•
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING OIL PLATFORMS
• (ISLAMIC REPUBLIC OF IRAN V. UNITED STATES OF
AMERICA)
•
VIEWS ON IRAN'S "REQUEST FOR HEARING IN RELATION
TO THE UNITED STATES' COUNTER-CLAIM PURSUANT TO
ARTICLE 80(3) OF THE RULES OF COURT"
• SUBMITTED BY
THE UNITED STATES OF AMERICA
• DECEMBER 18,1997
•
•
•
•1.
'e
VIEWS OF THE UNITED STATES OF AMERICA ON IRAN'S
"REQUEST FOR HEARING IN RELATION TO THE UNITED STATES'
• COUNTER-CLAIM PURSUANT TCOURT"CLE 80(3) OF THE RULES OF
• INTRODUCTION ANDSUMMARY
• 1. On 23 June 1997, the United States of America filed its Counter-Memorial in
this case. As provided in Article 80(1) of the Rules of Court, the United States included a
substantial counter-claim against the Islamic Republic of Iran. In connection with that
:• counter-claim, the United States showed that Iran's actions against U.S. and other neutral
shippingthe PersianGulfregion violated Article X of the 1955 Treaty of Anùty
between the United States and Iran. The United States itcounter-claimt
was directly conntothe subject matter of Iran's claim, inter a/ia, because both
require the Ctoaddresmanyof the same factual and legal issues.
• 2. In a letter dated 2 October 1997, the Agent for the Islamic Republic
indicated thathasserious objections to the admissibility of the United States'
• counterclaim." On 170ctober, the Vice-President met with representatives of the Parties
to discuss furtber steps in the case in light oflran's letter. The Agent for Iran stated that .
Iran was preparing written objections to the admissibility of the United States counter-
• claimBy letter of21 October, the Registrar invited Iran tothan18fy, "not later
• 2
November,the legalgrounds"forits opinion,andinvitedthe Uniteditstesto set forth
viewswithia monthof receivingIran's stat18November,thelslamic
•
Republicof Iranfileda documentcaptioned"RequestforHearingin Relationtothe
UnitedStates'Counter·ClaimPursuantto Article80(3)ofthe Rulesof Court."
• (Hereinafter,"Iran'sRequestforHearing.")
3. The UnitedStateswill showherethat the objectionstothe U.S.counter-claim
contained lran'sRequestforHearingareunfounded,andthatIran'sobjectionsrelating
•
tojurisdictionandadmissibilityare, inanycase,notappropriateforconsiderationbythe
Courtat this stage. Underthe Rulesof Court,the onlylegallyrelevantissuenowis
• whetherthereis "doubt" asto whetherthe U.S.counter-claimis"directlyconnectedto
the subjectmatter"of Iran'sclaim. Here,therecan beno suchdoubt. Thereistherefore
no basisforlran'sdemandfora hearingor for its insistencethat the counter-claimnotbe
•
joined to the originalproceedings.
4. A properunderstanding ofthe U.S.counter-claim,andofits directconnection
• to the subjectmatteroflran's claims,requiresfamiliaritywitheventsinthe PersianGulf
in the late 1980s,includingIran'srecurringattacksuponvesselsofthe United Statesand
othercountriesduringthatperiod.re describedin detailinthe U.S.Counter
•
MemorialandCounter-Claimfiledon 23 June 1997. In the interestsof brevity,we will
notreviewthe factsetailhere. lnstead,the UnitedStatesincorporatesbyreference,
• andrequeststhatthe Courttakefully intoaccount,the factualdiscussionsin the U.S.
Counter·Memorialand Counter-Ciaimof23 June 1997. The factsexplainedthereclearly
•
• li
1e 3 i
1
demonstrate the. counter-claim's direct connection with the subject matter of Iran's
daims .
•
5. In bringing its case, Iran asserted substantial daims against the United States
based on the 1955 Treaty of Amity, Economie Relations and Consular Rights and
• portrayed itself as an innocent victimdly unlawful attacks by the United
States. The United basanswereinpart with a counter-claim based on the same
• Treaty and growing outhe facts and events placed at issue by Iran. Iran bas put the
conduct and good faith of the United States at issue by filing its claims. It cannot now
evade the legal consequencesng done so, by arguing that its own conduct and
• good faith are somehow insulated from scrutiny.
