INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN ». UNITED STATES
OF AMERICA)

JUDGMENT OF 6 NOVEMBER 2003

2003

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES PLATES-FORMES PETROLIERES

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D’AMERIQUE)

ARRET DU 6 NOVEMBRE 2003
Official citation:

Oil Platforms (Islamic Republic of Iran
v. United States of America), Judgment,
I C.J. Reports 2003, p. 161

Mode officiel de citation:

Plates-formes pétrolières (République islamique d'Iran

c. Etats-Unis d'Amérique), arrêt,
C.I.J. Recueil 2003, p. 161

Sales number
ISSN 0074-4441 N° de vente:
ISBN 92-1-070984-5

$76

6 NOVEMBER 2003

JUDGMENT

OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

PLATES-FORMES PETROLIERES

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D’AMERIQUE)

6 NOVEMBRE 2003
ARRET
2003
6 November
General List
No. 90

161

INTERNATIONAL COURT OF JUSTICE
YEAR 2003

6 November 2003

CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

1955 Treaty of Amity, Economic Relations and Consular Rights between the
United States and Iran Iranian claims and United States counter-claim for
breach of Article X, paragraph 1 — Jurisdiction based on Article XXT, para-
graph 2 — Factual background.

* *

United States contention that the Court should reject Iran’s claims and refuse
it the relief it seeks because of Iran’s allegedly unlawful conduct — “Clean
hands” — Argument not presented as objection to admissibility — Not neces-
sary to decide the issue.

#

Iranian claims based on Article X, paragraph 1, of Treaty — Alleged
infringement of freedom of commerce between the territories of the Parties by
attack on Iranian oil platforms — Judgment of 12 December 1996 on jurisdic-
tion — Relevance of other Articles for interpretation or application of Article X,
paragraph 1 — Task of the Court to ascertain whether there has been a
breach of Article X, paragraph 1 — United States contention that Article XX,
paragraph I (d), concerning measures necessary to protect the essential security
interests of a party, is determinative of the question — Order in which the Court
should examine Articles X, paragraph 1, and XX, paragraph I (d) — Freedom
of Court to choose grounds for its decision — Particular considerations in this
case militating in favour of an examination of Article XX, paragraph I (qd),
prior to Article X, paragraph 1 — Relationship between Article XX, para-
graph I (d), and international law on the use of force — Jurisdiction of the
Court to interpret and apply Article XX, paragraph I (d), extending, where
appropriate, to the determination whether action was or not unlawful use of

force, by reference to international law — Provisions of the United Nations

4
162 OIL PLATFORMS (JUDGMENT)

Charter and customary international law — Jurisdiction of the Court limited
to that conferred by the consent of the Parties.

*

Article XX, paragraph 1 (d) — Measures “necessary” to protect the party's
essential security interests — Criterion of “necessity” to be assessed by the
Court — Overlapping of question whether the measures taken were “necessary”
and of their validity as acts of self-defence — Actions on the platforms amounted
to a use of force.

Attack of 19 October 1987 on Reshadat — United States contention that this
action was necessary to protect its essential security interests and a valid act of
self-defence — Question of the existence of an “armed attack” on the United
States — Missile attack on the Sea Isle City — Burden of proof of the existence
of an attack by Iran on the United States not discharged — Alleged series of
attacks by Iran not an “armed attack” on the United States — Attacks of
18 April 1988 on Nasr and Salman and “Operation Praying Mantis” — Mining
of the USS Samuel B. Roberts —Evidence inconclusive that the vessel was the
victim of a mine laid by Iran — Mine incident not an “armed attack” by Iran
against the United States.

Examination of criteria of necessity and proportionality in the context of self-
defence — Nature of the target of the force used in self-defence: insufficient
evidence as to the significance of the military presence and activity on the plat-
forms — Attacks on the platforms not meeting the criteria of necessity and pro-
portionality under the right of self-defence.

