it stated that:
"[ilt would indeed be incompatible with the generally accepted
rules of interpretation to admit that a provision of this sort
occurfwg in a-special agreement should bêdevoid of purport or
effect ,
and, in order to emphasise the consistencyof the jurisprudence in this regard, It
cited the famous obiter dictum of the Permanent Court of International Justice in
itsOrder of 19August 1929inthe Free Zones case, as follows:
"...in case of doubt, the clauses oa special agreement by which a
dispute is referred to the Court must, if it does not involve doing
violence to their terms, be construed in a nner enabling the
clauses themselves to have appropriate effectsIl .
3.23 This rule of interpretation, which has been widelyapproved
in doctrine9', is generally considered as a corollary of the principle of good faith
in treaty interpretation. Indeed, it is for this reason that it has not been
specificallyspelt out in the 1969 Vienna Convention, as the International Law
Commission explicitlymentioned in its 1966 ~e~ort~~~.It is true, however, that
the principle must be used with caution,because of the limits whichare put upon
it. The Court indicated these limits in its 1950 Advisory Opinion in the
Interpretation of PeaceTreaties case,where the followingisstressed:
96 Cawga IndiansClaim,22January1926,AmericanJournal of International Law, Vol2.0,
1926,p. 587.
97 Corfu Channel.Merits, Judgment,I.C.J. Re~orts1949,p. 24.
98 Free Zonesof Uuuer Savov andthe Districtof Gex. Order of 19 August 1929. P.C.I.J.,
SeriesA, No. 22p. 13. With respectto theseextractsfrom decisions of the Permanent
Court and the presentCourt, it is appropriate to cite made bySir Gerald
Fitzmauricein: The Law and Procedureof the International Courtof Justice, Grotius,
Cambridge, 1986, Vol. 1, p. 60, footnote1: "Althoughthesepassages related to a speciai
agreement between two parties to a disputfeor its referenceto, and adjudicationby, the
Court, the principleinvolvedis quitegenerai".
99 &, for exarnple,Fitzmaurice,SirGera.d&., pp. 59-61; Lord McNair:The Lawof
Treaties, Clarendon Press,Oxford, 1961,pp. 383-385;Yasseena.. a.:pp. 71-75;
and de Visscher,Ca.,a. pp. 89-92.
100 Yearbook of the Internatl awCommission,1966,Vol. II, pp. g3a. "The principle of interpretation expressed in the maxim: Ut res
mapis valeat quam Dereat, often referred to as the rule of
effectiveness, cannot justify the Court in attributing to the
provisions for the settlement of disputes in the Peace Tr eêY a ns
meaning which ..would be contrary to their letter and spirit.
3.24 It is clear that in the present case the limit mentioned by the
Court in 1950 does not come into play, since Iran's interpretation of Article 1of
the 1955 Treaty is perfectly in harmony with the letter and the spirit of the
provision, where it is explicitlyindicated that there are obligations ("there shall
be") concerning the Parties' compliance with the rules relating to peaceful and
friendly relations between the States. In short, there is no question that the
interpretation advanced by Iran runs contrary to the letter and spirit of the
Treaty. Thus, the U.S. theory, according to which Article 1has no legal effect,
must be held to be unacceptable because it contradicts the ordinary meaning of
the terms contained in Article 1 and is tantamount "to rejectling] the apparent
meaning and to hold[ing]that the provisionhas no meaning 1021.
3.25 The truth of the matter is that in its Preliminary Objection
the United States is insinuating that it is Iran's interpretation of Article 1 that
makes this provision unnecessary. What was the use of introducing in the 1955
Treaty "some sort of substitute for or supplement to the rules of armed conflict
and the use of force contained in the U.N. Charter, the laws of war and general
international law"? Indeed, according to the United States, "there was no
conceivable need for such a substitute in a commercial treaty since these general
IO311
rules alreadywere applicable to the two parties .
3.26 This objection had already been taken into account and
refuted in Iran's Memorial, in the light of highly relevant international
jurisprudence104; and it is astonishing that the United States has not said one
word in this respect.Thus, the International Court of Justice has found that there
'are many international treaties which oblige the parties thereto to comply with
101 Interuretatiof PeaceTreaties withBulaaria,HungarvandRomania.Second Phase,
AdvisorvOpinion,I.C.J.Reports1950,p. 229.
102 &, para.3.22, above.
103 U.S. PreliminaObjection,p.46, para.3.28.
104 Iran'sMemoriai,p. 63, para.2.&,. aiso,p.75, para.3.18.rules of international lawwhich are already binding upon them, regardless of the
treaty. And the Court has emphasised that one of the reasons which may lead to
the conclusion of a treaty containingsuch clauses, and one of the effects of such
clauses, may very well be that the mechanism for the settlement of disputes
arising out of the treaty is put at the service of the norms of international law
whichare incorporated in the treaty byexpressreference 105.
3.27 In the present case, this is indeed what happens as a
consequence of Article 1. Thus, disputes relating to the interpretation and
application of therules of general international law referred to in Article 1would
in themselves escape the Court's jurisdiction. But it is precisely because of the
incorporation of these rules in Article 1 that the Court may be seized of such
disputes, byvirtue of the compromissoryclause contained inArticle XXI(2).
SEC~O N The Position Taken by Iran in the Arnoco International
Finance Case
3.28 In its Preliminary Objection the United States has argued
that in another context Iran itself has admitted that acts involvingthe use of force
do not fa11within the scope of the 1955 Treaty. This assertion is based on a
passage from a pleading submitted by Iran to the Iran-U.S. ClaimsTribunal in the
Amoco International Finance case, which is presented separately by the United
States, in isolation from the claims as a whole which Iran submitted to the
Tribunal at the timelo6. However, a full examination of the position taken by
Iran in the Amoco International Finance case demonstrates the inaccuracy of the
U.S. allegation. Indeed, Iran had unsuccessfullyrequested the Tribunal to hold
that the 1955Treaty was no longer in force, and to this end had put forward a
whole series of arguments which were not upheld by the Tribunal. The main
argument was that the Treaty had been breached so fundamentally and
substantiallyby the United States, includingby acts involvingthe use of force, that
.ithad to be considered as defunct. In its pleadings, therefore, Iran was asserting
exactlythe opposite ofwhat the United States alleges itasserted.
105 Militarv and PararnilitarvActivitiesin and againstNicaragua (Nicaraguav. United States
ofAmerica)Merits, Judgment. I.C.J. Reports 1986,pp. 95-96, para. 178.
106 U.S. PreliminaryObjection,p. 46, para. 3.29. 3.29 For example, in the Respondents' Rebuttal of 5 February
1985,immediately after mentioning,inter alia,both Article 1of the Treaty and the
U.S. armed raid on Iranian territory on 24 April 1980 -the abortive "rescue"
operation -Iran had stated:
"The actions of the U.S. described above are clearly incompatible
with the view that the Treaty was stillin effect at the relevant time.
Alternatively, they mav be viewed as material breaches of the
Trea Q...givingrise to the rescissionthereof...lu'."
Again, and also very clearly, in the Respondents' -Supplemental Pleading of 1
October 1985,Iran had stated - again after mentioning the 1980 U.S. raid -that
"...the Treaty is unavailingsince the Treaty had been unilaterallybreached by the
United States 10811.
3.30 The fact that the Tribunal rejected Iran's position and held
that the 1955Treaty is still in force clearly implies that Iran is entitled to rely on
that Treaty today; and this is in any event not disputed by the United States. In
particular, Iran isindisputably entitled to rely on Articlewith respect to the U.S.
actions in 1987and 1988,since there is nothing in its prior conduct to constitute
an obstacle to the admissibility of this claim. Indeed, not only has Iran not
excluded the possibilityof acts involvingthe use of force falling withinthe scope
of Article 1: but on the contrary, it has expresslystated that acts of this kind may
be characterised as serious breaches of that provision.
SECTIO CN Conclusion as to the Court's Jurisdiction to Determine
whetherthe U.S.Actionsin 1987and 1988werea Breachof
Article1of the 1955Treatv
3.31 In conclusion, it is indisputable that Article 1 of the 1955
Treaty, interpreted in accordance with the ordinary meaning of its terms and in
the light of its context and of thebject and purpose of the Treaty, imposes upon
the contracting Parties the obligation to conduct themselves in compliance with
.the principles of general international law concerning peaceful and friendly
relations between the States. The violation of one of these principles is therefore
107 &, the extract from the Respondents' Rebuttai of 5 February 1985 in Amoco
International Financern. v. Iran et ai., Case No. 56 before the Iran-U.S. Claims
Tribunal, atpp. 2W. (emphasisadded). Exhibit 12.
108 &, the extract from Respondents' SupplementalPleadingof 10 Octobem.,98p. -
69. Exhibit13.an internationally illegal act on two grounds: from the point of view of both the
Treatyand general international law.
3.32 In its Application to the Court, Iran maintained that Article
1 has been breached by the United States, which used force against Iran in
violation of its obligations as laid down by both general international law and
Article 1 of the Treaty. This claim clearly concerns a dispute relating to the
interpretation and application of the 1955Treaty, and the Court therefore enjoys
fulljurisdiction to entertain it, in accordance with the compromissory clause set
out in ArticleXXI(2) of the Treaty of Amity.
CHAPTERII INTERPRETATION OF ARTICLEIV(11
3.33 In its Memorial, Iran argued that the U.S. actions in 1987
and 1988were breaches of Article IV(1) of the Treaty which, inter alia, requires
the Parties to "...accord fair and equitable treatment to the nationals and
companies of the other High Contracting Party, and to their property and
enterprises", and prohibits them from imposing "...unreasonable and
discriminatory measures that would impair their legallyacquired rights".
3.34 In its Preliminary Objection, the United States has used just
one argument to dispute the validity of Iran's position. Accordingto the United
States, ArticleIV(l), like other provisions of the Treaty, concerns only the rights
of nationals and companies of one Party in the territory of the other; in other
words, the purpose of Article IV(1) was not to prohibit al1injury to the nationals
and companies of the other Party regardless of location of their nationals and
companies 109.
3.35 It goes without sayingthat this theory requires an extremely
restrictive interpretation of the provision:thus, the obligations arising out of
Article IV(1) are allegedly subject to a territorial restriction, which does not
appear in the Article and which, therefore, cannot be justified by the text of the
Article. According to this interpretation,hen, the Treaty would not be breached
if,forexample, one Party seized goods belongingto nationals or companies of the
other Party whichwere situated in a third State or on the highseas: this wouldbe
astonishing, to say the least, and hardly compatible with the spirit of a treaty of
amity. Moreover, the U.S. pleading has not shown on the basis of what criteria or
109 U.S. PreliminaryObjection,47, W., paras.3.30, W..reasons such a restriction -which wasnot included inthe text by the Parties -must
be inferred. In contrast, Iran's Memorial has show that the absence of any
territorial condition is in line with the object and purpose of the Treaty and is
confirmed by an interpretation in its context.
3.36 The first remark that must be made with respect to this
difference in views is the following: it is quite obvious that the two Parties are
proposing to the Court two different interpretations of the same provision. In
other words, as the United States itself admits, there is indisputably a dispute
between the Parties concerning the interpretation of Article IV(1) and more
precisely, its scoperatione loci; and it is exactly this type of dispute that givesthe
Court jurisdiction under Article XXI(2) of the Treaty.
3.37 At this stage the above remark would suffice, since it makes
it clear that there is no remaining obstacle to prevent the Court from holding that
it has jurisdiction and deciding to move on to an examination of the merits of
Iran's claim. But it is appropriate nevertheless to stress here and now the
erroneous nature of the analysis proposed by the United States, since Article
IV(1) protects individual economic rights, as do other conventional provisions
with similar characteristics. In essence, Article IV(1) is very reminiscent of the
clauses contained in conventions on human rights which require the contracting
States to respect such rights for individuals within their jurisdiction. This is
usually interpreted as meaning that the States concerned are bound by the
obligations flowing from these conventions in respect not only of individuals
located in their territory, but also of those who may be subject to their power
outside the national territory (for example, in the high seas or on the premises of
an embassy abroad, etc). It must be noted that this point of view is widely
accepted in both doctrine and jurisprudence concerning human rightsllO, and
that it was particularly well explained in the very evocative position adopted by
the European Commission of Human Rights in a 1975 decision:
110 &, in this regard, Widdows, K.: "The Application of a Treaty to Nationalsof a Party
outside its Territory, in Internationaland ComparativeLaw Ouarterly, Vol. 35, 1986,pp.
729, W.; Meron, T.: Human Rights in Internai Strife: Their International Protection,
Grotius, Cambridge, 1987,pp. 40,; Condorelli, L.: "L'imputatào1'Etatd'un fait
internationalement illicite: solutions classiqueset nouvelles tendances", Recueil des
Cours de l'Académiede Droit International, Vol. 189,1984, VI, pgt%.1. For the
latest jurisprudence on this quesB,onDipla, H.: La responsabilité de1'Etatpour
violations desdroits de l'homme, A.Pedone, Paris, 1994,pgm..5, "...the High Contracting Parties are bound to secure the said rights
and freedoms to al1 persons under their actual authority and
responsibility,whether that authority is exercised within their own
territory or abroad...nationals of a State, includingregistered ships
and aircraft, are partly withinitsjurisdiction wherever they maybe,
and ..hat authorised agents of a State, including diplomatic or
consular agents and armed forces, not only remain under its
jurisdiction when abroad, but bring any other persons or property
'withinthe jurisdiction'of that State, tothe extent that they exercise
authority over such persons or property. Insofar as, by their acts or
omissions, theyaffe t s ch persons or property, the responsibilityof
the State is engagedCIlE.
3.38 In the light of the above, it may be concluded that the
general obligations of the High Contracting Parties provided for in Article IV(1)
of the 1955Treaty of Amity are applicable every time one of them isin a position
to exercise State powers over nationals of the other High Contracting Party or
over their goods, either inside or outside the national territory. The case of
armed forces of a State acting outside the national territory is particularly
relevant here.
3.39 It must be added, further, that in support of its theory the
United States relies upon the opinion expressed by the Court in its 1986
Judgment in the Nicaragua case concerning the corresponding provision in the
Treaty of Amity between the United States and Nicaragua. However, it puts
words in the Court's mouth which the Court was careful not to Say. Thus, it is
completely untrue to state that the Court "...expressly declined to accept
Nicaragua's assertion that the provision for 'equitable treatment' creates an
obligation on the part of the United States in regard to Nicaraguan citizens in
~icara~ua"~"; to the contra5 the Court "expresse[d]no opinion"on this subject
as it freely stressedtself'13. What is clear isthat at the jurisdictional phase of the
proceedings, the Court had no problem determining that a dispute over the
treaty's interpretation or application existed. In 1986,at the rnerits stage, it was
simply because the Court was not able to impute to the United States the acts in
issue (which had been committed by the Contras), that it did not need to decide
whether they were breaches of the Treaty of Arnity. On the other hand, in the
present case the conduct which is at issue is indisputably imputable to the United
111 HumanRights, 1975,p. 119.prus v. Turkey), Yearbook of theEuropeanConventionon
112 U.S. PreliminaryObjection,p. 48, para. 3.32.
113 Militaw and Paramilitaw Activities in and Against Nicaragua (Nicaraguav. United
States ofAmerica),Merits. Judgment,I.C.J. Reports 1986,p. 139,para. 277.States, and therefore the Court must now necessarily express an opinion on the
question of whether or not such conduct constitutes a breach of Article IV(l), in
viewof the fact that it occurred outside U.S.territory. While thisremains an issue
for the merits, itis certainly plausible at this stage of the proceedings that the
killingof persons and destruction of property caused bythe U.S. attacks on the oil
platforms cannot be regarded as equitable. This is sufficient to giverise to a
genuine dispute as to the Treaty's interpretation or application and thus to vest
jurisdiction in the Court.