•
•
•
•
• 4
••
PARTI
THE ONLY ISSUE UNDER ARTICLE 80 (3) IS THE CONNECTION
BETWEEN THE U.S. COUNTER-CLAIM ANDTHE SUBJECT -MATTER
• OF IRAN'S CLAIM
CHAPTERI
• THE LIMITED SCOPE OF PROCEEDINGS UNDER ARTICLE 80(3)
• 6. lran.'s request is filed pursuant to Article 80(3) of the Rules of Court. Article
80(3) is expressly limited to a single issue: ''theconnection between the question
presented by way counter-claim and the subject matter of the claim of the other party."
(Article 80(1) indicates that the two must be "directly connected.") Iran, however, asks
the Court to ignore the clear laitsRules and to address issues going far beyond
the limits of Article 80(3), including sweepintojurisdiction and admissibility
• 1
of the counter-cl•im
7. There is no basis for lran's disregard of the Court's Rule. On the.contrary,
•
there are good reasons for the narrow scope of any objections under Article 80(3). The
Rule basa limited purpose. It allows the Court to prevent the exceptional burdens on a
Party, and twasteof the Court's own time and resources, that might result from having
•
1
l, of the Rules. lt thereforeasksthe Courtto htoArticle80, paragraph3 of therticle80, paragraph
• Rules... " Iran'sRequestforHearingat p. 5, para 10.
•• 5
to dealin a singlecase withtwocompletelydifferentsets of factualandlegaldisputes.
However,whereclaim andcounter-claimaredirectlyconnectedas the Rulerequires, any
•
otherissuesrelatingto the counter-claimcanbeaddressedefficientlyin the courseof
proceedingson theprincipalclaim.
8. Irandrawsfalseanalogiesbetweenthe limitedproceedingsunderArticle80(3)
andproceedingsunderArticle79 relatingto PreliminaryObjections. Preliminary
Objections proceedingspermita partydwitha claimto seekearly considerationof
•
its objectionstojurisdictionandadmissibility. Thepartycan thusavoidbeing forcedto
litigateon the meritswherethereisnojurisdictionor wherea claimclearlyis
• madmissible. The situationis quitedifferentwitha counter-claim. Thepartyfacingthe
counter-claiminitiatedthe casehosethe forum. Proceedingsare undeiVIay.It is
bath reasonableandefficientfora counter-claimdirect!y connectedto the subjectmatter
•
of the initialclaimto beconsidered togetherwiththat claim.
9. In askingthe Courtto ignorethe linùtedscopeofArticle80(3),Iranessentially
• seeksa separateproceduresitnilarto preliminaryobjectionsunderArticle79to attack the
2
counter-claimagains•Thisis notthe functionof Article80(3). Iran'sobjectionsto
the admissibilityof the U.S.counter-claitninvolvingissuesotherthanconnectionare
•
simplyoutsidethe scopeof thatRule. Theyarenot appropriatefor resolutionat this
stageof Iran'scase.
•
2Inadditiontoits currentrequestfor a wide-ranginghearingon the U.S.counter-claim,Iran'sRequest
forearinalsoreservesthe rigbtto "lodge preliminaryobjectionsin respectofthe UnitedStates'
Collnter-Claim,",para26. The Rulesof Courtof coursedo not provide forpreliminaryobjectionsto
• couPter-claimwithouteveransweringit on the merits.rtftocontestthe U.S.unities
•1· 6
1O. Moreover, the Court could face great practicaltoifficulties in seeking
resolve Iran's objections to admissibility at this stage in the context of Article 80(3).
Many oflran's objetojurisdiction and admissibility involve contested matters of
fact which the Court cannot effectively address and decide at this stage, particularly not
3
in the context of the abbreviated procedur•s of Article 80(3)
•
•
•
•
•
•
reqyestafurtheroptoaddressthemin greaterdetailinwritingbeforethe Courtrenderedanyldhave
• decision.
• 7
•
•• CHAPTERII
THE CONNECTION REQUIRED BY ARTICLE 80
Il. As we have shawn, the only issue now before the Court under Article 80(3) is
~heth eere is "doubt" regarding the requisite "connection between the question
presented by way of counter-claim and the subject matter of the claim of the other party."