Attacks on the platforms not justified, under Article XX, paragraph I (d), as
measures necessary to protect the essential security interests of the United
States, being acts of armed force not qualifying under international law as acts
of self-defence.

#

Article X, paragraph 1 — Scope of the 1996 Judgment — Question whether
the United States actions affected “freedom of commerce” under Article X,
paragraph 1 — Meaning of “commerce” in that text — Not limited to maritime
commerce nor to activities of purchase and sale — No justification for treating
platforms as military installations, and thus outside protection of Article X,
paragraph 1.

Nature of commercial activities protected — United States attacks entailing
destruction of goods destined to be exported and affecting transport of these
goods with a view to export — Attacks impeded Iran’s freedom of commerce —
Treaty limitation to freedom of commerce “between the territories of the two
High Contracting Parties” — Exports of Iranian oil to United States territory
until 29 October 1987 — Reshadat and Resalat platforms under repair at the

5
163 OIL PLATFORMS (JUDGMENT)

time they were attacked — United States Executive Order 12613 of 29 October
1987 imposing an embargo on goods of Iranian origin — No exports of Iranian
crude oil to the United States after 29 October 1987 — Legality of the embargo
not before the Court — Salman and Nasr platforms attacked after enactment of
embargo — Import into United States of petroleum products derived from
Iranian crude oil not constituting “commerce between the territories” of the
Parties for the purposes of the 1955 Treaty — Attacks on the platforms not a
breach of Article X, paragraph 1.

+ Ox

United States counter-claim — Scope of the Order of 10 March 1998 — Ira-
nian objections to jurisdiction and to admissibility of the counter-claim other
than those decided under Article 80, paragraph 3, of the Rules of Court.

First objection of Iran — Contention that the counter-claim was presented
without prior negotiation — Dispute “not satisfactorily adjusted by diplomacy”
for the purposes of Article XXI, paragraph 2 — Second objection of Iran —
Contention that the counter-claim was made on behalf of third States or foreign
entities — Counter-claim limited to alleged breaches of freedoms guaranteed to
the United States — Third objection of Iran — Contention that the counter-
claim is beyond Article X, paragraph I — United States limiting the scope of its
counter-claim — Fourth objection of Iran — Contention that jurisdiction of the
Court does not extend to freedom of navigation — Jurisdiction to deal with free-
dom of commerce and navigation under Article X, paragraph 1 — Fifth objec-
tion by Iran — Admissibility — Alleged broadening of counter-claim by the
United States — No transformation of the subject of the dispute originally sub-
mitted to the Court.

*

Examination of specific incidents invoked by the United States — None of the
vessels involved engaged in commerce or navigation between the territories of
the Parties — No breach of Article X, paragraph 1 — United States generic
counter-claim — No proof that actions of Iran infringed the freedom of com-
merce or of navigation between the territories of the Parties — No specific inci-
dent constituted a breach of Treaty — Generic counter-claim cannot be upheld.

JUDGMENT

Present; President Sui; Vice-President RANJEVA; Judges GUILLAUME, KOROMA,
VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK,
164 OIL PLATFORMS (JUDGMENT)

AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA, SIMMA, TOMKA;
Judge ad hoc RiGAux; Registrar COUVREUR.

In the case concerning oil platforms,
between

the Islamic Republic of Iran,
represented by

Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the
Iran-United States Claims Tribunal, Deputy Director for Legal Affairs,
Bureau of International Legal Services of the Islamic Republic of Iran,
The Hague,

as Agent;

Mr. D. Momtaz, Professor of International Law, Tehran University,
member of the International Law Commission, Associate Member of the
Institute of International Law,

Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Com-
pany,

Mr. Michael Bothe, Professor of Public Law, Johann Wolfgang Goethe Uni-
versity of Frankfurt-am-Main, Head of Research Unit, Peace Research
Institute, Frankfurt,

Mr. James R. Crawford, S.C., F.B.A., Whewell Professor of International
Law, University of Cambridge, member of the English and Australian
Bars, Member of the Institute of International Law,

Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member
and former Chairman of the International Law Commission,