CHAPTERIII INTERPRETATION OFARTICLE X(11
3.40 In its Memorial, Iran has argued that the U.S. actions in
1987and 1988were a violation of Article X(l) of the 1955Treaty, which provides
that:
"Between the territories of the two High Contracting Parties there
shall be freedom of commerce and navigation."
In its Preliminary Objection the United States disputes Iran's conclusions in this
regard, but does so in a contradictory, hastyand incomplete manner 114.
3.41 First, the United States asserts that its conduct in no way
affected the "freedom of maritime commerce". However, this is obviouslya very
loose and erroneous reading of the provision, which protects not onlyfreedom of
navigation (including, of course, maritime commerce), but also freedom of
commerce independent of navigation. Now, the U.S. actions, because they
involved the destruction of industrial facilities producing goods for international
trade, were seriously prejudicial to the freedom of commerce which Iran must be
allowed to enjoy under Article X(1).
3.42 The United States also argues that Iran's claimdoes not
,involve commerce between the territories of the two Parties. However, this
apodictic assertion neither takes into account nor criticises in any way the
observations put forward in this regard in Iran's Mernorialon the basis of highly
relevant internationaljurisprudence115. Until the United States condescends to
114 U.S. PrelirninaryObjection49,W., paras3.34,W..
115 Iran's Memorial,p. 90, para.3.66.explain to the Court the reasons for its disdain of this instructive jurisprudence,
Iran willdo no more than confirm the argument put forward previously.
3.43 In any event, at least until the end of October 198-after
the first U.S. attac-there was direct commerce in crude oil between Iran and
the United States. Until the U.S. import bans came into force on 26 October
1987,the United States was importing over 250,000barrels of Iranian crude oil
per day116. Although direct imports may have ended after 26 October 1987,
given the nature of the oil market it is almost certain that Iranian crude oil
continued to find its way to the United States after this date. In any event the
United States can hardly argue that there was no commerce in oil between Iran
and the United States when the United States itsel-by imposing import bans as
additional retaliatory measures against Iran - had made such commerce
impossible.
3.44 Finally, the United States accuses Iran of having itself
breached Article X(1), by having laid mines in international waters and attacked
vessels attempting to engage in innocent shipping. These assumptions are
completely unfounded, as Iran has alreadyshown and reserves the right to show
further at a later stage in these proceedings. But what is important to highlight is
the fact that the United States, by its very accusation that Iran has breached the
Treaty (and Article X in particular) by military actions, acknowledges that this
kind of action falls within the scope of the 1955 Treaty. This is an obvious
contradiction, whichdeprives the U.S. Preliminary Objection of al1credibility. In
sum, there is an implicit recognition by the United States that the Court has
jurisdiction in the present case, since the case indisputably poses questions of
interpretation and application of the 1955Treaty.
CHAPTER IV ARTICLE XX(l)(d) DOES NOT PRECLUDE THE
COURTFROM EXERCISING JURISDICTION IN THE
CASE
3.45 Article XX(l)(d) of the Treaty of Amityreads as follows:
"1. The present Treaty shall not preclude the application of
measures:
116 &, Part1,para1.13above. (d) necessary to fulfil the obligations of a High Contracting
Party for the maintenance or restoration of international
peace and security, or necessary to protect its essential
security interests."
3.46 The United States contends that the inclusion of this article
in the Treaty of Amity confirms that the Treaty is not intended to address
questions relating to the use of force by a Partyduring armed conflictl"l. More
specifically,the United States argues that since the actions it took in destroying
Iran'soil platforms were taken in self-defence and thus corresponded to measures
necessary to protect its essential security interests, these actions should be
excluded from the Court'sreviewbyvirtue of Article XX(l)(d).
3.47
The Court willappreciate that there are two related legs to
the U.S. argument. The first concerns the scope of the Treaty itself and whether,
as the United States contends, a whole category of actions relating to the use of
armed force are excluded ab initio from any review by the Court. The second is
essentially a plea on the facts: that in the specific circumstances of the U.S.
attacks on the oil platforms, these attacks were "necessary"to protect "essential
securityinterests" of the United States.
3.48 As to the first point, it should be stressed at the outset that
the mere existence of Article XX(l)(d), and the Parties' decision to include itin
the Treaty of Amity, is evidence of the fact that the Treaty, in the Parties' own
view, encompasses the kind of incidents which form the subject of this dispute.
This conclusion is confirmed by the general tone of the Section of the U.S.
Preliminary Objection concerning Article ~~(l)(d)''~. This provision is
presented by the United States as a lund of "escape clause" - a specific exception
said to remove certain subjects, notably "essential security interests", from the
Court'sjurisdiction. The logical consequence of such an approach must be that,
but for the "escape clause" contained in Article XX(l)(d), these subjects are
included within the purview of the Treaty since, otherwise, the clause would be
superfluous. However, the United States has also argued that the Treaty is
exclusivelyconcerned with commercial matters. If that were the case, then there
would be absolutely no need for a clause such as Article XX(l)(d). In other
117 &, U.S. Preliminaq Objection,50,gta..
118 m.words, the mere existence of Article XX(l)(d) in the Treaty contradicts the U.S.
thesis that the Treaty onlyaddresses commercial or consular affairs.
3.49 It is also clear that the Court has already rejected the notion
that Article XX(l)(d) precludes it from exercising its jurisdiction under the
compromissory clause of the Treaty. As the Court held in the Nicaragua case in
response to exactlythe same argument raised bythe United States:
"Thisarticle cannot be interpreted as removing the present dispute
as to the scope of the Treaty from the Court'sjurisdiction. Being
itself an article of the Treaty, it is covered by the provision in
Article XXIV [the compromissory clause - equivalent to Article
XXI(2) of the Iran-U.S. Treaty of Amity]that any dispute about the
'interpretatiqg or application' of the Treaty lies within the Court's
jurisdiction ."
The Court went on to observe:
"Article XXI [Article XX(l)(d) in the Iran-U.S. Treaty] defines the
instances in which the Treaty itself provides for exceptions to the
generality of its other provisions, but it by no means removes the
interpretation and application of that article from thejurisdicf$~~of
the Court as contemplated in Article XXIV [ArticleXXI(2)l .
3.50 The Court's finding flows naturally from the ordinary
meaning of Article XX(l)(d), taken in the context of the Treaty as a whole
including the compromissory clause, Article XXI(2). Neither Article XX(l)(d)
nor Article XXI(2) provides that measures taken in relation to the subjects listed
under Article XX(l)(d) are excluded from the purview of the compromissory
clause. To the contrary, Article XX(l)(d) only States that the Treaty "shall not
preclude" the application of certain measures. It follows that a Party may take
such measures under the Treaty, including measures that it considers are
necessary to protect its essential security interests, but thisill alwaysbe subject
119 Militav andPararnilitav Activitiesinandagainst Nicaragua(Nicaraguav. UnitedStates
of America). Merits,Judgment, I.C.J. Reports 1986, p. 116, para. 22This holding
makesit clearthat theTreatyof Amityextendsto issues involvingthe useof force,andis
not simplya"commercial"treatyasthe UnitedStatescontends.
120 m. It follows that when theCourt noted that it could not "entertain" theclaims of
Nicaragua alleging conduct breaching specific articlesof the treaty unless it was first
satisfiedthat thisconductdid not represent "measures..saryto protect" essential
security interests,it meantthat suchclaims couldnot be entertainedat the merits stage
withoutmakingsucha determination. TheUnitedStates'useof this languageto suggest
that the Court has no competenceat the iurisdiction phase toide whether such
conductwas "necessary"is completelymisplaced. U.S. Preliminary Objection,p. 51, para.
3.38.to the possibilityof judicial reviewby the Court since the compromissory clause
clearly anticipates that a dispute might arise between the Parties over the
interpretation or particularly the application of the provisions of Article
XX( l)(d).
3.51 In such an event, as the Court noted in the Nicaragua case, it
is not the subjective view of one Party alone that determines whether the
measures taken in are in fact necessary to protect that party's essential security
interests. Rather, the facts have to be examined ob-iectivelvby the Court to
determine whether essential security interests requiring protection were at issue
and whether the measures taken were necessary. As the Court stated in the
Nicaragua case:
"The Court has therefore to assess whether the risk run by these
'essential security interests' is reasonable, and secondly, whether
the measures presented as being desiged to protect these interests
are not merely usefulbut 'necessary' ."
3.52 In a sense, it is the United States itselfwhich has underlined
the need forthe Court to decide these issuesbyvirtue of its arguments on Article
XX(l)(d). For the United States claims that its actions in destroying the
platforms were taken in self-defence and were thus equated to measures
necessary to protect its essential security interestsder Article XX(l)(d). In so
doing, the United States has chosen to cast its arguments exclusivelyunder the
Treaty of Amity rather than under general principles of customary international
law. As a consequence, the United States itself raises the issue as to whether its
actions were lawful under the Treaty which, in turn, confirms the existence of a
dispute between the Parties as to the interpretation and application of, amongst
other things, ArticleXX(l)(d). As shownabove, such a dispute is a matter falling
within the Court'sjurisdiction, and not an issue to be determined unilaterally by
the United States.
3.53 Given that the ordinary meaning of Article XX(l)(d) is
unambiguous in this respect, there is no need to resort to any supplementary
means of interpretation such as the travaux uréuaratoires of the Treaty.
Nonetheless, the United States has attempted to bolster its position by reference
to two State Department memoranda submitted to the U.S. Congress, which
121 MilitarvandParamilitarvActivities inandagainstNicaragua(Nicaraguav. UnitedStates
ofAmerica).Merits,Judgment,I.C.J. Reports1986,p. 116,para.222.address the scope of the compromissory clausesin FCN treaties concluded with
China, Belgiumand ~ietnaml~~.
3.54 On the juridical level, these memoranda are without
relevance, not simply for the reasons stated above, but also because the
memoranda in question do not represent genuine travaux pré~aratoires under
Article 32 of the Vienna Convention on the Law of Treaties. They are no more
than unilateral statements issued by one of the Parties to the Treaty whichdo not
represent the agreed views of both Parties and are not germane to the question
whether Article XX(l)(d) excludes certain subjects from the scope of the
compromissory clause.
3.55 The memorandum dealing with the U.S. treaty with China,
for example, addresses a clause which refers to "the essential interests of the
country in time of national emergency123". At the time the United States
attacked Iran's oilplatforms, there was no "national emergency" confronting the
United States. Moreover, even if there had been, the language of the Treaty, as
the Court's holding in theNicara~ua case makes clear, leaves no doubt that any
dispute over whether the measures taken were necessary in the circumstances
would stillbe amatter for the Court to rule on.
3.56 It is also striking that the wording of the Treaty of Amity
differs from the language used by the United States upon adhering to the
Optional Clause of the Court's Statute in 1946. That language made the U.S.
declaration accepting the Court'sjurisdictionsubject to a condition that it would
not apply to-
"(b) disputes with regard to matters which are esentially within
the domestic jurisdiction of the United tes of America g
determined bythe United States of America h ."
,In other words, the United States retained the right to determine unilaterally
whether a matter was within itsjurisdiction and thus excludedfrom the purviewof
its declaration.
122 U.S. Preliminary Objection, pp. 50-51, para. 3.37.
123 m., Exhibit 52, p. 30.
124 Yearbook of the International Court of Justice. 1984-1985, No. 39, 1985, The Hague,
100(emphasisadded). 3.57 In this case, however, there is no such limitinglanguage- an
omission which the Court has found to be significant. In the Nicaragua case, for
example, when the Court was faced with the same provision as appears in Article
XX(l)(d) of the Treaty of Amity and the same U.S. argument as to why matters
relating to its essential security interests should preclude the Court from
exercising itsjurisdiction in the case, the Court ruled that it did have jurisdiction.
The Court supported its decision in part by referring to Article XXI of the
General Agreement on Tariffs and Trade (GATT), which stipulates that the
terms of the GATT should not prevent any contracting Party from taking any
action which ~ "considers necessary for the protection of its essential security
interests". That wording led the Court to observe that the fact that it did h-ve
"..jurisdiction to determine whether measures taken by one of the
Parties fa11within such an exception, is also clear a contrario from
the fact that Article XXI of the Treaty does not employ the wording
which was already to be foun Article XXI of the General
Agreement on Tariffs and Trade 4251 .
The Court went on to add that:
"The 1956Treaty, on the other hand, speaks simply of 'necessary'
measures, not of those considered by a party as such".
3.58 The absence in Article XX(l)(d) of the Treaty of Amity of any
language permitting a Party to make a unilateral determination whether a matter
falls within its essential security interest has also been noted by U.S.
commentators. As Robert Wilson, one of the U.S. negotiators of FCN treaties at
12611
the time, has observed: "This omission of reservations was not inadvertent .
Indeed, the State Department memorandum on the U.S. -China treaty expressly
Statesthat:
"There is, of course, no provision similar to this in the treaty [an
exception as in the U.S. adherence to the Optional Clause]. The
Department of State feels that questions arising under this treaty
are matters which the United States would wishto see submitted to
the International Court of Justice, and that it would be in the public
interest for the United States to be able to bring, without
restriction, before that Court anv disputes arising because of the
125 MilitarandParamilitan Activities inand againstNicaragua(Nicara~uav. United States
ofAmerica).Merits. Judgment,I.C.J. Re~orts1986,p. 116,para.222.
126 Wilson, R.R.CommercialTreatiesand International Law, Hauser PrintingCo., 1960,p.
24. Exhibit 14. interpretation or application by China of the provisions of this
treaty insuc$jj,way as to be detrimental to the interests of the
United States ."
3.59 Thus, the absence of any self-judging restrictions to the
Court'sjurisdiction in the compromissory clause of the Treaty of Amity confirms
that anv dispute over its interpretation or application may be submitted to the
Court whichisthe final arbiter of the matter.