•
12. lran's Request for Hearing regularly mis-characterizes the key legal
requirements of Article 80. Iran paraphrases the Rule to require "a direct connection
• between the counter-claim and the origin."This is not what Article 80 says. It
requires a direct connection to the subject matter of the claim, not to the claim itself. The
difference is important. A proper counter-claibena mirror image of the daim
•
or rest upon precisely the same theory or facts. Rather, the coubeer-claim must
sufficiently linked to the facts or circumstances giving rise to the daim-- the "subject
1.
matter" toenable the Coutoaddress both e:fficiently in the context of a single
proceeding.
13. Article 80(3) thus reflects practical considerations offaimess and economy
•
for the Parties and the Court. By requiring that claim and counter-claim share common
connection to the subject matter, the Rule ensures that Parties and Court do not have to
• grapple with unconnected disputes and unrelateina single case. However, where
1,
4fran'sRequestforHearingat p.6, pidat p. S,para9(iIran'spositiontino 'direct
• connection'betweentheUnitedStates'Counter-ClaimandtheprincipalcIran .... ")edby J
1
• 8
--as here -- there are substantial co.nunonelements, those conunon issues can be fairly
• and efficiently addressed and decided at one time, within a single proceeding. This
involves no unfaimess to Iran, nor inappropriate burden on the Court. On the contrary,
it helps to reduce the burden on the Court that would be caused by separation of closely
. li
1• refated cases, guards against inconsistent results, and helps the Court to reach a just and
"
rational result by addressing ali sides of the dispute in a single proceeding.
14. The few previous decisions by this Court and the Pennanent Court involving
•
counter-claims reflect this practical understanding of the necessary connection between
claim and counter-claim. The modem Courtstaddressed these issuinthe Asylum
• Case5•There, both claim and counter-claim grew out of conunon circumstanc-es,a claim
fo ~sylum and safe-conduct for Mr. Haya de la Torre, who soughtinthe Embassy
of ColombiainLima following a military rebellion. Colombia initiated the case. Peru
•
brought a counter-cla4D. Colombia asked thecounter-claim be rejected for lack of
direct connection to the claim, contending that it "raises new problems and thus tends to
6
• s~1:thtgrounds of the disput."The Court disagreed, finding a direct connection
be,~e clnim and counter-claimlndoing so, the Court stressed that "conditions which
1,
a.r?equired to exist before a safe-conduct can be demanded depend precisely on facts
•
which are raised by the counter-c."The same is true here. As we will show, the
•
s' :
Asylum, JudgmeI.C.Reports 1950, p. 266.
6
'd.at p. 280.
• 7Id ap. 280-81 .
•• 9
validity oflran's challenge to the legality ofU.S. conduct "depend[s] precisely on facts
which are raised by the counter-claim."
•
15. In US. Nationa/s in Morocco, the Court did not even find it necessary to
address the question of connection, and instead turned directly to consider the U.S.
counter-claim8.The Court's Order at the preliminary measures stage of the Case
Concerning United States Diplomatie and Consular Staff in Tehran, which is cited by
ITa.n,is fully consistent with our analysis. The Court there simply noted that Iran could
• '
file a counter-claim ifit considered alleged U.S. activities in Iran "legally to have a close
connection with the subjectatter" of the U.S. claim ."
•
16. The Permanent Court (which of course acted under different rules) did not
require a high degreef correlation between claim and counter-claim. In Diversion of
Waterfrom the Meuse 1, The Netherlands argued that Belgium's construction of certain
•
works involving the River Meuse violated an 1863 treaty. Belgiuni brought a counter-
claim involving two different water projects constructed an earlier time. Despite these
• differences, the Court concluded that Belgium's counter-claim was "directly connected
with the principal daim.,.
:Il
17. Iran also refers to the Chorzow Factory case, which presented the Permanent
•
Court with similar issues, but it too supports our view of the appropriate connection.
8RightsofNationals of the UnitedStatesofAmericain Morocco,JudI.C.JReports1952,p. 176at
• p.203.
94nited States DiplomaandConsularStaff in Tehran,Provisiona/Measures,Ord15December
1979,l.C.JReport1979,p~7 atp.15,para24.