Mr. Rodman R. Bundy, avocat a la cour d’appel de Paris, member of the
New York Bar, Frere Cholmeley/Eversheds, Paris,

Mr. David S. Sellers, avocat à la cour d’appel de Paris, Solicitor of the
Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris,

as Counsel and Advocates;

Mr. M. Mashkour, Deputy Director for Legal Affairs, Bureau of Interna-
tional Legal Services of the Islamic Republic of Iran,
Mr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company,

Mr. R. Badri Ahari, Legal Adviser, Bureau of International Legal Services
of the Islamic Republic of Iran, Tehran,

Mr. A. Beizaei, Legal Adviser, Bureau of International Legal Services of the
Islamic Republic of Iran, Paris,

Ms Nanette Pilkington, avocat a la cour d’appel de Paris, Frere Cholmeley/
Eversheds, Paris,

Mr. William Thomas, Solicitor of the Supreme Court of England and Wales,
Frere Cholmeley/Eversheds, Paris,

Mr. Leopold von Carlowitz, Research Fellow, Peace Research Institute,
Frankfurt,
165 OIL PLATFORMS (JUDGMENT)

Mr. Mathias Forteau, docteur en droit, Researcher at the Centre de droit
international de Nanterre (CEDIN), University of Paris X-Nanterre,

as Counsel;

Mr. Robert C. Rizzutti, Vice-President, Cartographic Operations, Interna-
tional Mapping Associates,

as Technical Adviser,
and

the United States of America,
represented by

The Honourable William H. Taft, IV, Legal Adviser, United States Depart-
ment of State,

as Agent;

Mr. Ronald J. Bettauer, Deputy Legal Adviser, United States Department of
State,

as Co-Agent;

Mr. Michael J. Matheson, Professor, George Washington University School
of Law,

Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs,
United States Department of State,

Mr. Michael J. Mattler, Attorney-Adviser, United States Department of
State,

Mr. Sean Murphy, Professor, George Washington University School of Law,

Mr. Ronald D. Neubauer, Associate Deputy General Counsel, United States
Department of Defense,

Mr. Prosper Weil, Professor Emeritus, University of Paris Il, Member of the
Institute of International Law, member of the Académie des sciences
morales et politiques (Institut de France),

as Counsel and Advocates;

Mr. Paul Beaver, Defence & Maritime Affairs Consultant, Ashbourne
Beaver Associates, Ltd., London,
Mr. John Moore, Senior Associate, C & O Resources, Washington, D.C.,

as Advocates;

Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The
Hague,

Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The
Hague,

Ms Kathleen Milton, Attorney-Adviser, United States Department of State,

as Counsel;

Ms Marianne Hata, United States Department of State,
Ms Cécile Jouglet, United States Embassy, Paris,

Ms Joanne Nelligan, United States Department of State,
Ms Aileen Robinson, United States Department of State,
Ms Laura Romains, United States Embassy, The Hague,

as Administrative Staff,
166 OIL PLATFORMS (JUDGMENT)

THE Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 2 November 1992, the Government of the Islamic Republic of Iran
(hereinafter called “Iran”) filed in the Registry of the Court an Application
instituting proceedings against the Government of the United States of America
(hereinafter called “the United States”) in respect of a dispute

“aris[ing] out of the attack [on] and destruction of three offshore oil pro-
duction complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several warships of the United States
Navy on 19 October 1987 and 18 April 1988, respectively”.

In its Application, Iran contended that these acts constituted a “fundamental
breach” of various provisions of the Treaty of Amity, Economic Relations and
Consular Rights between the United States and Iran, which was signed in
Tehran on 15 August 1955 and entered into force on 16 June 1957 (hereinafter
called “the 1955 Treaty”), as well as of international law. The Application
invoked, as a basis for the Court’s jurisdiction, Article XXI, paragraph 2, of
the 1955 Treaty.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the United States by the
Registrar; and, pursuant to paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.