3.60 Finally,the United States also blatantly misquotes from the
Court's Judgment in the Nicaragua case in a last ditch attempt to salvage its
argument under Article XX(l)(d). After asserting that the attacks against the
Iranian oil platforms of 17 October 1987 and 18 April 1988were taken in the
exercise of the inherent right of self-defence and suggestingthat measures taken
in self-defence correspond to measures taken to protect essential security
interests, theUnites States then claims that, with respect to the provision of the
Treaty dealingwith essential securityinterests, the Court stated:
"The Court does not believe that this provision...can apply to the
eventuality &$he exercise of the right of individual or collective
self-defence ."
3.61 This citation is taken completely out of context as even a
cursory review of paragraph 223of the Court's Judgment reveals. For when the
Court stated that it did not believe that "this provision" can apply to the
eventuality of the right of self-defence, it waset referring to the second part of
Article XX(l)(d) dealing with essential security interests, but rather to the first
part of the article which deals with measures "necessaryto fulfilthe obligations of
a High Contracting Party for the maintenance or restoration of international
peace and security". As the Court explained, these kinds of measures, "signify
measures which the State in question must take in performance of an
international commitment of which any evasion constitutes a breach", such as
commitments "accepted by Members of the United Nations in respect of Security
Council decisions taken on the basis of Chapter VI1 of the United Nations
Charter (Art. 2~)"~~~.
127 &g, U.S. Preliminary Objection, Exhibit52, p. 30.
128 U.S. Preliminary Objection,53, pa3.41,citing Militarv and Paramilitarv Activitiesin
and against Nicaragua (Nicaraguav. United States ofAmerica), Merits, Judgment. I.C.J.
Reports 1986,pp. 116-117,para. 223.
129 m. (emphasis added). Members of the United Nations in respect of Security Council
decisions taken on the basis of Chapter VI1of the United Nations Charter (Art.
25)~129
3.62 It was onlyin the next paragraph of its Judgment, paragraph
224, that the Court proceeded to examine the second category of measures
provided for by ArticleXX(l)(d) - measures taken to protect a party's essential
security interests. On this point, the Court concluded that actions taken in self-
defence might be considered as part of this wider category of measures, yet it was
preciselythese kinds of measures that the Court held it had jurisdiction to review
at the merits stage of the proceedings.
3.63 Incidentally, the measures taken by the United States
against Iran's oil platforms in this case were not taken pursuant to any
international commitment or Security Council resolution. This is particularly
significant in light of the very different attitude shown by the United States after
the Iraqi invasion of Kuwait,where the U.S. was at pains tosure that its actions
met with the approval of the international community and were carried out
pursuant to Security Councilresolutions.
3.64 On the basis of the foregoing, therefore, it is abundantly
clear that nothing in Article XX(l)(d) of the Treaty bars the Court from
exercising its jurisdiction in the present case. To the contrary, the ordinary
meaning of the Treaty's provisions, as recognised by the Court's holding in the
Nicaragua case and the State Department's own memoranda, al1confirm that
disputes over the application or interpretation of the provisions of the entire
Treaty, includingArticle XX(l)(d), are fullyadmissible.
3.65 The second leg of the U.S. argument -that the measures
taken by the United States were in fact necessary to protect its essential security
interests-involves the kinds of issues that the Court will need to address at the
merits stage,i.e wh ether such "interests" were at stake and whether the U.S.
protective measures were "necessary". For present purposes, al1the Court has at
itsdisposal is the bald assertion at pa52of the U.S. Preliminary Objection that
"Iranian attacks on U.S. and other neutral vessels in the Persian Gulf clearly
threatened U.S. national security interests".
129 !bic(emphasisadded). 3.66 Unfortunately, the United States does not offer a single
piece of evidence to support this assertion. We are not tild, for example, what
national security interests were being threatened, and why, even if they were, the
U.S. attacks against' virtually defenceless commercial oil platforms were
"necessary"to protect those interests.
3.67 This is, of course, a showingthat the United States willhave
to attemptto make at the merits stage since the burden clearly fallson the United
States to justify its use of armed force which was prima facie illegal under the
Treaty of Arnity. However, the complete lack of any evidence to support its
claims at this stage underlines the lack oferit in the U.S. Preliminary Objection. PART IV
THEVALIDITYOF THE OBJECTIONAND ITS
CHARACTER: EXCLUSIVELP YRELIMINARYORNOT?
4.01 In its Memorial of 8 June 1993, Iran went to considerable
lengths to demonstrate that the conditions of the compromissory clauseArticle
XXI(2) of the Treaty of Amity -had been fullysatisfied in this case130. Certain
of these conditions are mainly procedural, such as the requirement that the
dispute not be one "satisfactorilyadjusted by diplomacy"or agreed to be settled
by some other pacific means, while others touch on the nature of the Treaty and
whether a genuine question of its interpretation and application arises in
connection with the claims introduced by Iran. Each of these issues will be
considered in turn below.
CHAPTER1 THE DISPUTE BETWEEN THE PARTIES HAS NOT
BEEN"SATISFACTORILA YDJUSTEDBYDIPLOMAW
4.02 In this case, the United States has not contested Iran's
showingthat the dispute was not satisfactorilyadjusted by diplomacyor agreed to
be settled by some other meansl3l. Indeed, the United States explicitly
recognises that Iran didaise its claimsunder the Treaty with the United States in
July 1992 -claims which the United States reje~ted.'~~ Thus, there can be no
possible basisfor a U.S. argument that Iran has failed toue diplomatic means
to settle its case.
4.03 In any event, as explained in Iran's Memorial, the plain
language of Article XXI(2) does not place any positive obligation on the Parties
to attempt to negotiate a dispute over the Treaty's interpretation or application
before bringing a case before the Court. For the Court to exercise jurisdiction,
that is required isthat the dispute not be one satisfactorilyadjusted by diplomacy.
As several Judges observed with respect to identical language that was at issue in
the Nicaragua case, the wording of Article XXI(2) is expressed in a purely
negative form and does not require prior negotiations to be undertaken 133 .
130 &, Iran'sMemoriai,pp.55-68.
131 M.,pp.64-67.
132 U.S.PreliminaObjection,p. 36, para3.08.
133 %, thereferencesgiatpp.65-66,paras.2.36-2.38, of Iran'sMemoriai.Moreover, as the Court itself noted in the Diplomatic and Consular Staff case,
Article XXI(2) simply "establishesthe jurisdiction of the Court as compulsoryfor
such disputes unless the Parties awe to settlement by some other means 1341.
Since it isself-evident that the dispute was not satisfactorilyadjusted bydiplomacy
before Iran filed its Application, or settled by some otherans, this element of
ArticleXXI(2) is clearly satisfiedin this case .
4.04 Of course, even if prior negotiations had been a prerequisite
under the terms of Article XXI(2), which Iran has shown is not the case, Iran has
demonstated that the attempts it made to negotiate the dispute were rebuffed by
the Unitéd states13q In these circumstances, particularlywhere the respective
positions of the Parties showed such sharp and irreconcilable differences, a
prolonged attempt at negotiations, or even any negotiations at all,wouldnot have
been a precondition for invoiungthe Court'sjuri~dictionl~~. Accordingly,there
are no procedural obstacles to the Court'sjurisdiction to hear Iran's claimsin this
case.
CHAPTERII THEDISPUTE BEFORETHE COURT CONCERNS THE
INTERPRETATION ANDAPPLICATIONOF THE 1955
TREA'IY
SECTIO AN TheExistenceofa Dispute
4.05 The Court's jurisdiction under the Treaty covers "&
dispute" "asto the interpretation or application of the present ~reaty"~~~.Article
XXI(2) permits either Party to submit such a dispute to the Court if it has not
been satisfactorily adjusted by diplomacy. It is Iran's contention that a dispute
134 United StatesDi~lomaticand Consular Staff in Tehran, Judgment,I.C.J. Reports 1980,
p. 27, para. 52 (Emphasis suppliedby theCourt).
,135 There is no disagreementbetween the Parties that the dispute has not been settledby
someotherpacificmeans.
136 &, Iran'sMemorial, p. 60, para. 2.18, to which the United Stateshasnot takenissue.
137 See, Mavrommatis Palestine Concessions. JudgmentNo. 2. 1924.P.C.I.J.. SeriesA. No. 2,
p. 13;SouthWest Africa, PreliminarvObiections, Judgment.I.C.J. Reports 1962,p. 346;
andB, Separate Opinion of Judge Ago in Militarv and Pararnilitarv Activities in and
against Nicaragua (Nicaragua v. United States of America). Jurisdiction and
Admissibilitv, Judgment.I.C.J. Reportsp. 515-516.
138 Emphasis added.clearly exists and that the Court has jurisdiction over this dispute. The United
States, on the other hand, in denying that the Treaty applies to the U.S. conduct
in destroying Iran's oil platforms, appears to be denying that thereis a dispute as
to the interpretation and application of the Treaty.
4.06 The U.S. denial of the existence of a dispute isobviouslynot
enough to settle the issue. In numerous decisions, the Court has held that the
existence of a dispute is a matter for objective determination and that "[tlhe mere
denial of the existence of a dispute does not prove its non-exi~tencel~~". Instead,
the Court has looked at the facts, deciding that when confronted with "a situation
where the two sides hold clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations ..the Court must
conclude that international disputes have ari~en'~~". As the Court held in the
South West Africa case:
"It must be fiqw nhat the claim of one party is positivelyopposed
by the other ."
4.07 This line of reasoning was fullyadopted by the United States
in its pleadings in the Diplomatic and Consular Staff case. One of the
jurisdictional issues presented there hinged on whether there was a dispute
arising out of the interpretation or application of the same Treaty or Amity. In
the oral hearings in that case, Counsel for the United States argued that the mere
fact that the United States had charged Iran with violating various provisions of
the Treaty of Amity "inevitablyrequires the interpretation or application of the
~reatyl~~".
4.08 The U.S. Mernorial in the Diplomatic and Consular Staff
case made the same point. There the United States stated -
"...if the Government of Iran had made some contention in this
Court that the United States interpretation of the Treaty was
incorrect or that the Treaty did not apply to Iran's conduct in the
139 Intemretation of Peace Treaties withBulgaria, Hungarv and Romania, First Phase,
AdvisorvOpinion. I.C.J. Reports 1950,p. 74.
141 SouthWestAfrica. PreliminarvObiections,Judgment. I.C.J. Revorts 1962,p. 328.
142
Staff in Tehran (USAv. Iran), p. 285.leadings, United StatesDiviomaticand Consular manner suggested by the United States, the Court would clearlybe
confronted with a disp~J~llrelating to the 'interpretation or
application' of the Treaty .
4.09 Similar arguments were advanced by the United States with
respect to the application and interpretation of the two Vienna Conventions on
Diplomatic and Consular Relations. The United States claimed that Iran's
conduct condoning the seizure of the U.S. Embassy in 1979 violated several
provisionsof these Conventions. From this, the United States concluded: "IfIran
had disputed these claims, there would obviously be a 'dispute' as to the
14411
'interpretation and application' of the two Conventions .
4.10 From the pleadings before the Court, it is quite apparent
that there are disputes between Iran and the United States concerning the
interpretation and application of the Treaty.These disputes concern not onlythe
general character of the Treaty -whether or not it is purely commercial in nature
or whether it can also apply to acts involvingthe use of force- but also detailed
aspects of individual provisionsof the Treaty: forexample, the question whether
there is a territorial limitation to the obligations in Article1) as well as the
differences that have emerged between the Parties over the scope and meaning of
Articles 1and X(1). Al1such questions inevitably involve the interpretation and
application of the Treaty, and are thus questions clearly within the jurisdiction of
the Court under the terms of the compromissory clause. On this basis, Iran
submits that the U.S. objection should be rejected at this preliminary stage.
SECTIO BN The Existence of a "Suiïicientlv Plausible" Link between
Iran'sClaims andthe Treaty
4.11 Surprisingly,the U.S. position in thiscase is rather different
from the position it took in the Diplomatic and Consular Staff case. The United
States now argues that Iran must show something more than the existence of a
dispute as to the interpretation and application of the Treaty. It must also show
.in the jurisdictional phase - that a "reasonable connection" or "sufficiently
plausible" link existsbetween the U.S. conduct complained of and the Treaty. It
145
isthe U.S. contention that nosuch connection exists.
143 U.S. Mernoriam., p.153.
144 M., pp.142-143.
145 U.S. Preliminary Objection,,ara.. 4.12 Iran has no doubt that it can meet such a test, as will be
shown in the next Chapter. However, it must question whether such a test, at
least as framed bythe United States, is appropriate for the jurisdictional phase, as
the Court may be obliged to engage to some degree in the interpretation and
application of the Treaty at this stage when such matters really fa11for the merits
phase of the case.
4.13 What is clear is that the United States does not deny that it
destroyed the Iranian oil platforms; nor does the United States deny that the 1955
Treaty was, and is, a treaty in force between the Parties. Thus, if an issue of
jurisdiction is to be posed to the Court, it ought to be in quite simple terms: does
the destruction of these oil platforms raise a question as to the interpretation and
application of the Treaty's provisions and whether the United States is in
brea~h'~~. It can be no more than a "question" -if the Court is confined to the
jurisdiction issue - for the Court's jurisprudence establishes clearly that any
147
decision as tojurisdiction does netprejudge the merits .
4.14 From this it followsthat Iran does not have to prove at this
stage that there & a breach of the Treaty, for the Court cannot at this stage rule
there & a breach. The most that Iran need do is to demonstrate that there is a
sufficient nexus,or relationship, between the conduct of the United States and the
obligations of the 1955Treaty to raise a genuine question as to the interpretation
and application of the Treaty in connection with the U.S. conduct. The ultimate
question of whether a breach has in fact occurred belongs to the merits and it is at
the merits stage that the burden of proof on Iran changes from showingthat there
is a auestion of interpretation and application to be examined (the jurisdictional
146 The U.S. PreliminaryObjection posesa different question: "It is the conof then
United States that there is no relationship between thtndthe claimscontained
in Iran's Application, whfocusesexclusivelyon the exerciseb..the United Statesof
its inherent right of self-def."(Para. 5). This is firstly not true (Chapters1, II, III
and IV of Part III of Iran's Memoriai focussed exclusyn the 1955 Treaty). And,
secondly,it confuses the issuesofwhether there isaprima faciebreachofthe 1955Treaty
and whether the.S. has a defenceto, or canjustify, that breachby a vaiid pleaof self-
defence.In so far as Iran discussed the second -whichraisesquestions of generai
internationalla-this doesnot meanthat its ailegationof breachof the Treatycan be
ignored.
147 &, Borchgrave,Jud~ment.1937,P.C.I.J.. SeriesAIB. No. 72, pp. 169-70;Anglo-Iranian
Oil Co.. I.C.J. Revons 1952, Dissenting Opinionof Judge Read, pp. 149-150.Abi-Saab,
G.: Lesexceutions~rélirninairsanslavrocédurede la Cour Internationale,A. Pedone,
Paris, 1967,p. 243; Roseme, :.The LawandPracticeof the InternationalCourtA.W.