10
• ·Diversionof Waterfrom the Meuse,Judgme1937P.C.I.JSeriesAJB,No.70, p. atp.28.
11Pactoryat Chorz6w, Merits, JudgmentNo. 13, 1928, P.C.IJSeriesA, No. 17.
•• 10 ,
1
Gennany claimed that Poland wasliable for reparations stemming from Poland's
• confiscation of a nitrate factory in Chorz6w. Poland ritactions inter alia, that
were lawful because Article 256 of the Versailles Treaty vested Poland with ownership of
the factory. Poland also counter-claimed, alleging that Gennany must surrender its shares
• of the company controllingtoPoland. Thus, similar matters fonned the basis
ofPoland's defense to Germany's claim.and of Poland's counter-claim. The Permanent
• Court concluded that in these circumstances, it could addre.s Poland's counter-claim
This case is simisshown below, the factual circumstances at the base of the U.S.
defense are also the basis of the U.S. counter-claim .
•
•
•
•
•
• 11Idatpp. 38-39.
•• 11
•
PARTH
THE U.S. COUNTER-CLAIM IS "DIRECTLY CONNECTED TO THE
SUBJECT MATTER" OF IRAN'S CLAIM
•
18. In paragraphs 17-19 of its Request for a Hearing, Iran repeatedly denies that
there is any legal or factual connection between the U.S. counter-claim and the subject
•
matter of Iran's Application. Iran thus asks the Court to adopta very narrow and
artificial view of the subject-matter ofits claim and the U.S. counter-claim. Iran wants
• th ~ourtoconsider only the U.S. defensive actions against Irto's platforms, and
.
exclude Iran's prior conduct leading to those actions. The Court should not accept this
• artificial and illogical definition of the subject-matter of ine claim. To do so would
effect accept Iran's position on the merits of the case before the case is even beard. The
Parties' dispute cannot be separated from itinthis way.ontext
• 19. As showithe U.S. Counter-Memorial and Counter-Claim of 23 June 1997,
the facts and circwnstances that caused the United States to engage Iran's oil platforms --
Iranian attacks on, and threatsant shipping, including U.S. shipping and U.S.
•
nationalareathe heart of the U.S. defense to Iran's claims. These same facts and
circumstances are likewise the basis of the U.S. counter-claim. The factual connection
• between the subject matter oflran's case and the U.S. counter-claim is direct and
compelling .
•
• 12
1. The circumstances which caused the United States to take defensive action
against Iran's oit platforms are an essential part of the "subject matter" of
• Irao's daim
20. The United States took action in self-defense against Iran's oil platforms in
October 1987 and againnApril 1988. As detailed in the U.S. Counter-Memorial and as
i.
1 summarized brietly below,S. actions in self-defense were juineach instance by
a patternflranian actions against neutra! shipping, including attacks on U.S. vessels,
1
• that threatened the safetyS. merchant vessels and their U.S. warship escorts. The
Court must consider ali these eindetennining whether the U.S. actions were
justified undintera/iathe law of self-defense and the 1955 Treaty's provision
•
permitting actions necessary to protect the essential security interestshe
meritsoflran's claims cannbedetermined without resolving these matters. They are a
• central partf the "subject-matter" oflran's claims. As the next section will show, these
same actions by Iran are also a central aspectU.S. counter-claim .
•
a. Events Leading Up to the-Odober 1987 U.S. Defensive Action Against the
Rostam Platform.
• 21. The United States maintainbothitsdefense anitscounter-claim that
Iranian armed forces engagedarmed threats and attacks against neutra! Gulf shipping
priortothe U.S. October 1987 defensive measures against the Rostam Platform. Iran's
•
actions included threats and attacks on U.S. nationals, U.S.-tlag vessels and vessels
engaged inU.S. trade. These factual contentions are a central part of the subject matter at
• issue between the Parties.