3. By an Order of 4 December 1992 the President of the Court fixed 31 May
1993 as the time-limit for the filing of the Memorial of Iran and 30 November
1993 as the time-limit for the filing of the Counter-Memorial of the United
States.

4. By an Order of 3 June 1993 the President of the Court, at the request of
Iran, extended to 8 June 1993 the time-limit for the filing of the Memorial; the
time-limit for the filing of the Counter-Memorial was extended, by the same
Order, to 16 December 1993.

Iran duly filed its Memorial within the time-limit as thus extended.

5. Within the extended time-limit thus fixed for the filing of the Counter-
Memorial, the United States raised a preliminary objection to the jurisdiction
of the Court pursuant to Article 79, paragraph 1, of the Rules of Court of
14 April 1978. Consequently, by an Order dated 18 January 1994, the President
of the Court, noting that by virtue of Article 79, paragraph 3, of the Rules of
Court the proceedings on the merits were suspended, fixed 1 July 1994 as the
time-limit within which Iran might present a written statement of its observa-
tions and submissions on the preliminary objection raised by the United States.

Iran filed such a statement within the time-limit so fixed and the case became
ready for hearing in respect of the preliminary objection.

6. Since the Court included upon the Bench no judge of Iranian nationality,
Iran availed itself of its right under Article 31, paragraph 2, of the Statute of
the Court to choose a judge ad hoc to sit in the case: it chose Mr. François
Rigaux.

9
167 OIL PLATFORMS (JUDGMENT)

7. Between 16 and 24 September 1996, the Court held public hearings on the
preliminary objection raised by the United States.

8. By a Judgment dated 12 December 1996 the Court rejected the prelimi-
nary objection of the United States according to which the 1955 Treaty did not
provide any basis for the jurisdiction of the Court and found that it had juris-
diction, on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to enter-
tain the claims made by Iran under Article X, paragraph 1, of that Treaty.

9. By an Order of 16 December 1996 the President of the Court fixed 23 June
1997 as the time-limit for the filing of the Counter-Memorial of the United
States.

Within the time-limit thus fixed, the United States filed its Counter-
Memorial; this included a counter-claim concerning “Iran’s actions in the Gulf
during 1987-88 which, among other things, involved mining and other attacks
on US-flag or US-owned vessels”.

10. In a letter of 2 October 1997 Iran expressed its opinion that “the counter-
claim as formulated by the United States [did] not meet the requirements of
Article 80 (1) of the Rules” and its wish “to submit a brief statement explaining
its objections to the counter-claim”.

At a meeting held on 17 October 1997 with the Agents of the Parties by
the Vice-President of the Court, acting as President in the case by virtue of
Article 13, paragraph 1, and Article 32, paragraph 1, of the Rules of Court,
the two Agents agreed that their respective Governments would submit written
observations on the question of the admissibility of the United States counter-
claim.

By a communication from its Agent dated 18 November 1997, Iran trans-
mitted to the Court a document entitled “Request for hearing in relation to the
United States counter-claim pursuant to Article 80 (3) of the Rules of Court”;
by a letter dated 18 November 1997 the Registrar sent a copy of that document
to the United States Government. By a communication from its Agent dated
18 December 1997, the United States submitted to the Court its observations
on the admissibility of the counter-claim set out in its Counter-Memorial,
taking the observations submitted by Iran into consideration; by a letter dated
18 December 1997, the Registrar communicated a copy of the observations of
the United States Government to the Iranian Government.

Having received detailed written observations from each of the Parties, the
Court considered that it was sufficiently well informed of their respective posi-
tions with regard to the admissibility of the counter-claim.

11. By an Order of 10 March 1998 the Court held that the counter-claim
presented by the United States in its Counter-Memorial was admissible as such
and formed part of the current proceedings. It also directed Iran to file a Reply
and the United States to file a Rejoinder, relating to the claims of both Parties,
and fixed the time-limits for the filing of the Reply and of the Rejoinder at
10 September 1998 and 23 November 1999 respectively. The Court held that it
was necessary moreover,

“in order to ensure strict equality between the Parties, to reserve the right
of Iran to present its views in writing a second time on the United States

10
168 OIL PLATFORMS (JUDGMENT)

counter-claim, in an additional pleading the filing of which [might] be the
subject of a subsequent Order”.