Sijthoff,Leyden, 1965, Vol. 1,p. 460.stage) to showingthat there & a breach (the merits stage). In short, Iran must at
this stage show a plausible connection between the United States conduct and the
Treaty, simply to satisfy the Court that there is a genuine question arising under
the Treaty: the task of demonstrating an actualbreach comes later, on the merits.
4.15 The Court faced a somewhat similar situation in the
Ambatielos case148 inwhich the Greek Government sought to showthat its claim
against Great Britain was based on a Treaty of 1886,and that Great Britain was
committed to an obligation to arbitrate disputes arising from that treaty by a
compromissory clause within that treaty. The Court required Greece only to
show that its claims had a sufficient connection with the 1886 Treaty, and it
rejected the argument of the United Kingdom that Greece must show there had
been a breach.
"In order to decide, in these proceedings, ... The Court must
determine, ...,whether the arguments advanced by the Hellenic
Government in respect of the treaty provisions on which the
Arnbatielos claim is said to be based, are of a sufficientlvplausible
character to warrant a conclusion that the claim is based on the
Treaty. It is not enoughfor the claimant Government to establish a
remote connection between the facts of the claim and the Treaty of
1886. On the other hand, it isnot necessary for that Government to
show, for present purposes, that an alleged treaty violation has an
unassailable legal basis.
...In other words, if it is made to appear that the Hellenic
Government isrelyingupon an arguable construction of the Treaty,
that is toSay,a construction which can be defended, whether or not
it ultimately prevails, then there are reas~~~ble grounds for
concluding that itsclaim isbased on the Treaty ."
4.16 While Ambatielos contains a useful analogy, it must be
remembered that it concerned the jurisdiction of another body and jurisdictional
148 Ambatielos. Merits, Judgment, I.C.J. Revort1953, p. 10; s, also, Ambatielos,
PreliminarvObiection. Judgment,I.C.J. Repo1952,p. 28.
149 Ambatielos, Merits, Judgment, I.C.J. Rep1953,p.18 (emphasis added). The dissent
of Judges McNair, Basdevant,Klaestadand Read, following the Mavromrnatis Palestine
Concessions case (Judgment No. 2. 1924.P.C.I.J., Series A. No. 2), had argued that
Greece should provide sufficient proof of breach as to allow the Court to reach a
definitive conclusion:Ambatielos,Merits,M., pp. 25-35. The notion that, on a
Preliminary Objection, the Court should reach a definitive conclusion seems wrong,if
onlybecauseit conflicts with the principlethat decisionsat this stage do not prejudge the
merits. Indeed, in theBarcelonaTractioncasethe Courtwent so far as to say "the
of a preliminaryobjectionisto avoid notmerelyadecisionon, but even any discussionof
the merits "(Barcelona Traction,ight and Power Companv. Limited. Preliminarv
Obiections, Judgment.I.C.J. Reports64,p.44).provisionsusingquite different language from that in question in the present case.
In the Arnbatielos case, the Court was concerned withwhether a Greek claimwas
"based on" a treaty, thus requiring the United Kingdom and Greece to arbitrate
that claim. In other words, in that case Greece had to show more than just a
dispute over the interpretation and application of the treaty, it had to show its
claim was "based on" the treaty. It was only in that context that the Court held
that it had to enter into the merits of Greece's claim in order to establish that a
"sufficiently plausible" connection existed between Greece's claim and the
~reatyl~'.
4.17 Thus, if the matter istreated as a Preliminary Objection, and
the Court is at a purely jurisdictionalstage, Iran does not have to prove breach of
the 1955Treaty. Iran has simply to show that its claims give rise to a genuine
question as to the interpretation or application of the Treaty, and this Iran has
done. The question whether Iran's interpretation of the Treaty is correct, and
whether a breach is proven, would remain matters for the meritsl5'. It is Iran's
submission that, in its Memorial of 8 June 1993,especially inPart III, as well as in
the sections above, it has fullysatisfied the test of "sufficientlyplausible" or close,
connection between the facts it alleges and the Treaty.
For this reason the U.S.
Preliminary Objection should be dismissed.
4.18 At the same time, the Court also has another alternative. It
may consider that in decidingwhether the U.S. test is met it is already engagingin
matters which touch on the merits, and which are thus not appropriate for
treatment during the jurisdictional phase. The United States itself calls on the
Court in dealingwith the U.S. objection to "relyon a reasonable interpretation of
the 1955 ~reatyl~~". However, "interpretation" of the Treaty isprecisely a matter
within the Court'sjurisdiction for the merits. In such circumstances, the Court
may deem that the U.S. objection does not have an "exclusivelypreliminary
character" within the terms of Article 79(7) of the Rules of Court.
150 Ambatielos, Merits, Judgment,I.C.J. Reports 1953,p. 18. Similarly. these relied
on by the United States did notlvetheCourt'sjurisdiction but thejurisdiction of the
Administrative Tribunal of the under a quite different clause to that at issue here.
See, Judgmentof the AdministrativeTribunalof the IL0 upon Comvlaintsmadeagainst
UNESCO. Advisow Ovinion, I.C.J. Reports 1956,pp. 88-89.
151 Abi-Saab, G: Les exceptions préliminairesdans la procédurede la Cour internationale,
A. Pedone, Paris, 1967,p. 193.
152 U.S. PreliminaryObjection,p. 32, para. 2.10 4.19 Certain objections will be clearly separable and logically
resolvable prior to any consideration of the merits, so that their "exclusively
preliminary character" is beyond dispute. Thus, in the present case, if the United
States contested the validity of the 1955 Treaty by way of preliminary
objection153, that issue could be resolved by the Court without touching upon any
of the issues that relate to the me rit^'^ ^ .wever, in many cases - and the
present case may be an example - the objections may not be such as to raise issues
completely antecedent to the merits. Where the objection is that particular
conduct is not subject to certain treaty obligations the Court is necessarily bound
to examine that conduct interpret to some extent the treaty provisions: it
cannot do otherwise if it is to decide - as the United States asks the Court to
decide - whether the claimant has made out a plausible case that the conduct
breaches the treaty. Yet, in undertaking that examination the Court may already
be embarking down the road of the merits of the case at least insofar as the
Treaty's interpretation is concerned, if not its application.
4.20 Such a procedure could not only prejudge the merits phase
but could also compel the Court to hear and decide upon similar arguments
twi~el~~:the first time to show that the conduct in question was covered by treaty
obligations, and the second time to show the conduct was in breach of those
obligations. Thus, it also becomes in part a question of the most economic use of
the Court's time.
153 Similar objections challenging the instrument conferring jurisnan be seen in
'ïempleof Preah Vihear, Preliminam Obiections. Judgment. I.C. evons1961,p.17;
the Fisheries Jurisdiction (UnKingdomv. Iceland).Merits, Judgment.I.C.J. ReDortS
-1974,p. 3,and Fisheries Jurisdiction(Federal Re~ublicof Germanvv. Iceland).Merits,
Jud~ment. I.C.J. Revons 1974, p. 175. Thirlway, H. : "Preliminary Objections",
Encvclo~aediaof Public International Law, 1, 1981,pp. 179-187,identifies som10
cases in this category.
154 In the Barcelona Traction.Lirrhtand PowerCom~anv,Limited, Preliminam Obiections,
Judgment. I.C.J. Revons1964, p.4,JudgeMorelli, in his Dissenting Opinion, suggested
that the true preliminary objectionraised issues which, by necessary logic,had to be
resolvedprior to the meritsd.p.98). Thismaybetruein somecases, butnot in all.
155 The Court'sjurisprudence clearly establthat any decisionas to jurisdiction should
n* prejudge the merita, the references givenin footn147 above. Indeed, in the
Barcelona Traction case the Courtwent so far as to Say "the object of a preliminary
objection is to avoid not merelyaision on, but even any discussionof the merits"
{BarcelonaTraction, Light and Power Com~anv, Limited, Preliminarv Obiections,
Judgment,I.C.J. Revorts1964,p.44). 4.21 Iran would accept that it must be shown that there is a
genuine - as opposed to purely artificia- question in dispute involving the
interpretation and application of the Treaty inorder for the Court to have
jurisdiction. In Iran's submission, this can be show without involvingthe Court in
merits issues. For the benefit of the Court, the principal elements of the dispute
between the Parties as to the Treaty's interpretation and application will be
sumrnarised in thenext Chapter. Subsidiarily,however, Iran submits that in the
event that theU.S. Preliminary Objection is not rejected at this stage, it may be
ruled not to have an "exclusivelypreliminary character".
CHAPTERIII THE CLAIMS ACTUALLY MADE, AND THE
OBJECTIONSRAISED,IN THEPRESENTCASE
4.22 Iran willshow in this Chapter that there exists a "sufficiently
plausible" link between its claimsand the Treaty. In short, it willbe demonstrated
that the issues in question evidence a fundamental dispute between the Parties
over the Treaty's application or interpretation sufficient to vest jurisdiction in the
Court.
SECTIO AN Article1oftheTreaty
4.23 Article 1it will be recalled, requires ("there shall be") "firm
and enduring peace and sincere friendship" between the Parties. In its Memorial
Iran has show that, in incorporating this provision in the first, substantive Article,
the Parties intended to create legal obligations, and there is nothing untoward in
the notion that "friendly relations" be expressed in terms of legal obligations.
Iran further made clear that it was not claiming before the Court that Article 1
was breached by the overall U.S. policyof support for Iraq in itswar of aggression
against ~ran'~~,but that its claim rested on the specific attacks in 1987and 1988
against the Iranian oil platforms. It would seem difficult to deny that an
obligation to demonstrate "firm and enduring peace and sincere friendship" is
totally incompatible withsuch attacks. On that basis alone, Iran has met the
requirement of showing a "sufficiently plausible" claim of breach. Has the
plausibilityof that claimbeen negated by theS.Preliminary Objection?
4.24 As shown ab~vel~~, the observations by the United States
on Article 1are singularly unconvincing. They rest largely on the assertion that
156 Iran'sMemorial,p. 84, para.3.49.
157 &, PartIII, Chapr,above.the 1955Treaty is"purelycommercial and consu~ar~~~" a,n assertion contradicted
by the plain terms of the provision,by the historical contextof the Treaty, and by
U.S. Government statements about similar treatiesi5'. Moreover, in citing the
Court's Judgment in the Nicaragua caselo0, the United States totally ignores the
express finding by the Court that the United States did breach its FCN Treaty
with Nicaragua by "the direct attacks on ports, oil installations etc ...6111.~nless
the United States can show that attacks on Iranian oil installations are somehow
different from attacks on Nicaraguan oil installations, this finding forcefully
confirms the plausibility of Iran's claim. In the final analysis,what the United
States has offered is a different interpretation of the Treaty of Amity. Yet this is
just the lund of issuewhichthe Court is called upon to decide at the merits stage.
4.25 Assuming, then, that Iran has a plausible claim, can it be
said that the United States has shown reasons to dismiss that claim which the
Court can deal with on an "exclusivelypreliminary" basis? The answer is
decidedly negativefor the followingreasons.
(a) An abstract finding that the 1955 Treaty was the same as
other FCN treaties concluded by the United States, or that it
had a "purely commercial and consular" purpose would not
resolve the issue, for the Court would still have to consider
(as it did in the Nicara-ua case) whether the specificattacks
in 1987 and 1988, which were directed at commercial
installations, mightbreach the Treaty;
That would inevitably lead the Court into an interpretation
(b)
of the scope of the treaty provision and its application to the
conduct in question, so that, even if the Court refrained
from an actual finding on the question of breach, the Court
would have gone some of the way towards interpreting the
article in question. In other words, the Court would already
be partially engaged in the merits of the dispute. Iran's
159 &, Part III, Chapter1,paras. 3.13-3.14, above.
160 U.S PreliminaryObjections, p. 41, para. 3.19.
161 Militarvand ParamilitarvActivitiesin and againstNicaragua(Nicaraguav. United States
ofAmerica),Merits. Judgment. I.C.J. Reports 1986,p. 138,para. 275. primary submission is, of course, that its interpretation of
the Treaty is sufficiently plausible to warrant the Court's
rejecting the Preliminary Objection and proceeding to the
merits. At the very least, however, itan be said that the
Preliminary Objection does not have an exclusively
preliminary character;
The application of a treaty provision - as,opposed to its
interpretation or to the question of itsvalidityllrarely, if
ever, be a matter of an "exclusivelypreliminary character".
For by its very nature any question of applicationcan only
be decided in relation to concrete facts, andhese facts are
part of the merits. Thus, it is possible to determine at this
stage that there is a dispute over the Treaty's interpretation
or application, but any actualecision on the merits of these
questions is more appropriately left to a subsequent phase
of the proceedings.
SECTIO BN ArticleIV(1)
4.26 Here the U.S. argument is simply that the obligation to
afford "fair and equitable treatment" to each other's nationalsconfined to such
nationals as are within its territovlo2As pointed out ab~vel~~,Article IV(1)
does not Sayso and whilst inthe majorityof cases nationals invokingthis provision
may be located in the other State's territory, there may be important exceptions.
A United States Companyseeking to bid for contracts put out to tender by the
Iranian Government - but not actually present in Iran -could well seek the
protection of this provision against arbitrary action to reject its bid. Countless
other examples come to mind. Thus, the case put by Iran is perfectly "plausible",
and the U.S. objection can be rejected because a genuine question of
interpretation and application of the provision arises.
4.27 Whether or not the Court accepts Iran's case will require
an interpretation of the Article m, if the Court rejects the narrow U.S.
interpretation, an application of the Article to the facts of the present case. In
effect the United States asks the Court toeparate out the "interpretation"phase
162 U.S.Prelirninary Objection, pp.47-49, paras. 3.30-3.33.
163 B, Part III, ChapterII, above.- as having an exclusivelypreliminary character -and the "application"phase, as
belonging to the merits. However, this is plainly inappropriate - the Court's
jurisdiction under the compromissory clause extends to the interpretation or
application of the Treaty. Moreover, as with Article 1 of the Treaty the
separation of "interpretation" from "application"is highlyartificial and is likelyto
lead the Court into an extensive duplication of work. Once the "interpretation" is
resolved, the Court willhave gone part of the waytowards resolvingthe question
of its "application". At the very minimum, this negates the "exclusively
preliminary character" of the first phase.
SECTIO CN Article X(11
4.28 Here the U.S. argument is very similarlo4. It is essentially
that the "freedom of commerce and navigation" protected by the provision is
confined to commerce and navigation between the territories, and that
"commerce" means onlymaritime commerce" -Le, an alternative interpretation of
the relevant provision. Iran has shownthat, at least at the time of the first attack,
there was such commerce in oil between the United States and Iran - commerce
that was only ended by the punitive embargo measures imposed by the United
States on Iran inlate October 1987'~~. Iran has also show that in the Nicaraeua
case, the Court did not interpret this clause as requiring a strict territorial
limitation of thisclauselo6. In such circumstances, Iran's claim must be more
than plausible and the U.S. objection can be rejected.