• 13
•
22. Despitediplomatieeffortsbythe Unittoavertconfrontationwith
13
Iran,Iranianthreatsta U.S.shippingincreasedinJuly 1987followingthedecisionta
•
·flagelevenKuwaitivesselsunderU.S.registry. IranianforcesminedKuwaitiwaters
transitedU.S.~f lnkgrs,and successfullyminU.S.~f tlnkgrBridgeton
14
• 24July 1987•Thecommentsof Iranianofficiaismadeclearthat Iranianforceswere
targetingforattackU.SAiag merchantvesselsandtheirU.S. Nav•In August
1987,Iranianforcesminedthe KhorFakkananchoragewhichwasusedregularlyby
•
U.S.~f aldatherneutra!vessels. ThetTexaco CaribbeaengagedinU.S.~Iran
1
trade,struckone suchmi•Furtherevidenceoflran's threatto merchantshipping,
• including.S.shipping,surfacedin September1987,whenU.S.forcescaughttheIranian
vesselran Ajlayingminesinan internationalsealaneusedby U.S.merchant
17
convoys .
•
23. Thepatternof Iranianthreatandanned attackcontinuedwhenIranianforces
launcheda missilewhichstruckthe~f tanagSea Isle Cat a Kuwaitianchorage
• on-16October1987• FollowingIranian.attacksagainstshippingthat spannedfrom
Kuwaitta Fujayra,the attackSea Isle Ccausedthe.UnitedStatesta conclude
•
13U.SCounter~M admCorunatler~p.1ia~i2aa,. 1.22- 1.24.
14Id.at pp.~2p4aas1.25~1.31.
15
• Id at p23~ 2aa,1.30~1.31.
16
Id. at 25~ 2aas. 1.~1.38.
17Id.at pp. 28 30, paras. 1.40• 1.42.
• _ Id at pp. 42-52, paras. 1.63- 1.69.
• 1
'
• 14
that lran's threat to the safety ofU.S. shipping and U.S. nationals was continuing and
serioui•The United States determined that defensive action was necessary to counter
•
this threat, and for the reasons stated in ther-Memoriae', took such defensive
action against the Rostam oil platfonns used(1)observe and identify merchant
• shipping for attack, (2) launch helicopter attacks against merchant vessels, and (3)
transmit communications between Iranian naval forces involved in ship attacks.
•
b. Events Leading Up to the U.S. Defensive Action Against the Sirri and
Sassan Platforms
• 24.Despite the U.S. defensive response against Rostam, Iranian armed forces
continued seriously to threaten and assault neutraling in the months that
followed. Among the vessels attacked were(15November 1987),Esso Freeport
•
(16 Novernber 1987), and Diane (1 February 1988), ail of which were U.S.-owned.
During the frthremonths of 1988 atone, lranian forces attacthan25re
• merchant vessels .
•
19Thepatternoflranian threatandanned attacki90assaultson neutra!merchant
vesselsuringthecourse1987.SeeU.S.Counter-Memorial,Ma1.4following10,and
Exhibit1, 2,and11 annexedthereto. ln additionto imperilingthe livesof sailorsand
affectingthecourseof merchanttrafficintheGulf,theseattackscausedthe insuranceandtabor
• costsofshipWnersto increasesubstantially. Id7, 16.bits
20U.S.Counter~ pp.53etse.ana7l1et seq.
11Id.at pp.54-70,paras. 1.98. 1.
•
22Id. at p.9 note7, andExhi2,9, and 11.
• 15
•
25. The pattern of Iranian threat and assault continued in April 1988. On 14
April 1988, the U.S. warship USS Samuel B. Roberts struck a mine laid by Iran in the
•
centraGuifl. Ten U.S. sailors were injured by the mine explosion. Many other mines
manufactured in Iran were subsequently discoveredhe vicinity of the Roberts mining,
• in international sea lanes used regularly byrchant convoys• The mining of USS
S~mue B. Roberts again demonstrated the gravity and immediacy of the Iranian threat to
U.S. merchant vessels and their U.S. warship escorts. Faced with this threat, and with
•
reason to believe that the pattern ofiranian attacks would contmue, the United States
concluded tha~er proportionate defensive measures were necessary to diminish
25
• Iran's ability to endanger U.S. shipping and U.S. n.tThe United States took
such actions against thesan and Sirailplatfonns which, like the Rostam platforms,
26
were beingusedto coordinate and launch Iran's attacks against s•ipping
•
26. This course of events is at the heart of the Uto.Ira'sclaims. It is
a central part the "subject matter" of this case. As the next section shows, these facts
• are also at the heart of the U.S. counter-claim.