12. By Order of 26 May 1998, at the request of Iran, the Vice-President of
the Court, acting as President in the case, extended the time-limits for the filing
of the Reply of Iran and of the Rejoinder of the United States to, respectively,
10 December 1998 and 23 May 2000. By Order of 8 December 1998, at the
request of Iran, the Court subsequently extended the time-limits for the filing
of the Reply and of the Rejoinder to 10 March 1999 and 23 November 2000
respectively.

Iran duly filed its “Reply and Defence to Counter-Claim” within the time-
limit as thus extended.

By Order of 4 September 2000, at the request of the United States, the Presi-
dent of the Court extended the time-limit for the filing of the Rejoinder of the
United States to 23 March 2001.

The United States duly filed its Rejoinder within the time-limit as thus
extended.

13. By a letter dated 30 July 2001, the Agent of Iran, referring to the above-
mentioned Order of 10 March 1998, informed the Court that his Government
wished to present its views in writing a second time on the counter-claim of the
United States.

By an Order of 28 August 2001 the Vice-President of the Court, taking
account of the agreement of the Parties, authorized the submission by Iran of
an additional pleading relating solely to the counter-claim submitted by the
United States and fixed 24 September 2001 as the time-limit for the filing of
that pleading.

Iran duly filed the additional pleading within the time-limit as thus fixed and
the case became ready for hearing.

14. At a meeting with the President of the Court on 6 November 2002, the
Agent of Iran, subject to confirmation, and the Agent of the United States
agreed that the oral proceedings on the merits should begin on 17 or 18 Feb-
ruary 2003; the Agent of Iran subsequently confirmed the agreement of his
Government. At the same meeting the Agents of the Parties also presented their
views on the organization of the oral proceedings on the merits.

Pursuant to Articles 54 and 58 of the Rules, the Court fixed 17 Febru-
ary 2003 as the date for the opening of the hearings and adopted a timetable for
them. The Registrar informed the Parties accordingly by letters of 19 Novem-
ber 2002.

15. At the meeting of 6 November 2002, the Agents of the Parties informed
the President of the Court that they had decided not to present witnesses at the
oral proceedings. The Agent of the United States nevertheless expressed his
Government’s intention, under Article 56 of the Rules, to file a new document
containing an analysis and explanations by experts concerning certain evidence
already produced in the case. The Agent of Iran stated that his Government
reserved all its rights with regard to the production of that document. On
20 November 2002, the United States filed an expert’s report dated 18 Novem-
ber 2002, together with a copy of a diplomatic Note dated 20 November 2002
from the Royal Norwegian Embassy in Washington D.C. to the United States
Department of State. By a letter dated 20 January 2003, the Agent of Iran
informed the Court that his Government did not object to the production of
the above-mentioned documents by the United States and requested that, pur-

11
169 OIL PLATFORMS (JUDGMENT)

suant to Article 56, paragraph 3, of the Rules of Court, the comments of an
expert of Iran on the expert report of the United States “be made part of the
record in the case”. On 22 January 2003, the Court decided to authorize the
production of the above-mentioned documents by the United States and
the submission of the comments by Iran; by letters dated the same day, the
Registrar communicated this decision to the Parties.

16. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having con-
sulted the Parties, decided that copies of the pleadings and documents annexed
would be made accessible to the public on the opening of the oral proceedings
on the merits.

17. Public sittings were held between 17 February and 7 March 2003, at
which the Court heard the oral arguments and replies on the claim of Iran and
on the counter-claim of the United States by:

For Iran: Mr. M. H. Zahedin-Labbaf,
Mr. James R. Crawford,
Mr. D. Momtaz,
Mr. Rodman R. Bundy,
Mr. Alain Pellet,
Mr. S. M. Zeinoddin,
Mr. David S. Sellers,
Mr. Michael Bothe.