4.29 However, once again the U.S. argument raises issues of the
interpretation and application of the Treaty which are self-evidentlywithin the
jurisdiction of the Court. Any attempt to separate the interpretation of a
provision from its application could well be artifical and wasteful. Once again,
therefore, the U.S. argument cannot be said to have an exclusivelyprelirninary
character.
4.30 In al1of this the word "exclusively"needs to be emphasised.
That word contained in Article 79(7) of the Rules is important - and in this case
decisive. It is not enough for the United States to show that there are issues
164 U.S. Preliminq Objection, pp. 45-50, paras.3.34 -3.35.
165 &, Part1,Chapte1,para. 1.13, above.
166 &, Iran'sMernorial,pp. 89-90, paras. 3.65-3.66.which caribe dealt with on a preliminary basis. The word "exclusively"suggests
that the issues ought to -even must -be dealt with separately because they are so
patently independent of, or exclusive of, the other issues in the case. That is
clearly not so with any of the Iranian claims, and the United States has totally
failed to discharge its burden of showing that its objections have an "exclusively
preliminary character". - 75 -
PART V
CONCLUSIONS
5.01 It is the nature of a Preliminary Objection to impose on both
Parties the burden of supporting their respective positions.
5.02 Both in its initial Memorial and in these written
Observations Iran has shownthat the destruction bythe United States of Iran'soil
platforms has given rise to a genuine dispute over both the interpretation and the
application of the 1955Treaty of Amity. Accordingly, Iran's primary submission
is that the Preliminary Objection should be rejected.
5.03 Despite the fact that, prima facie, the compromissory clause
in the Treaty of Amity vests jurisdiction in the Court to decide these questions,
the United States has challenged that jurisdiction by raising a Preliminary
Objection. It followsthat the United States has the burden ofproving that there
is no arguable link between Iran's claimsand the Treaty. It has attempted to do
soon essentially twogrounds:
(a) On the argument that the 1955 Treaty is concerned with
purely commercial and consular matters, and;
(b) On the argument that Iran's claimsare essentially political,
designed to charge the United States with aggression, and
based on customary international law rather than the 1955
Treaty.
5.04 As demonstrated earlier, the second of these grounds is
devoid of substance. It cannot be supported by a careful reading of Iran's
Memorial, and it is based on a confusion between that part of Iran's arguments
which showsthe United States was in breach of Articles 1,IV(1) and X(l) of the
Treaty, and the quite separate part which shows that the United States cannot
excuse these clear breaches by relyingon a plea of self-defence. It is essentially in
this latter part of its arguments that Iran has, necessarily, invoked the U.N.
Charter and customary law. 5.05 The first argument by the United States is equally mistaken.
The terms of the 1955Treaty do not support it and, in any event, a finding -that
the Treaty was "commercial" in nature would, as an abstract finding, scarcely
resolve the issue. The installations destroyed were commercial, owned by a
commercial enterprise (NIOC), and the whole purpose of the attack was to
damage the foundations of Iran's commercial and economic relations. This
demonstrates the artificiality of the distinction made by the United States in
supposing that the "interpretation" of the Treaty can be divorced from its
"application".
5.06 Thus, there is a genuine issue to be tried here, and it is the
kind of issue for which Article XXI(2) was expressly designed. The
compromissory clause must therefore be allowed to fulfil its intended role, and
the United States has failed to discharge its burden of showingthat Iran has not
made out a plausible claim.
5.07 However, the above arguments go to the question whether
the U.S. Preliminary Objection should be upheld or rejected. If rejected, that is
an end to the matter and the United States would not be expected to renew them
at the merits stage.
5.08 But there is another possibilityopen to the Court under the
Rules, and that is to decide that the objections do not have "an exclusively
preliminary character", with the result that the case proceeds to the merits, but
allowing the United States to maintain its objections at that stage. The
extraordinary feature of the U. S. Preliminary Objection is that ites not appear
to contemplate this alternative. It might have been supposed that there was an
obligation on the United States to demonstrate that its objections had an
"exclusivelypreliminary character", but apparently the United States does not see
this demonstration as part of its task. That, in Iran'sw,isan error.
5.09 Nonetheless, Iran has sought in these written observations
to showthat the issuesraised cannot be characterised as "exclusivelypreliminary",
and it is for this reason that Iran makes a second submission. This is that, if the
Court decides not to reject the Preliminary Objection, either in whole or in part,
such parts of the objection which are not rejected should be held mt to have an
exclusivelypreliminary character. SUBMISSIONS
In the light of the facts and arguments set out above, the
Government of the Islamic Republic of Iran requests the Court to adjudge and
declare:
1. That the Preliminary Objection of the United States is rejected in
its entirety;
2. That, consequently, the Court hasjurisdiction under Article XXI(2)
of the Treaty of Arnity to entertain the claims submitted by the
Islamic Republic of Iran in its Application and Memorial as they
relate to a dispute between the Parties as to the interpretation or
application of the Treaty;
3. That, on a subsidiarybasis in the event the PreliminaryObjection is
not rejected outright, itdoes not possess, in the circumstances of
the case, an exclusivelypreliminary character within the meaning of
Article 79(7) of the Rules of Court; and
4. Anyother remedy the Court may deem appropriate.
'.
...........................
AliH. Noban
Agent of the Government of
the IslamicRepublic of Iran CERTIFICATION
1.the undersigned, Ali H. Nobari, Agent of the IslarnicRepublic of Iran. hereby
certify that the copy of each document attached in Volume II of theObservations
and Subrnissions on the U.S. Prelirninary Objection subrnitted by the Islamic
Republic of Iran is an accurate copy and that the translations includrd in or
accornpanying such documents are accurate and cornplete translations of the
original language text of such documents.
(Signed) -.
Ali H. Nobari
Agent of the IslarnicRepublic of Iran ANNEX
RESPONSETOTHE U.S.STATEMENTOFFACTS
A. Introduction
1. As explained in Part 1of this pleading the greater part of the
U.S. Preliminary Objection, rather than addressing jurisdictional issues, consists
of no more than a list of alleged Iranian actions in the Persian G-lalleged
attacks on commercial shipping, and on U.S. shipping and U.S. military forces,
and the alleged use of offshore oil platforms to supportsuch attacks. Such
allegations have no relevance to the jurisdictional question raised by the United
States. The onlyrelevance such allegations could possiblyhave isto the question
ofwhether or not the U.S.attacks on the oilplatforms were legallyjustified,which
is self-evidently a question for the merits. For this reason, Iran has chosen to
make a response to the U.S. allegationsin this Annex. The Court is also referred
to Iran's Memorial,which quite properly addressed the merits of the case, and
which in Part1contains a detailed presentation of the facts that anticipates many
of the U.S. allegations. In what follows, Iran will not attempt to summarise
everything that was said in its Memorial, nor willit attempt to respond to every
allegation made by the United States. This does not mean that Iran admits the
truth of any allegation to whichites not respond. Such response willbe left to
the appropriate time.
2. Iran willonsider below fivegeneral issuesfir thet,verall
context of theIranIIraq war and the U.S. tilt towards Iraq; second, the war as it
affected the situation in the Persian Gulf, and U.S. policy in the Persian Gulf;
third, the general accusation that Iran attacked non-U.S. flagcommercialvessels;
fourth, the specific allegations that Iran attacked U.S. vessels; and, finall~,the
attacks on Iran'soilplatforms.
B. TheContext:Iraq'sWaron Iranand U.S.SupportforIraq
3. The United States argues that it is "important for the Court
to appreciate that each ofhese events [the U.S. attacks on Iranian oil platforms
on 19 October 1987 and 18 April 19881occurred during the eight-year warbetween Iraq and lranl". Iran strongly agrees. It is vital to appreciate not only
Iran's positionin the war but also the U.S. attitude to the war. It is only against
this factual background that the legalityof the U.S. attacks on the platforms can
properly be judged.
4.
The overall context of the war was set out in some detail in
Chapters II and III of Part 1 of Iran's Memorial. Certain key points will be
recalled here. At the time of the events in question in this case, Iran had for over
seven years been subject to continuous aggressionfrom Iraq, threatening the very
existence of Iran, in one of the longest and most destructive conflicts of this
century. Iran's civilianpopulation, including its major cities, had been subject to
repeated missileand chemical attack.
5. Since the beginning of the conflict, Iran had called on the
international community to acknowledge and condemn the acts of aggression
committed by Iraq. However, it was not until 1987that the SecurityCouncil even
acknowledged the existence of a breach of the peace between the two States and
demanded a cease-fire by introducing Resolution 598.2. This Resolution still did
not recognize Iraq as the aggressor. The United States had apparently made it
clear in negotiating the Resolution that it would not accept any language that
named Iraq as aggressor 3.
6. Iran has been accused of being the recalcitrant party in
bringing about a peace settlement pursuant to Resolution 598 (1987), while Iraq
isalleged to have been willingto negotiate. This is plainlyuntrue. When Iran did
make steps towards peace, Iraq cynicallydisregarded its earlier promises, as Iran
had always predicted it would. FO~ example, after moves by Iran to implement
Resolution 598 (1987) in late 1987and early 1988,Iraq responded with a massive
Scud missile and bombing attack. Similarly,when Iran unconditionally agreed to
a cease-fire on 18 July 1988, Iraq responded by a further invasion of Iranian
4
territory, talung over even larger areas that in its 1980invasion .
-
1 .U.S. Preliminary Objection, p. 4, para. 1.01.
2 See, in general, Iran'sMemorial, pp. 26-32,paras. 1.58-1.74. Resolution 598 (1987)was
the first adoptedder Articles 39and 40of the Charter.
3 Sick,G.: "Trial by Error: Reflections on the Iran-Iraq War", Middle East Journal, Vol.
43,No. 2,1989,p. 240. Iran'sMemorial, Exhibit 9.
4 See, Iran'sMernorial, pp. 30-31,paras. 1.69-1.71. 7. It was not until eleven years after the conflict began that
Iran's position was vindicated. Itsufficesto recall here the conclusions of the
Further Report of the Secretary-General on the Implementation of Security
Council Resolution 598 (1987). This Report, dated 9 December 1991,placed full
responsibility forthe conflicton Iraq. The Report began by noting that:
"..the war between Iran and Iraq, which wasgoing to be waged for
so many years, was started in contravention of international law,
and vio tions of international law give rise to responsibilityfor the
conflictl.
It went on to note that the specificconcern of the international communityin this
context was "the illegal use of force and the disregard for the territorial integrity
of a Member state6". The Report then gave its finding that the "outstanding
event" under these violationswas:
"..the attack of 22 September 1980 against Iran, which cannot be
justified under the Charter of the United Nations, any recognized
rules and principles of international law or any principles of
interna9onal morality [and thus] entails the responsibility for the
conflict".
The Report pointed out that Iraq's explanations for its actions 011.22September
1980"do not appear sufficient or acceptable to the international community"and
added that Iraq's aggression againstIran "whichwas followedbv Iraq'scontinuous
occupation of Iranian territory during the conflict" was "in violation of the
prohibition of the use of force, which is regarded as one of the rules of ius
cogens 81.
8. Iran believes that both its actions and those of the United
States should be judged in this context. As explained in Iran's Memorial, the
United States had both general and special obligationstowards Iran in the context
'ofthe war -under the U.N. Charter, under Security Council Resolutions relating
5 Further Report of the Secretary-Generalon the Implementationof SecurityCouncil
Resolution598(1987) 9'December 1991(3123273 para.5. Iran'sMemorial,Exhibit
-2.
6 Ibid.
7 M., para.6.
8 I.id9para.7(emphasisadded).to the war, and under the Treaty of Amity9. It is true that there had been a crisis
in the relations of the two States after the Islamic Revolution, but the Algiers
Declaration of 19January 1981purported to be "a mutually acceptable resolution
of the crisislof', and the United States had withdrawn the Diolomatic and
Consular Staff case from the Court. There was thus no impediment to Iran-U.S.
relations.
9. At a very minimum, therefore, the United States had a duty
to rernain strictly neutral. In Iran'siew, U.S. obligations both under Article 1of
the Treaty of Amity and under the U.N. Charter might have required more than
neutrality from the United States. However, for the purposes of the following
discussion, U.S. actions will be considered in the light of the obligations of a
neutral.
10. On the diplomatic and political front, the United States gave
its full support to Iraq in the Security Council and in the internationalommunity
as a whole. It reestablished full diplomatic relations with Iraq in 1984, in the
middle of the conflict. In the Security Council it opposed al1attempts to name
11
Iraq as the aggressor in the war .
11. Economic assistance to Iraq was equally important. The
United States took Iraq off its list of States supporting terrorism in 1982. The
U.S. Defence Department's Director for Counter-Terrorism pointed out that
there was no doubt about Iraq's continued involvement in terrorism. The real
reason "was to help [Iraq] succeed in the war against 1ran12". This step was
important because it allowed an increase in trade between Iraq and the United
States, also allowing dual use equipment (equiprnent that could have military or
civilian use) to be exported from the United States to Iraq. Trade with Iraq
increased substantially during the war and massive loans were made to Iraq which
9 Iran'sMemorial, pp. 32-33,paras. 1.75-1.79.
1O See, the Preamble of the General Declaration. The full text of the Declaration is
printed in 1Iran-U.S. ClaimsTribunal Reports, 1981-82,pp. 3,
11 See, for example, Sick, G.: "Trial by Error: Reflections on the Iran-Iraq War", Middle
East Journal, Vol. 43, No.2, 1989,p. 240. Iran'sMemorial, Exhibit 9.
12 The Washington Post, 16September990. Iran'sMemorial, Exhibit 46.were known to be used by Iraq for militarya~~uisitions'~. In contrast, economic
sanctionson exports to Iran remained inforcethroughout the conflict.
12. The United States also provided direct and indirect military
assistance to Iraq. Thus, the United States re-flagged Kuwaititankers although it
was known that Kuwait was an ally of Iraq and was using its oilrevenues to
support the Iraqi war effort. The United States put in effect "Operation Staunch"
which wasdesigned to prevent arms from anywhere in the world from reaching
Iran. This was combined with a near blockade of Iranian ports and coastlines
together with comprehensive monitoring and surveillance of vessels goingto and
from such ports14. On the other hand, the United States took no action to
prevent the sale of arms to Iraq, itself providing Iraq with both militaryand dual
use equipment15. Perhaps most significantly,the United States entered into an
agreement to provide Iraq with military intelligence during the war. This
programme was begun in 1984and extended in scope in 1986. Its purpose was
expresslyto provide "intelligenceand advice [to Iraq] with respect to the pursuit
of the war16". U.S. Airborne Warning and Control Aircraft (AWACS) were
deployed "to supply Iraq with intelligence information ...on Iranian military
movements 1711.
13. The abave elements of U.S. policy are only what have
appeared in the public record, and have been publicly acknowledged by U.S.
officials. Apart from these general aspects of U.S. policy,Iran was also subject to
constant harassment and provocation by U.S. forces in the Persian Gulf. On
hundreds of occasions, U.S.forces violated Iran'sterritorial sovereignty, infringed
Iran's airspace, and intercepted Iranian aircraft and naval vessels,both civiland
13 Ibid.
14 See, Weinberger, C.W.:ightin~ for Peace: SevenCritical Years in the Pentagon, New
York, Warner Books, 1990,p. 358. Iran'sMemorial, Exhibit 44.