2 • The circumstances which caused the United States to take defensive action
• are also essential elements of the U.S. counter-claim
• 23 Id atpp. 77-8paras1.105 - 1.112, and Map 1.13 and Illustration 1.14 77.ceding p.
24
Idat p~78-79 and note 198, paras. 1.107 - 1.108.
25 .
Idat pp. 83-86, paras. 1.113- 1.121.
• 26
Idat pp. 83-89, paras. 1.113 - 1.125.
•• 16
27. Iran's claim and the U.S. counter-claim both place at issue Iran's overall
•
patternf armed attacks against U.S. and other neutral shipping in the Gulf. The U.S.
counter-claim contends that aspects of Iran's armed attacks againstintheral shipping
• Gulf region-- conduct that also is central to thtothe merits oflran's
claims -- also violated the 1955 Treaty. lran's pattern of attacks both damaged particular
vessels in violatione Treaty and created dangerous conditions that cleniedrights and
•
protections due other vessels under the Treaty.
28. TheUnited States describes in its counter-claim seven specifie Iranian attacks
•
that violated theTreaty. These seven attacks are also directltothenected
subject matterran's claims. As summarized above, lran's attacks on the U.S.-flag Sea
Isle City and the U.S. warship Samuel B. Roberts were the most immediate of the events
•
leading theited States to take the defensive actions for which Iran now claims. These
attacks are specifically included in theer-claim. The counter-claim also
• includes Iran's attacks on the U.S.-flag Bridgeton; the U.S.-owned Lucy, Esso Freeport,
and Diane; and the Texaco Caribbean (carrying Iranian oil to the United States). These
attacks were also part of the overall pattern oflranian actions that led the United States to
•
conclude that it faced a continuing threat necessitating actionin order to
restore safety for its ships and personnel.
• 29. The pattern oflranian attacks placed at issuelahaslegal
consequences under the 1955 Treaty going beyond the seven specifie attacks mentioned
above. As explained in greater detail in the June 1997 U.S. Counter·Memorial and
•
•• 17
Counter-Claim, the U.S. counter-claim also includes the consequences of Iran's conduct
for the overall exercise ofnavigational rights protected by the 1955 Treaty. Iran's pattern
•
of armed attacks against neutral shipping created threatening conditions which interfered
W.ththe ability of ali U.S.-flag and U.S.-owned ships and U.S. nationals to exercise their
• rights under the TSubstantial damages resulted, including increases in the costs of
operating both U.S.-flag and U.S.-owned commercial vessels and the warships protecting
• them. Insurance and labor costs increased; steaming times increased; vessels were forced
to carry smaller cargoes in order to pass through the relative safety of shallower waters.
30. To sum up, in evaluating both the U.S. defense to Iran's claim and the merits
• of the U.S. counter-claim, the Court must consider Iran's responsibility both for specifie
attacksn U.S.-flag and U.S.-owned vessels and for the overall pattern oflran's threats
• and attacks against neutral shipping. The direct connection between the subject matter of
Iran's claim and the U.S. counter-claim is clear and compelling .
• 3. The U.S. ClaisSpecifie and Admissible
31: Iran's Request for Hearing contains many arguments regarding the fonn and
• substancef the U.S. counter-claim, all aimed at showing the counter-claim to be
inadmissible. we have shown, these arguments are not properly before the Court
• under Article 80(3). The only issue now before the Court is whether there is doubt about
the required direct connection betweenounter-claiNevertheless, for
completeness, we will briefly comment on sorne of Iran's arguments .
•
• 1
l
• 18
32. First, Iran contends that the U.S. counter-claim is not admissible because it
27
is not framed clearly or with sufficient precisi•nIran particularly objects ta the U.S.
•
wish to reserve the righta show additional Iranian attacks on U.S. vessels.This
objection must fail. It is clear that the U.S. counter-chasmbeen stated with sufficient
• precision to be understoodby Iran, leading to Iran's spirited objections here. As to the
U.S. reservation of the right to prove other Iranian ship attacks, Iran itselfhas frequently
sought to reserve the right to prove additional matters supporting its claims. Iran's
•
Application thus reserved the right ta add additional submissions, and Iran's Memorial
29
reserved the right to offeroof of injuries allegedly suffered by Ira•
• 33. Iran also argues that the U.S. counter-claim is inadmissible because it affects
30
the rightsofthird parties •This argument too is implausible. The other States
potentially interesteinthe U.S. counter-claim have indicated their consent or Jack of
•
objection to the counter-claim1• Iran can hardly objectif the other States that may be
interested do not.