For the United States: The Honourable William H. Taft, IV,
Mr. Paul Beaver,
Mr. D. Stephen Mathias,
Mr. Ronald D. Neubauer,
Mr. John Moore,
Mr. Ronald J. Bettauer,
Mr. Michael J. Mattler,
Mr. Michael J. Matheson,
Mr. Prosper Weil,
Mr. Sean Murphy.

In the course of the hearings, questions were put by Members of the Court
and replies given in writing, pursuant to Article 61, paragraph 4, of the Rules
of Court. Each Party presented written observations on the written replies
received from the other, pursuant to Article 72 of the Rules.

*

18. In the Application, the following requests were made by Iran:

“On the basis of the foregoing, and while reserving the right to supple-
ment and amend these submissions as appropriate in the course of further
proceedings in the case, the Islamic Republic respectfully requests the
Court to adjudge and declare as follows:

(a) that the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by the Islamic
Republic;

(6) that in attacking and destroying the oil platforms referred to in the
Application on 19 October 1987 and 18 April 1988, the United
States breached its obligations to the Islamic Republic, inter alia,

12
170

OIL PLATFORMS (JUDGMENT)

under Articles I and X (1) of the Treaty of Amity and international
law;

(c) that in adopting a patently hostile and threatening attitude towards

the Islamic Republic that culminated in the attack and destruction of
the Iranian oil platforms, the United States breached the object and
purpose of the Treaty of Amity, including Articles I and X (1), and
international law;

(d) that the United States is under an obligation to make reparations to

the Islamic Republic for the violation of its international legal obli-
gations in an amount to be determined by the Court at a subsequent
stage of the proceedings. The Islamic Republic reserves the right to
introduce and present to the Court in due course a precise evaluation
of the reparations owed by the United States; and

(e) any other remedy the Court may deem appropriate.”

19. In the written proceedings, the following submissions were made by the
Parties:

On behalf of the Government of Iran,
in the Memorial:

“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:

E;
2.

4.

That the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by Iran;

That in attacking and destroying the oil platforms referred to in Iran’s
Application on 19 October 1987 and 18 April 1988, the United States
breached its obligations to Iran, inter alia, under Articles I, IV (1) and
X (1) of the Treaty of Amity and international law, and that the United
States bears responsibility for the attacks; and

That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by
the Court at a subsequent stage of the proceedings. Iran reserves the
right to introduce and present to the Court in due course a precise
evaluation of the reparation owed by the United States; and

Any other remedy the Court may deem appropriate” ;

in the “Reply and Defence to Counter-Claim”:

13

“With regard to Iran’s claims, and in the light of the facts and argu-

ments set out above, and subject to the reservations set out in Chapter 12
above, the Government of the Islamic Republic of Iran requests the Court
to adjudge and declare:

i

2.

That in attacking and destroying on 19 October 1987 and 18 April 1988
the oil platforms referred to in Iran’s Application, the United States
breached its obligations to Iran under Article X (1) of the Treaty of
Amity, and that the United States bears responsibility for the attacks;
and

That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by
al

OIL PLATFORMS (JUDGMENT)

the Court at a subsequent stage of the proceedings, the right being
reserved to introduce and present to the Court in due course a precise
evaluation of the reparation owed by the United States; and

3. Any other remedy the Court may deem appropriate.

With regard to the United States’ counter-claim, and in light of the facts
and arguments set out above, and subject to the reservations set out in
Chapter 12 above, and, in view of the present uncertain nature of the
United States’ counter-claim, further subject to the reservation of Iran’s
right to amend these submissions, Iran requests the Court to adjudge and
declare:

1. That the United States’ counter-claim does not fall within the scope of
Article X (1) of the Treaty of Amity as interpreted by the Court in these
proceedings, and accordingly that the counter-claim should be dis-
missed.