15 See, Boyle, F.A.: "International Crisis and Neutrality: U.S. Foreign Policy toward the
Iraq-Iran Warn,in Leonhard,A.J. (ed.): Neutrality-Changing Concepts and Practices.
University Press of America, 1988, pp. 73-74.xhibit 15. This article contains a
detailedreview of non-neutral U.S. actions during thes,aralso, The Washington
-ost, 16September 1990. Iran'sMemorial,xhibit 46.
16 Congressional Record - House of Representatives, 9 March 1992, H1109. Iran's
Memorial, Exhibit 47.
17 See, ~o~le,F.A.z. u., p. 71. Exhibit 15.military. Iran lodged repeated protests with the U.N. Security Council against
such actions18. There is no evidence of any such hindrance of Iraqi attacks. To
the contrary, as explained above, the United States was supplying Iraq with
information about targets. Iran also had reason to believe that the United States
supported Iraqi attacks by electronic jamming of Iranian communications and
early warning electronic surveillance systems, assisting Iraqi planes in finding
targets, and timing U.S.attacks to coincidewith Iraqi offensives19.
14. It is these facts which give substance to the statement made
by the U.S. Assistant Secretary of Defence at the time that by its actions in the
Persian Gulf the United States became "de facto allies of Iraq"while at the same
time "doinga lot of things to teach the Iranians a lesson20".
15.
Thus, while the United States officially proclaimed its
neutrality throughout the conflict, in fact it intervened in many different ways -
politically, diplomatically, economicallyand militarily - on behalf of Iraq. At the
same time the United States was taking a series of actions to undermine Iran's
war efforts, which unlike Iraq'swere a lawfulexercise of the right of self-defence.
Examples of such actions were already given in Iran's ~emorial~l. The
information given there is supported by statements of U.S. government officials
and has not been questioned in any way by the United States in its Preliminary
Objection. In the words of Henry Kissinger,to take just one example, the United
States "supported Iraq against ~ran~~". Iran took the view that this support
clearlyviolated the rules of neutrality. In some instances, the United States went
further, effectively caryng out a series of armed attacks against Iran. Arnong
these actions should be included the U.S. attacks on Iran'soilp1atforms23.
18 Copies ofthese protests are included in Iran'sMemorial, Exhibit 31.
19 Electronic jamming occurred oneveral occasion&, for example, the statement by
Iran'sWar Information Spokesman on 17December 1987. Iran'sMemorial, Exhibit 48.
20 InterviewwithLaurence Korb, Former Assistant Secretaryof Defence, on CNLarry
King Live,2 July 1992. An extract from the transcript of this interview is included in
Iran'sMemorial, Exhibit 51.
21 Iran'sMemorial, pp. 34,et seq.,paras. 1.80,..
22 Kissinger,.A.: "Clinton and the World" in Newsweek,1 February 1993,p. 12. Iran's
Memorial, Exhibit 45.
23 "Armed attacks" both in the sense of the actual use of force but also in the wider
definition referred to by Judge Jennings in his Dissenting Opinion intam and
Paramilitam Activities in and against Nicaragua (Nicaragua. United States of
America). Merits, Judgment. I.C.J.Reports 1986,pp. 542-544. C. U.S.Policvin thePersian Gulf
16. The U.S. policy of support for Iraq and hostility towards
Iran was most evident in U.S. actions in the Persian Gulf. Understood in this
sense, Iran can agree with the statement in the U.S. Preliminary Objection that
events in the Persian Gulf help to explain why U.S. forces attacked Iran's oil
platforms24. There are three important points about the situation in the Persian
Gulf during the Iranflraq war which help to place Iranian and U.S. actions in
context. m, the danger to commercial shipping was created by Iraq. Second,
Iran's soleinterest was in keeping the Persian Gulf free of danger because nearly
al1Iran's trade went by sea to and from ports on the Persian Gulf. Third, if the
United States (or other third States) had really wanted to protect commercial
shipping in the Persian Gulf they could have done so bybringing pressure on Iraq
to stop its attacks or byaking action through the Security Council. Bycontrast, in
the Kuwait crisis,the United States went out of itswayto obtain Security Council
approval for al1its actions.
17. Sir Anthony Parsons, British Ambassador to the United
Nations at the time, makes al1three points succinctly:
"...there was no specific, international condemnation of the Iraqi
attacks and no serious attempts made to persuade or coerce Iraq
into desistingfrom them, this in spite of the fact that al1members of
the international community must have realized that, if Iraq
stopped attacking shipping Iran would follow suit immediately.
Iran had no interest in endangering the sea2&yesthrough which al1
her exports and most of her imports passed .
Another expert on the Iranflraq war confirms fully this analysis with particular
reference tothe attitude of the United States:
"...the Iranians are the party most interested in keeping the
[Persian] Gulf open to tankers. It has been Iraq, not Iran, that over
the years has attacked and disrupted by far the most shipping, for
the simple reason that Iran depends completely on the [Persian]
Gulf and the Strait of Hormuz to export al1its oil,while Iraq sends
its oil abroad by pipeline. The United States could do far more to
pacify the [Persian] Gulf, if that is what it really wants to do, by
24 U.S. Preliminary Objection, p. 5,para. 1.03.
25 Parsons, Sir Anthony: "Iran and the United Nations, with particular reference to the
Iran-Iraq War" in Ehteshamk, and Varasteh, M. (eds.): Iran and the International
Community, Routledge, London, 1990,pp. 19-20. Exhibit 16. persuading Iraq to stop its attacks on Iranian shipping, whic%&:e
what started and perpetuate the navalwar in the [Persian] Gulf .
18.
Finally,Senator Sam Nunn, Chairman of the Cornmittee on
Armed Services of the U.S. Senate, spelt out the reality of the situation in a
Report of 29 June 1987. He noted that the United States was supporting Iraq by
its actions in the Persian Gulf:
ally Iraq. It is difficult to justiQiu.8.onactionsat..when America is
indirectly protecting the interests of Iraq who started the 'tanker
war' and who has conducted about 70 per cent of the ship attacks,
includingattacks on vessels of America's allies. ...The U.S. decision
to protect Kuwaiti tankers is view59 in the region as a clear
alignment with Iraq and its Gulf allies ".
19. The "alignment" spoken of by Mr. Nunn was really an
alliance. In July 1987,a U.S. spokesman admitted that the United States had "an
important stake in Iraq's continuing ability to sustain its defenses28". Vice-
President Bush admitted that the United States was looking for means "tobolster
Iraq's ability and resolve to withstand Iranian atta~ks~~". This support included
financial aid, the provision of arms and dual-use equipment to Iraq as well as
access to U.S. military intelligence3'. The U.S. Assistant Secretary of Defence at
the time, Laurence Korb, was explicit, stating in an interview on CNN on 2 July
1992that:
"...when the United States went into the [Persian] Gulf it was not
simply ..to escort Kuwaiti tankers. We wanted to ensure that Iran
did t win that war. In other words, we became de facto allies of
IraqYI! .
26 Keddie, N.R.:"Iranian Imbroglios: Who'sIrrational?", World Policv Journal, Winter
1987-88,p.46. Iran'sMernorial, Exhibit 34.
27 26 I.L.M.1464(1987),at pp.1467and 1469. Iran's Mernorial,Exhibit 32.
28 Department of State Bulletin, July 19p.66. Iran'sMernorial, Exhibit 49.
29 Congressional Record - House of Representatives, 2 March 1992, H860. Iran's
Mernorial, Exhibit 50.
30 Ibidy9 March 1992,H1109. Iran's Mernorial,Exhibit 47=, also, The Washington
-ost, 16September 1990. Iran's Mernorial,Exhibit 46.
31 Interviewwith Laurence Korb, Former Assistant Secretary of Defence, on CNN's
King Live, 2 July 1992. An extract frorn the transcript of this interview is included in -
- Iran'sMernorial, Exhibit 51.As Assistant SecretaryKorb also noted, the United Stateshad a hidden agenda:
"Iraq was destroying many more ships trying to get out of the
[Persian] Gulf than Iran was at that time. But when wewent in,we
wanted to ensure that Iran didn'twin that war from Iraq. That was
our real objective, and so we were doi%a lot of things to ensure
that we could teach the Iranians a lesson ."
It is this situation and this policy whichreally explains the U.S. attacks on Iran's
oil platforms. The United States was trying to find waysto "teach the Iranians a
lesson".
D. The United States Cannot Justifv Its Attacks on Iran'sOil
Platforms bv Reference to Alleged Iranian Attacks on
Commercial Shiwing
20. The United States now protests that its policy aim in the
Persian Gulf was "to protect merchant ships flying the U.S. flag, and later to
protect U.S.-owned and other merchant ships flying other flags33". Before
turning to the consideration of alleged Iranian attacks on U.S. flag vessels
(discussed in thenext Section), it is appropriate to consider the U.S. emphasis on
alleged attacks on non-U.S. flagvessels.
21. The greater part of the U.S. statement of facts consists of a
list of allegedranian attacks on non-U.S. flag vessels. Itis never made clear by
the United States what is supposed to be the relevance to this case of this
material. Implicitly, the United States appears to want to use such attacks to
justify its own attacks on Iran's oil platform-in other words, to characterize its
attacks on the oilplatforms as in part an act of collectiveself-defence.
22. The attacks on the oil platforms were not and cannot be
characterized as an act of collective self-defence by the United States, and, for a
number of reasons, the United States cannot use alleged attacks on commercial
shipping - even if Iran were responsible for such attacks- as a justification for its
own attacks against Iran.
23. m, the United States never felt it necessary to defend
shipping against Iraqi attacks.As already shown,the source of the violence in the
32 Ibid.
33 U.S. Preliminaq Objection, p. 10,para. 1.11.Persian Gulf was Iraq. Iraq carried out attacks on commercial shipping of al1
nations. It did not restrict its attacks to any prescribed exclusionzone, nor did it
limitits attacks to vesselstrading with Iran. Iraq followed a policyof "shoot first -
identify later". Iraq was responsible for the great majority of al1attacks, and its
attacks - carried out with sophisticated missiles,like the Exocet -were violent and
destructive. Iraq also carried out a direct attack on a U.S. warship, the U.S.S.
Stark, causing great damage and tragic loss of life34. Iran neither did carry out,
nor could have carried out, an attack on this scale. However, despite al1these
circumstances, the United States never once tried to hinder Iraq in its attacks nor
did anything to seek to protect commercial shipping from such attacks. Even
after the attack on the Stark, the United States felt no need to carry out an act of
self-defence or retaliation against Iraq. To the contrary, as has already been
explained, the United States continued to do as much as it could to support Iraq.
In such circumstances, the United States cannot use its alleged concern for
commercial shipping tojustify itsattacks on Iran.
24. Second, U.S. policywas strictly limited at this time only to
providing assistance to U.S. flag vessels,hence the need to reflag Kuwaiti vessels
as U.S. flagvesselsin order to qualifythem for U.S. protection. At the time of the
attacks on Iran's platforms, the United States was not prepared to defend third
States' shipping. It was not until 29 April 1988 - after the second attack on the
platforms -that this policywaswidened, when U.S. Secretary of Defence Carlucci
announced:
"Aidwill be provided to friendly, innocent, neutral vessels flyinga
non-belligerent flag outside declared war-exclusion zones that are
not carrying contraband or resisting legitimate visitand search by a
Persian Gulf belligerent. Followinga requestfrom the vesse1under
attack, assistance will be rendered by a U.S. warship or aircraft if
this unit 3j n the vicinity and its mission permits rendering such
assistance ."
25. Third, quite apart from U.S. policy,this is simplynot a case
where collective self-defence can be invoked. The conditions required by
international law for an act of collective self-defence are alluded to in Secretary
Carlucci'sstatement cited above: aid would onlybe givento vessels"under attack
-- -- --
34 See,Iran'sMernorial ,p.17-20,paras.1.33-1.40.
35 See,O'Rourke,R.: "Gulf Ops" in Proceedings/NavR aleview 1989,p. 42, atp. 47.
Exhibit17.and only "after a request" from such a vessel. Neither of these conditions are
present asjustifications of the U.S.attacks on Iran'soil platforms.
26. Finally, Iran cannot but recall that in the Kuwait crisis the
United States waited not onlyfor arequest from Kuwaitbut also for explicitU.N.
approval before using force in defence of Kuwait. In thiscase the United States
made no attempt to request U.N. approval for action against Iran. To the
contrary, U.N. Security CouncilResolutions required third States to exercise the
"utmost restraint" in relation to theonflict~~.In any event, in the circumstances
of the Iranflraq war any Security Councilapproved act of collective self-defence
should have been in support of Iran, not against Iran.
27. In the light of the above, the United States cannot use
alleged Iranian actions against neutral shipping as a justification for its attacks on
Iranian oil platforms. Without prejudice to this position, Iran will make the
following comment on the U.S. allegations. As already noted, Iran's main
concern was to keep the Persian Gulf free of conflict since al1its oil exports and
the majority of its trade went by sea, using ports on the Persian Gulf. It was Iraq
which had an interest in taking the war into the Persian Gulf. Iran's concernwas
not only to protect itsown trade and shipping, but also to dissuade third States
from violating the laws of neutrality. It became increasingly apparent that
allegedly neutral States like Kuwait and Saudi Arabia were not only financially
supporting Iraq, but were also opening up their ports to Iraq, and providing other
forms of military assistance to Iraq.hese facts are wellkr~own~~. A number of
these points, insofar as they concerned Kuwait, were borne out by a November
1987Report to the U.S. Senate Committee on Foreign Relations, which stated
explicitlythat Kuwait had "chosen to serve as Iraq's entrepot and thus as its
facto ally3'". The same Report noted that "frorn the beginning of hostilities ...
Kuwait put aside its past differences with Iraq" and entered into a "'strategic
marriage of convenience'with ~a~hdad~'":
36 See, for example, Resolution 479 (1980) of 28 September 1980. Iran's Memorial,
Exhibit 24.
37 See,Iran's Memorial, pp.g2seq .ras. 1.43,a..
38 See,"War in the Persian Gulf: The U.S. Takes Sides",Staff Report to the Committee
on Foreign Relations of the U.S.te, November 1987,100th Congress, 1st Session,
Washington, U.S. Government Printing Office, 1987,p. 27.'s Memorial, Exhibit
a. "Kuwait permitted the use of its airspace for Iraqi sorties against
Iran, agreed to open its ports and territory for the transshipment of
war material (mostly of French and Soviet origin), and joined with
the Saudis in providing billions of dollars in oil revenues to help
finance the Iraqi 4811r effort. In clear and unmistakable terms,
Kuwait took sides .