•
34. Iran also suggests that the United States should not assert a counter-claim,
and should instead filen Application initiating a new and additional case, so that Iran
could lodge still more claims against the United States as counter-claims The Court
•
27If8D'sRequestforHearing,p7,para16.
2/d.atp.8,para16(b).
'
• 29Iran'ApplicationInstitutingProceedings,pIran'Memorial,p. 135(reservinright offer
quantificationofdamages).
30Iran'RequestforHearing,p.18, par33.
JtU.S.Counter-Memorialand Counter-Ciaip.,177n. 397.
•
32Id at p. 17,para30.
• 11
• 19
should not give any weight to this contention. The United States did not initiate these
proceedings. Iran initiated them, asserting claims that it alone selected. Having done so,
•
Iran cannat now avoid the legal consequences, including its rtorespondtoity
the U.S. counter-claim.
• 35. Finally, Iran denies that thasjurisdiction over counter-claims based
on the 1955 Treaty, or that the United States haslegal standing under the Treaty to assert
1
claimsWithrespect to U.S. owned, non-U.S. flag vessels. As with many oflran's
•
arguments, these objections are not appropriate for consideration at this stage under
Article80(3). Nevertheless, we will comment briefly on sorne oflran's arguments
•
concerning the 1955 Treaty.
36. First, lran's jurisdictional argutoforce ali of the U.S. counter-
claim into the confines of Article X(l) of the 1955 Treaty. Iran then deems the counter-
•
daim jurisdictionally deficient because it does ntoIran's construction of that
Atticle. This is not a matter that can be dealt with at this stage. Various aspects of the
• character and effect of Article X(l) have not been decided by the Court and remain l.mder
33
di$pute .Issues involving the relationship between that Article and the U.S. counter-
• claim await the Court's eventual decision regarding the interpretation and application of
that Article.
37. SimilarlIrawrongly contends that the specifie navigational paragraphs of
• Article X (paragraphs etseq.apply only to "conunerce [and] navigation between
1• 31See,e.g., U.S. Counter-MemorialandCounter-Claimat pp. 171-172,paras6.14 - 6.16.
• 20
•
34
thetertoriesof the HighContractingPart".sThetextcontainno suchlimit,andno
suchlimit plausiblycan be readintothe Treaty.
•
38. Iranalsoasks the Courtto ignoretheadverseeffectsof itspatternof attacks
on neutralshippingon the exerciseofU.S. rightsonderArticleX of the Treaty. As we
• haveshown,Iranianactionssuchasthe layingof minefieldsin international shipping
channelsand indiscriminateattackson shipsby smallboatsandaircraftendangeredand
burdenedall neutralshipping. In so doing,they createdconditionsthat impairedthe
•
exerciseofU.S. rightsonderthe 1955Treaty.
39. Finally,Iran'sspecifieobjectionstothe applicationofparagraphs X(2)
• throughX(5)ofthe Treatyarewithoutmerit. Forexample,as notedabove,these
provisionsrenot limitedto shipsinvolvedintradebetweentheUnitedStatesand Iran.
• IranclearlydenieBridgetoand Sea Isle Cithe statusandprotectionto whichthey
35
weredueunderArticle X(2)of the Treat•Similarly, Iran'sconductclearlyinterfered
withthe rightsofU.S.-flag vesselsto receiveaccessandprotectiononder ArticleX(3)-
•
(5) of the Treaty. Moreover,the exclusionofwarships in ArticleX(6)is notapplicableto
ArticleX(5). Attacksona U.S.warshipprotectingU.S.commercialvessels,underthe
crrcwnstancesprevailingin the Gulf,mustbe viewedas endangeringanddenyingaccess
•
to thosecommercialvesselsas weiL Overall,Iran's attemptsto evadeits obligations
onder ArticleX throughtechnicaldistinctionsandnarrowinterpretationscannotsucceed,
•
34
Iran's Requestfor Hearing,p. 13,para21.