2. That the United States’ counter-claim is, in any event, inadmissible:

(a) generally, in that the United States has not satisfied the require-
ments of Article XXI of the Treaty of Amity with respect to the
satisfactory diplomatic adjustment of the claim;

(b) in any event, to the extent that it relates to vessels which were not
of United States nationality or whose United States flag was not
opposable to Iran at the time.

3. That Iran did not, in any event, breach its obligations to the United
States under Article X (1) of the Treaty of Amity as interpreted by the
Court in these proceedings.

4. That accordingly the United States’ counter-claim be dismissed” ;

in the additional pleading entitled “Further Response to the United States’
Counter-Claim” :

“Based on the facts and legal considerations set forth in Iran’s Reply
and Defence to Counter-Claim in the present pleading, and subject to the
reservations set out in Chapter 12 of its Reply and Defence to Counter-
Claim and in Chapter VIII above and, in view of the present uncertain
nature of the United States’ counter-claim, further subject to the reserva-
tion of Iran’s right to amend these submissions, Iran requests the Court,
rejecting all submissions to the contrary, to adjudge and declare:

That the United States’ counter-claim be dismissed.”

On behalf of the Government of the United States,
in the “Counter-Memorial and Counter-Claim” :

14

“On the basis of the facts and arguments set out above, the Government
of the United States of America requests that the Court adjudge and
declare:

1. That the United States did not breach its obligations to the Islamic
Republic of Iran under Article X (1) of the Treaty of Amity between
the United States and Iran, and,
172

OIL PLATFORMS (JUDGMENT)

2. That the claims of the Islamic Republic of Iran are accordingly dis-

missed.
With respect to its counter-claim, and in accordance with Article 80 of

the Rules of the Court, the United States requests that the Court adjudge
and declare:

1.

That in attacking vessels, laying mines in the Gulf and otherwise
engaging in military actions in 1987-1988 that were dangerous and
detrimental to maritime commerce, the Islamic Republic of Iran
breached its obligations to the United States under Article X of the
1955 Treaty, and

That the Islamic Republic of Iran is accordingly under an obligation to
make full reparation to the United States for violating the 1955 Treaty
in a form and amount to be determined by the Court at a subsequent
stage of the proceedings.

The United States reserves the right to introduce and present to the

Court in due course a precise evaluation of the reparation owed by Iran”;

in the Rejoinder:

“On the basis of the facts and arguments set out above, the Government

of the United States of America requests that the Court adjudge and
declare:

I.

That the United States did not breach its obligations to the Islamic
Republic of Iran under Article X, paragraph 1, of the 1955 Treaty of
Amity between the United States and Iran, and

That the claims of the Islamic Republic of Iran are accordingly dis-
missed.

With respect to its counter-claim, the United States requests that the

Court adjudge and declare:

1.

Rejecting all submissions to the contrary, that, in attacking vessels in
the Gulf with mines and missiles and otherwise engaging in military
actions that were dangerous and detrimental to maritime commerce,
the Islamic Republic of Iran breached its obligations to the United
States under Article X of the 1955 Treaty, and

That the Islamic Republic of Iran is accordingly under an obligation to
make full reparation to the United States for its breach of the 1955
Treaty in a form and amount to be determined by the Court at a sub-
sequent stage of the proceeding.

The United States reserves the right to introduce and present to the

Court in due course a precise evaluation of the reparation owed by Iran.”

20. At the oral proceedings, the following final submissions were presented
by the Parties:

On behalf of the Government of Iran,
at the hearing of 3 March 2003, on the claim of Iran:

“The Islamic Republic of Iran respectfully requests the Court, rejecting

all contrary claims and submissions, to adjudge and declare:

15
113 OIL PLATFORMS (JUDGMENT)

1. That in attacking and destroying on 19 October 1987 and 18 April 1988
the oil platforms referred to in Iran’s Application, the United States
breached its obligations to Iran under Article X, paragraph 1, of the
Treaty of Amity, and that the United States bears responsibility for the
attacks; and

2. That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by
the Court at a subsequent stage of the proceedings, the right being
reserved to Iran to introduce and present to the Court in due course a
precise evaluation of the reparation owed by the United States; and

3. Any other remedy the Court may deem appropriate”;

at the hearing of 7 March 2003, on the counter-claim of the United States:

“The Islamic Republic of Iran respectfully requests the Court, rejecting
all contrary claims and submissions, to adjudge and declare:

That the United States counter-claim be dismissed.”