Kuwaiti aid was notjust financial, it was also militaryand logistic. Cordesman and
Wagner note:
"Kuwaithad also increased the risk of Iranian attacks ...by allowing
Iraqi planes to overfly Kuwait so that they could fly down the
southern coast of the [Persian] Gulf and attack Iranian shipping
without warning. It also seems to have allowed the Iraqi Navy to
send small ships down the Sebiyeh waterway between Kuwait and
Bubiyan Island and~ay have allowed Iraqi helicopters to stage out
of Kuwaiti territory ."
Iran found this situation doubly unacceptable because the war had been started
and was being continued by Iraq's aggression.
28. In response to this situation, Iran exercised the right of visit
and search. This right was exercised throughout the latter years of the war, with
Iran often visitingand searching, or at least asking for identification from, vessels
on a daily ba~is~~. A copy of the Iranian Navyls operational instructions for
exercisingthese rights is attachedas Exhibit 20. In carryingout these actions, Iran
was concerned primarily with goods heading towards Kuwait and Saudi Arabia,
both States which were known to be violating the laws of neutrality by their
support of Iraq.
29. Iran has analysed the specific incidents referred to in the
U.S. pleading as examples of Iranian attacks on commercial shipping, using in this
40 Ibid.,p. 37.
41 Cordesman, A. H. and Wagner, A.R.:The ~es'sonsof Modern War, Vol. II. The Iran-
Iraq War, WestvieulPress,Boulder and San Francisco, 1990,p. 278. Exhibit 18.
42 See, for example, Peace, L.:"Major Maritime Events in the Persian Gulf Between
1984and 1991: A Juridical Analysisn,Virginia Journal of International Law,Vol. 31,
1991,pp. 549-551. Iran'sMemorial, Exhibit 30. Peace notes that over 18months, Iran
said it had searched over 1200vesselsand seized the cargo of thirty. In November 1987,
Iran reported that it wassearching up to twenty vesselsa day.C Monitoring),
ME/0011, Gn, 27 November 1987. Exhibit 19.analysisthe sources givenby the United tat tes^ O^n.the basis of U.S. sources, in
only 6 out of 60 incidents referred to by the United States is there a suggestion
that there were crew casualties. More importantly, only 3incidents involvingcrew
casualties are confirmed in the United Nations'reports, and there must be serious
doubts about the accuracy of two of these reports44. In only 5 other cases are
there reports of crew injuries. The majority of incidents report no damage or only
minor damage to the vessel.
30. Nearly al1 the alleged "attacks" referred to by the United
States concern vessels trading with Kuwait and Saudi Arabia (Le. trade with
States militarily and financially supporting the Iraqi war effort). The Security
Council never condemned Iraqi attacks on vesselstrading with Iran, despite Iran's
repeated protestations that this effectively legitimised such attacksU. If third
States had wanted to, or now want to, present claims against Iran for its alleged
attacks on their shipping, they could have done so. They could also have sought
U.N. support at the time for joint action against Iran. No such step was or has
been taken. In fact, one State, Kuwait,has since expressed its regret for positions
it adopted during the Iran-Iraq war.
31. In such circumstances, the United States cannot pretend its
attacks on Iran's oil platforms were justified by alleged Iranian attacks on non-
U.S. flag shipping. It can be seen that the United States showed no concern for
non-U.S. flag commercial shipping - positively supporting Iraq and taking no
43 Alleged Iranian Silkwormmissile and mine attacks are considered separately in Section
E below.
44 The three vessels which suffered crew casualties according to the United Nations'
reports were the Wu Jiang (4 crew killed) onbruary 1987,the Gentle Breeze (1
crew killed) on 21 September 1987, and the Estelle Maersk (1 crew killed) on 5
December 1987. However, Sreedhar and Kaul, another source relied on by the United
States, give no report of an attack on the Gentle Breeze, and both Sreedhar and Kaul
and other sources suggest that the "attack"on the Wu Jiang caused no damage and no
casualties.
Even the United Nations suggests that this attack wasessful.&,
Sreedhar and Kaul: Tanker war: Aspect of Iraq-Iran War (1980-88),ABC Publishing
House, New Delhi, 1990. U.S. Preliminary Objection, Exh&,italso, the Report
of the Secretary-General in pursuance of Security Council Resolution 552, U.N. Doc.
S/16877/Add. 5, 31 December 1987. U.S. Preliminary Objection, Exhibit 14.
regard to the alleged attack on the Wu@,ialso, Middle East Economic Suni9v,
March 1987,p. A8, which also States that 3 missiles were fired at this vessel but al1
missed. Exhibit 21.
45 See,Part 1,Chapter 1,para. 1.10,above.action to hinder Iraqi attacks. In any event, none of the conditions for an act of
collectiveself-defence are fulfilled.
E. AllegedIranianActionsagainst the UnitedStates
32. Iran has shown above that the United States cannot justify
its attacks on Iran'soi1platforms by reference to alleged Iranian attacks on non-
U.S. flag commercial shipping. The remaining question is whether such attacks
can be justified by alleged Iranian attacks on the United States. The United
States argues that its own attacks on Iran's oil platforms must be seen "in the
context of a long series of attacks by Iranian military and paramilitary forces on
U.S. ..vesselsengaged in peaceful activitiesin the [Persian] GUIP~~.
33. In fact, there was no such "long series of attacks" nor was
there even any hostility shownto U.S. forces. Such a description of the situation
totally conflicts with statements made by U.S. officials at the time. Caspar
Weinberger, U.S. Secretary of Defence, stated that Iranian forces demonstrated
"a decided intent to avoid Arnerican ~arshi~s~~",another U.S. officia1pointing
out that "Iran has been careful to avoid confrontations with U.S. flag ~essels~~".
The Commander of the U.S.S.Sides, a U.S.warship stationed in the Persian Gulf,
commented that the conduct of Iranian forceswas "pointedlynon-threatening49".
34. Iran is only aware of two incidents involving Iranian and
U.S. forces. The first took place on 21-22 September 1987,when the United
States destroyed the Iran Air. The second occurred on 8 October 1987when U.S.
helicopters attacked and sank three Iranian patrol boats near Farsi island. The
United States also refers to these incidents, but seeks to qualifythem as Iranian
attacks50. Iran denies that either the Iran Air or the patrol boats had engaged in
any illegalaction that might havejustified the U.S. attacks5'. Iran also notes that
46 U.S.Preliminary Objection, p. 4, para. 1.01.
47 Weinberger, C.W.:Fighting for Peace: Seven Critical Years in the Pentagon, Warner
Books, NewYork, 1990, p.401. Iran'sMemorial, Exhibit 44.
48 Department of State Bulletin,y 1987,p. 60. Iran'sMemorial, Exhibit 54.
49 Carlson, Commander D.: "The Vincennes Incident", Proceedings/Naval Review,
September 1989,p. 87. Iran'sMemorial, Exhibit 55.
50 See, U.S. Preliminary Objection, pp. 12-13,para. 1.15,and p. 15,para. 1.21.
51 Iran'srecord of these events isgivenat pp. 39-41,paras. 1.97-1.100ofIran's Mernorial.the United States has provided no independent evidence showing such illegal
action. The evidence that the IranAir was layingmines or that the patrol boats
had earlier fired on a U.S. helicopters based solely on assertions made at the
time by U.S. government sources in order to justify the U.S. attacks. This is
scarcely independent evidence. If the United States can produce no better
evidence, Iran suggeststhat it would be more appropriate to viewese attacks as
part of the wider policyof U.S. support for Iraq. They would help tolainwhat
the U.S. Assistant Secretary of Defence meant when he said that the United
States was "doing a lot of things" in the Persian Gulf "tosure that we could
teach theIranians a ess son n a"y.event, such incident-involvingdestruction
of Iranian vessels and loss of life, withno damage of any kind to U.S. f-cans
not justifythe U.S. attacks on the oilplatforms as self-defence.
35. Apart from these incidents, Iran is alleged to have laid the
mines which damaged the U.S.S. Bridgeton on 24 July 1987 and the U.S.S.
Samuel B.Roberts on 14April 1988. Iran is also alleged to have fired the missile
which hit the Sea Isle City on 16 October 1987. These are the O& incidents
allegedlyinvolvingIranian attacks on U.S.vessels. Each of these incidents willbe
discussed below: fir hetq,uestion of Silkworm missile attacks; and second, the
question ofminelaying.
(i) SilkwormMissiles
36. The United States alleges that Iran fired a number of
Silkwormmissilesat Kuwait in September andOctober 1987,andthat in one such
attack a Silkworm hit a U.S. flagged vessel,the Sea Isle City. The U.S. allegation
isagain based on bald assertions and no independent evidence is produced to
support these assertions. Anticipating such assertions, Iran has already made its
position clear on this question in itsrial'~. It willthus onlyrespond here to
a number of specificpoints made bythe United States.
37. The United States asserts that Iran hadSilkworms on Fao.
No attempt of proof is made by the United States. It is difficultfor Iran to prove
a negative. Iran can only point out that the Fao peninsula is almost entirely
52 See, Iran'sMernorial, Exhibit 51.
53 Iran's Mernorial, pg seq .,ras. 1.1g4seq..marshland, often subject to flooding, and throughout the period Iran held the
peninsula it was under near constant bombardment from Iraq. A Silkworm
missile- which requires some 40 lorries of equipment and a large area of stable
ground to be fired - would have been virtually impossible to use on Fao, would
have been vulnerable to Iraqi attack and would have served no useful tactical
purpose. Iran can also note that al1U.S. military analyses of the time contained
graphic diagrams showingIran as having its Silkwormmissilesaround the Strait of
Hormuz, hundreds of miles to the south of the Fao peninsula54. Moreover, when
explainingwhythe United States had not carried out retaliatory action against the
alleged Silkworm missiles sites on Fao, The Washington Post notes that
"intelligence sources" had reported on 20 October 1987 - only a few days after
Iran's alleged Silkwormattacks -that there were "no Silkworm launch sites at
Fao, making a militarystrike on thearea pointless55".
38. The United States also addresses the question of the range
of a Silkworm. Measuring from a tower on the Fao peninsula, it States that the
Sea Isle City lay at a distance of 94 kilometers from this tower, thus within the
range of a Silkworm,which the U.S. asserts is 95 ki~ometers~~.This statement is
inaccurate on every point. m, the tower is an observation tower built by the
Iraqis. It is not a Silkwormmissilesite. This tower ishown on an extract from a
map which has been attached as Exhibit 22. It can be seen that it is in the middle
of an area of land subject to inundation. A Silkworm could not even have been
fired from the vicinityof the tower.
39. Second, with regard to the question of range. It is true that
the "maximum effectiverange" of a Silkwormis stated bv the manufacturers as 95
kilometers. However, no expert actually believes it could be fired accurately to
anythinglike that distance. The United States givesthe design specificationsfrom
Jane's Weapon Systemsbut fails to mention the viewsof experts stated in Jane's
Defence ~eekl~~~. Thus, one expert notes:
54 See, Department of State Bulletin, October 1987,p. 43. Iran'sMemorial, Exhibit 67.
55 The Washington Post, 20 October 1987. Iran'sMernorial, Exhibit 69. It was suggested
that the missilesites might have been movedafter the attack,although howof
equipment (including missile launchers, etc.) couid have been moved from the Fao
marshlands across the Shatt al Arab isnot explained.
56 See, U.S. Preliminay Objection, Annex, p. 69, para. A1.19.
57 -Ibid.,footnote 67. "In its sales brochure, the missile's range is stated as 95 km,
altwgh Western analysts credit the range as no more than 80
km .
Cordesman and Wagner, perhaps the source on which the United States most
extensivelyrelieson almost everyother issue, states as follows:
"The Silkwormis most effective at ranges under 40 kilometers, but
it has an effective range of 70-80ilometers if a ship or aircraft can
desisnate the target and allow the Silkworm to reag$ the point
where its on-board guidance can home in on the target ."
This is the true position. Iran, however, did not have the necessasr equipment to
allow it todesignate a target for the missile at a range of over 40-50kilometers.
Thus, it was impossible for Iran to target vesselsat anygreater range. It wouldbe
a matter of sheer chance if a missilehit a target at any greater range. The United
States itself believed at the time that the maximum range of a Silkworm was 85
kilometers. This is the range given in the De~artment of State Bulletin of
October 1987 (k, contemporaneous with Iran's alleged attacks), which also
showsIran'sSilkwormspositioned around the Strait of ~ormuz~~.
40. Finally, it is necessary to consider the specific Silkworm
attacks of which Iran is accused. The United States alleges that Iran fired three
Silkwormsat Kuwait on 4-5September 1987. The United Statesstates one hit an
area of uninhabited coastline but does not indicate where. A second was
supposed to have hit near "Failaka Island"-presumably, this means it isalleged to
have landed in the sea. Finally, the third is alleged to have hit near the port of
Mina Abdullah, 30 miles south of Kuwait City. The United States does not
mention that Mina Abdullah is some 105kilometers frorn the tower on the Fao
peninsula, well beyond the Silkworm'srange even as stated by the United States.
As far as Iran is aware, none of these Silkworms are alleged to have caused any
damage.
58 Jane's Defence Weeklv,Vol. 7, No. 22,9 June p.1113. Exhibit 23. An article on
28March 1987was even morepessirnistic,onlycrediting the Silkworm with"upange
to 80 km". Jane's DefenceWeekly,Vol. 7,No. 12,28 Marchp.531. Exhibit 24.
59 Cordesman,A.H. and Wagner,k R.:OJ.a. p,274. Exhibit 18.
60 Department of State Bulletin, October 1987,p. 43. Iran'sMemorial, Exhibit 67. 41. Three other alleged attacks are mentioned - against the
Sungari on 15 October 1987,against the Sea Isle Citv on 16 October 1987,and
against the Sea Island oil terminal on 22 October 1987. Al1three of these vessels
were beyond the effective range of a Silkworm.The Sungari was at a distance of
95.67 km, the Sea Isle City at 94.88 km, and the Sea Island terminal at 91.88
km61.
42. Iran has made its best efforts above to prove a negative -
that it did not carry out these attacks. As explained in Iran'sMemorial, Iraq also
had Silkworms, including Silkwormsthat could be fired from the air, which Iran
did not possess. Iraq had no hesitation about carrying out attacks on Kuwaiti,
Saudi and U.S. vessels. Moreover, it isknown to have carried out other Silkworm
missileattacks on Kuwaitiand Saudi ships62.
43. In any event, it is not enough - in the circurnstances facing
Iran during the war - for the United States simply to state that Iran was
responsible for attacking the Sea Isle City and assume that, if this is the case, its
attack on Iran's oil platforms wasjustified. The United States has not shownthat
Iran would have been wrong to attack Kuwait, given Kuwait's role in the war.
The United States has not show that Iran would have been wrong to attack a
reflagged Kuwaiti tanker (even if reflagged under the U.S. flag). The United
States has certainly not shown that an attack on Iran's oil platforms hundreds of
miles away, sorne four days later was, in the circumstances, either necessary or
proportionate. At best, the U.S. action would be an illegal retaliation, designed
mainlyto further Iraq's cause and put pressure on Iran.