3Indeed,Irandeniesthat BridgetonandSea IsleCity wereU.S.-flagvessels. lran's Requestfor Hearing
1• atp9,para19andp. fit14.
• i
• 21
particulaitactions put at risk every neutral vessel in the Gulf, including every
U.S. commercial vessel.
•
•
•
•
•
•
•
•
•
•• 22
•
PART III
NO HEARING IS REQUIRED
•
40.lran's 18Novemberfilingis captionedin part "RequestforHearing."
However,inthe presentcircumstances,no hearingis required. Thecontrtextnglegal
• 36
isArticle80(3)of the RulesofCo,whichstates:
ln the eventof doubtas tothe connectionbetweenthe questionpresented byway
of counter-claimandthe subject-matterof the claimof the otherpartythe Court
• shaH,afterhearingtheparties,decidewhetheror not the questionthuspresented
shallbejoined to the originalproceedings.
41. Irancontendsthat the words"after hearingthe parties"requirethat the Court
•
conductoralproceedings. However,thesewordscomeinto operationonlyif the Court
detenninesthatthereis "doubt"asto therequisite"connectionbetween the question
presentedywayof counter-claimandthe subjectmatter." As wehaveshawn,there is
no reasonablebasisforsuchdoubt. ln the absenceof doubt, the questionof a hearing
simplydoesnot arise.
•
42. Theprinciples ofjustice and of soundjudicial administrationrequireno
differentresult. Thequestionof connectionbetweenclaimandcounter-claimhere is
simpleand straightforward.Therelevantconsideratioysexplainedin thepapers
•
36Iran takes inconsistentpositionsregartbe applied in construingthe RulesofCourt.
Itbeginsbyarguing for"a cautiousapproach"inapplyingthe Ruleon counter-claims.Requestfor
• Hearing,p.4, para 8. 1tends, bowever,byarguingfora sweepinginterpretationthe Rulerangingfar
h7yonditclear text. Id at p.l4, para. 24.
• 1
• 23
submitted by the There is simply no need for additional oral proceedings on the
• narrow issues before the Court.
•
•
•
•
•
•
•
•
• • 24
1
•
PART IV
CONCLUDING OBSERVATIONS
43. The thrust oflran's position is not whether the U.S. counter-claim is
•
connected to the subject matter oflran's claim, but whether there is a valid U.S. counter-
claim at ali. The Court cannot make such a determination at this stage of the proceedings.
It certainly should not allow Iran to avoid responding to the merits of the U.S. counter-
•
claim.
44. Accordingly, theurt should now decide to join the questions presented by
the U.S. counter-claim to the original proceeding. As we have shown here, no oral
proceeding is required in connection with such a decision. There is no reasonable basis
for doubt asto the connection between the subject matter oflran's claim and of the U.S.
•
counter-claim. Both claim and counter-claim arise out circumstances and
require the Court to examine and decide many of the saine factual and legal issues. There
• is accordingly no need for an oral proceeding under Article 80(3).
1
45. Iran's many attacks upon the jurisdiction and admissibility of the U.S.
counter-claim are unjustified. But in any case, the only issue proper for consideration by
•
theCourt now is whether there is sufficient coimection between claim and counter-claim.
As we have shown, there is sufficient connection. Ali remaining questions presented in
• theU.S. counter-claim should now be joined to the original proceedings.
!e,----------- --------·
,
J
• 25
46As to the schedule of future proceedings on the merits of this case, the
United States would not object should Iran ask under Article 45(2) of the Rules of Court
• for permission to submit to the U.S. Counter-Memorial to accompany its defense
to theS. counter-clairn, if the Unalsoauthorized to file a Rejoinder. The
•
United States notes, however, that Iran received the U.S. Counter-Memorial and
Counter-Clairn late 1997, nearly six months ago. Iran thus already bas bad as
• long to study the U.S. document as the United States bad to write it. Therefore Iran
sheuld be required to submit any Reply within six months. The United States should then
be .given as much time to prepare its Rejoinder as Iran will have bad from June 1997 to
• the filing of its Reply.
•
18 December 1997.
•
David R. Andrews
• Agentf the United States of America
•
1
•
•
Views on Iran's ''Request for Hearing in Relation to the United States' Counter-claim pursuant to Article 80 (3) of the Rules of Court'' submitted by the United States of America