(ii) Iran'sAllerredMinelaving
44. Again, it is the United States which rnust bear the burden of
proof to show that Iran engaged in rninelaying in the Persian Gulf. It is the
'United States which alleges that Iran carried out the mine attack on the U.S.S.
Samuel B. Roberts and that this attack justifies the U.S. attack on the oil
platforms as an act of self-defence. Nevertheless, the United States has never
produced independent evidence of any kind to show Iran's involvement in
61 This distance is calculated from the tower pinpointed by the United States and relying
on U.S.coordinates for the positions of these vessels.
62 See, Iran'sMemorial, pp. 42-43,p1.105 ,nd Exhibit 68 thereto.minelaying. Most reports assert Iran's responsibilityfor minelaying on the basis
of the Iran Air incident discussed above. Iran's position on this incident was
stated in Iran's Memorial. The United States has never produced any evidence to
support its allegations that the Iran Air was engaged in minelaying.
45. Iran can only make the following comments. m, Iraq is
known to have laid mines in the Persian Gulf. For example, on 14Februaq 1982,
an Iranian tanker, the Mokran, hit an Iraqi mine near the port of Bandar
~ahshahr~~. A Greek freighter, the Evaneelia-S, hit an Iraqi mine on 11
September 1982~~. A Cypriot freighter, the Citv of Rio, struck an Iraqi mine
close to Bandar Khomeini on 1 February 1984~~. A Liberian freighter, the
Dashah, is reported as havingstruck an Iraqi mine some four miles from the Nasr
oil fields on 7 June 1984~~.Iraq thus had mines and could 1aythem from the air
almost anywhere in the Persian Gulf. Indeed, as the experience during the
Kuwaiti crisis shows, Iraq had a large arsenal of mines and had no hesitation in
using them 67 .
46. Second, Iraq at least had an interest in laying mines,
whereas Iran had none. Mines were a threat to Iranian shipping as much as to
any other shipping. In particular, the areas in the southern part of the Persian
Gulf and in the Gulf of Oman, where Iran is alleged to have laid mines, were
regulariy used by Iranian shipping or shipping trading with Iran. Thus, the Texaco
Carribean, which hit a mine off the port of Fujairah in the Gulf of Oman on 10
August 1987, was carrying Iranian crude It was out of concern for the
danger of mines to its shipping that Iran engaged in extensive minesweeping
operations. As one Iranian Naval Commander pointed out in a radio interview
on 17April1987:
63 Danziger, R.: "ThePersian Gulf Tanker Warn,Proceedings/Naval Review, 1985,p. 164.
Iran'sMemorial, Exhibit 16.
64 Ibid.
65 Ibid.,p. 165.
66 Ibid.
67 See, WiswallD.L.:"Neutrality, the Rights of Shipping and the Use of Force in the
PersianGulf", Virginia Journal of International Law, Vol. 31, 1991, p. 626.
Preliminary Objection, Exhibit 12.
68 Middle East Economic Survey,17August 1987,pA2. Exhibit 25. "For seven years, the Iranian Navy has maintained security in the
Persian Gulf. For seven years, Iraq has laid mines and we have
gathered them ..we have minehunting h&copters, minesweeping
ships,as wellas, minehunting divingteams ."
Apart from the risk to shipping, the presence of mines increased insurance
premiums for shipping,which was itselfan added burden on Iran's economy.
47. As Iran made clear in its Memorial, the only mines laid by
Iran were laid in the Khor Abdullah north of Bubiyan Island. These mines were
laid for purely defensive purposes to prevent Iraq from using this waterway to
70
attackIranian positions. Suchmines had no effect on commercial shipping .
48. Iraq, on the other hand, did have an interest in minelaying,
not onlyto disrupt shipping trading with Iran, but also to create exactlythekind of
threat which would be bound to increase the western powers' presence in the
Persian Gulf and thus increase the pressure on Iran. Iraq was successfulon both
counts.
49. Third, the mine threat in the Persian Gulf should not be
exaggerated. According to the United States, only 176mines were found during
the eight years of the war. Of these, 95were ~~arns~l. Myams are small Soviet
mines with only a 20 kg. charge and are designed for use in rivers and lakes
against small craft. The rest were apparently Soviet M-08 mines. Even these
mines were of little danger to tankers and larger merchant vessels. Moreover,
they were normally visibleon the surface of the water and could be avoided. No
serious campaign of mining wascarried out by either side.
50. The United States refers to nine vessels that were allegedly
hit by mines in 1987-88. The first four incidents are supposed to have taken place
in May-June 1987in waters off Kuwait, close to the edge of the Iraqi exclusion
.zone. Reports in fact differ as to whether these vessels were hit by missiles or
mines. Moreover, a number of reports suggest that if the vessels were hit by
mines, the mines had probably floated down from the zone to the north -very
possibly from the Shatt Al Arab or from the entrance to the port of Bandar
69 See, SWB(BBCMonitoring), ME/8650/An, 19August 1987. Exhibit 26.
70 See, Iran's Mernorial,pp.39-40,para. 1.97.
71 U.S.Prelirninary Objection, Annex, p. 67,para. A1.17,footnote 57.Khomeini, where Iraq was known to have laid mines. The United States produces
no evidence to show the mines were Iranian. In any event, none of these four
vessels were American and al1the reports suggest that the vessels suffered very
minor damage, with no casualties 72 .
51. Two other vessels (neither U.S. flag vessels) are alleged to
have hit mines in the territorial waters of the United Arab Emirates off Fujairah
in the Gulf of Oman in August 1987. The first incident, discussed above, involved
the Texaco Carribean, which was caryng Iranian crude oil from Larak Island,
and was therefore hardly likelyto be a target of Iranian attack. The second, the
Anita, a small "survey vessel",apparently sank without trace. Again, there is no
evidence that Iran had any part in placing these mines. Iran was as concerned as
anyone about the appearance of mines in this area, outside the Persian Gulf. A
large number of Iranian vessels used this area as a stopping off point before
entering the Strait of Hormuz. Following the Texaco Carribean incident, Iran
immediately protested about the laying of mines in this area and offered and
obtained permission to assist in the minesweeping efforts in the area3.
52. Apart from these incidents74, the United States holds Iran
responsible for layingthe mines which damaged the U.S.S. Bridgeton (a reflagged
Kuwaiti tanker) and the U.S.S. Samuel B. Roberts, a U.S. navy warship. The
United States has never produced any independent evidence of Iran's
responsibility for laying these mines. Once again, it is almost impossible for Iran
to prove a negative and the burden must be on the United States on this issue.
Nevertheless, Iran finds it extraordinary that a sophisticated U.S. warship (or
indeed a tanker being escorted by U.S. naval forces) should have hit an old M-08
Soviet mine, as is alleged.Such mines are normally clearlyvisible on the surface
and relatively easyto destroy or avoid. Moreover, the damage reports of both the
72 -See, also, Cordesman, A. H. and Wagner, R.:2. -., pp. 288, 291, and p. 345,
footnote 42. Exhibit 18. Cordesman and Wagner state that one of these four vessels
was hit by an "unidentified warplane". They also suggest that the Primrose and the
Marshal Chuvkovwere damaged by"free-floatingor breakaway" mines.
73 58.e=,Yealso, SWB (BBC Monitoring), ME/8650/A/4,19August 1987,and ME/8652/i, Exhibit
21August 1987. Exhibit 27.
74
Thitting a mine in 1=,7.U.S. Preliminary Objection, Annex, p. 64,para. A1.13. The
U.S. reports, however, conflict as to whether this occurred, if it did occur, off Farsi
Island or to the north of Bahrain. Moreover, reports differ as to whether the alleged
attack occurred in Julyor in September 1987.Brid~eton and the Roberts given in the press seem inconsistent with the kind of
damage that would be caused by an M-08. If hit, an M-08wouldblowup near the
front of a vessel at surface level. Both the Bridgeton and the Roberts were
apparently damaged close to the rear of the vessel and on its underside. This
suggests that the mines were bottomlaid, and far more sophisticated than M-08s.
The only sea mines in Iran's possessionwere M-08s. It had no such sophisticated
bottomlaid mines, whichwere, however, possessed by ~ra~~~. Finally,there are a
number of reports suggesting that the mines which damaged the Bridgeton and
the Samuel B. Roberts were either Iraqi mines or floating mines of unknown
provenance 76.
F. TheStatusof the Oil Platformsand theU.S.Attacks
(i) TheCommercialNatureof the Platforms
53. In its Memorial, Iran described the platforms attacked and
destroyed by the United states'17. The United States alleges that the Reshadat
platform, destroyed in the attack on 19 October 1987,was "inoperative as an oil
production fa~ilit~~~".What this means is that the platforms had already been
attacked twice by the Iraqi forces in October 1986and July 1987and that, at the
time of the U.S. attacks,were under repair7'. The United States also allegesthat
the Salman and Nasr platforms were being used for military purposes but admits
that these platforms were producing oil at the tirne of the U.S. attacksgO. In fact,
despite general allegations about the military use of the platforms to coordinate
attacks on shipping and in minelaying,the United States produces no evidence to
support such allegations.
75 -See, Wiswall,D.LS. a. p. 626. U.S. Preliminary Objection, Exhibit 12.
76 According to The Financial Times, 12 April 1987, Washington sources stated there
would be no retaliation for the attack on the Bridgeton because the United States "was
not sure who was responsible".n's Memorial, Exhibit 57. The United States also
points to a report that the Samuel B. Roberts hit an Iraqi mine. U.S. Preliminary
Objection, Annex, p. 67,para. A1.17,footnote
77 -See, Iran'sMemorial, pp. 9-11,paras. 1.14-1.18.
78 U.S. Preliminaq Objection, p. 21,para. 1.31.
79 Iran'sMemorial,.41,para. 1.101.
80 U.S. Preliminary Objection, p. 17,para. 1.24. 54. The United States also alleges that the oil platforms were
"armed and equipped with ,radar and communications devices beyond that
reasonably required for the defensive purposes alleged by 1ran8'". Again, this is
mere assertion and no attempt to support the assertion is made. m, it is
entirely a matter for Iran to judge what defensive equipment was necessary to
protect its oil workers and oil installations from the real threat of Iraqi attack.
Second, the actual equipment on the platforms was extremely lirnited in nature -
23 mm. anti-aircraft machine guns, and miscellaneous small weapons. The idea
that such weapons could have been used in any way against shipping is absurd.
No mines are alleged to have been found. There is no report of srnall patrol
boats or helicopters (allegedly used by Iran in actions against shipping) being
found at the platforms.
(ii) TheU.S.Attackson the Platforms
55. There is no dispute that the United States totally destroyed
the Reshadat platform by bombardment in its attack of 19October 1987. In its
Preliminary Objection, the United States asserts that it boarded and searched,
and then destroyed, another platform - the Resalat platform - "when Iranian
militarypersonnel on the platform engaged in action that threatened U.S. forces,
manning one of its two twin ZU-23 mm. guns to use against the approaching U.S.
forces82".
56. Again, this is a new version of events that conflictswith the
U.S. story at thetirne. At the time, a Pentagon spokeman stated that U.S. forces
had seen another platform being evacuated and that, when the platform was
abandoned, it was boarded by U.S. forces and destroyed. ~his was described by
the spokesman as a "target of opportunityg3". President Reagan's letter to
Congress about the incident also stated that this platform "had been abandoned
by the Iranians when the operation begangC. These versions are totally
81 Ibid.,p. 21, para. 1.31.
82 W., pp. 21-22,para. 1.32.
83 This version was given by Fred Hoffman, a Pentagon spokesman, in a press briefing
after the atta&,. The Washington Post, 20October 1987. Iran'sMemorial, Exhibit
-9.
84 Letter dated 20 October 1987from President Reagan to the Speaker of the House of
Representatives and the President Pro Tempore of the Senate, 23 WeeklyComp. Pres.
Doc. 1159-1160,26 October 1987. Iran'sMemorial, Exhibit 70.inconsistent with the allegation of hostile activityby alleged Iranian forces on the
platform.
57.
The attack on the Salman and Nasr platforms was also
described in detail in Iran's ~emorial~~. The United States alleges that in
"retaliation" for the U.S. attacks on the platforms, Iran deployed Iranian frigates
and small boats against "U.S.-owned or associated oil rigs, platforms and jack-up
rigs" and that in the resulting engagement two Iranian frigates and one missile
patrol boat were sunk or damaged and an Iranian F-4 damagedg6. Once again,
this is a travesty of the truth and bears no similaritywithany other U.S. record of
the events of 18April 1988.
58. m, the United States failsto mention that part of the plan
of the attack on 18 April 1988 was to destroy an Iranian frigate. Second, U.S.
allegations about an attack on U.S. owned oilplatforms is totally unsubstantiated.
The oil field where these attacks are supposed to have occurred - the Mubarak
field - is in fact Iranian owned and jointly operated with the U.A.E.. Third,
neither the frigates nor the patrol boat nor the Iranian F-4 were anywhere near
the Mubarak field at the time theywere attacked byU.S. forces.
59. Even the record of events given by U.S. officers involved in
the attacks contradicts the present U.S.version. Thus, one officer reportsthat the
-7shan the Iranian patrol boat, was simplyinformed by radio that it was to be
sunk and the captain was told to abandon ship. The Iranian frigate, the Sahand, -
allegedlyproceeding to the Mubarak oilfield,but in fact in the Strait of Hormuz -
was dived on by U.S. aircraft, and attacked with missiles. The Sabalan was also
bombed from the air even further from the Mubarak oil field - close to Larak
Island in the Strait of ~orrnuz~~.
60. These events only confirm the illegal nature of the U.S.
attacks. Even on the U.S. version of events, the U.S. attacks were totally
85 Iran'sMemorial,pp. 47,et seq., paras.1.114,et
86 U.S.PreliminaxyObjection,pp. 24-25,para. 1.38.
87 See, Perkins, Capt. J.B.: "Operation Praying Mantis: The Surface View",
Proceedines/Naval Review, 1989,p. 69.Iran's Memorial, Exhibit 80&, aiso,
Langston, Capt.B.and Bringle,Lieut. CommanderD.: "Operation Praying Mantis:The
Air View",~roceedines/NavalReview,May 1989,pp. 54-65. Iran's~emorial, Exhibit
-9.unnecessary and disproportionate. The United States itself described its first
attack as a reprisa1action. The United States made no atternpt to approach Iran
to settle any disputes it may have had with Iran about Iranian conduct, as it had
done after Iraq'sattack on the Stark. Nor did the United States atternpt to obtain
Security Council approval for the use of force against Iran. In fact, the U.S.
actions were clearly illegal and can only be explained as part of the wider U.S.
policyof assistingIraq in the war. In thiscontext, the United States was ready to
use any pretext for taking hostile action against Iran.
Observations and Submissions on the U.S. Preliminary Objections submitted by the Islamic Republic of Iran