On behalf of the Government of the United States,

at the hearing of 5 March 2003, on the claim of Iran and the counter-claim of
the United States:

“The United States respectfully requests that the Court adjudge and
declare:

(1) that the United States did not breach its obligations to the Islamic
Republic of Iran under Article X, paragraph 1, of the 1955 Treaty
between the United States and Iran; and

(2) that the claims of the Islamic Republic of Iran are accordingly dis-
missed.

With respect to its counter-claim, the United States requests that the
Court adjudge and declare:

(1) rejecting all submissions to the contrary, that, in attacking vessels in
the Gulf with mines and missiles and otherwise engaging in military
actions that were dangerous and detrimental to commerce and naviga-
tion between the territories of the United States and the Islamic
Republic of Iran, the Islamic Republic of Iran breached its obligations
to the United States under Article X, paragraph 1, of the 1955 Treaty;
and

(2) that the Islamic Republic of Iran is accordingly under an obligation to
make full reparation to the United States for its breach of the
1955 Treaty in a form and amount to be determined by the Court at a
subsequent stage of the proceedings.”

*
ba *

21. The task of the Court in the present proceedings is to determine
whether or not there have been breaches of the 1955 Treaty, and if it
finds that such is the case, to draw the appropriate consequences accord-
ing to the submissions of the Parties. The Court is seised both of a claim
by Iran alleging breaches by the United States, and of a counter-claim by

16
174 OIL PLATFORMS (JUDGMENT)

the United States alleging breaches by Iran. Its jurisdiction to entertain
both the claim and the counter-claim is asserted to be based upon
Article XXI, paragraph 2, of the 1955 Treaty.

22. The Court recalls that, as regards the claim of Iran, the question of
jurisdiction has been the subject of a judgment, given on 12 December
1996, whereby the Court found “that it has jurisdiction, on the basis of
Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims
made by the Islamic Republic of Iran under Article X, paragraph 1, of
that Treaty” U.C.J. Reports 1996 (IT), p. 821, para. 55 (2)); certain ques-
tions have however been raised between the Parties as to the precise sig-
nificance or scope of that Judgment, which will be examined below.

As to the counter-claim, the Court also recalls that it decided by an
Order made on 10 March 1998 to admit the counter-claim, and indicated
in that Order that the facts alleged and relied on by the United States
“are capable of falling within the scope of Article X, paragraph 1, of the
1955 Treaty as interpreted by the Court”, and accordingly that “the
Court has jurisdiction to entertain the United States counter-claim in so
far as the facts alleged may have prejudiced the freedoms guaranteed by
Article X, paragraph 1” (C.J. Reports 1998, p. 204, para. 36). In this
respect also questions have been raised between the Parties as to the
significance and scope of that ruling on jurisdiction, and these will be
examined below.

It is however established, by the decisions cited, that both Iran’s claim
and the counter-claim of the United States can be upheld only so far as a
breach or breaches of Article X, paragraph 1, of the 1955 Treaty may be
shown, even though other provisions of the Treaty may be relevant to the
interpretation of that paragraph. Article X, paragraph 1, of the 1955
Treaty reads as follows: “Between the territories of the two High Con-
tracting Parties there shall be freedom of commerce and navigation.”

23. Before proceeding further, it will be convenient to set out the
factual background to the case, as it emerges from the pleadings of both
Parties; the broad lines of this background are not disputed, being a
matter of historical record. The actions giving rise to both the claim and
the counter-claim occurred in the context of the general events that took
place in the Persian Gulf between 1980 and 1988, in particular the armed
conflict that opposed Iran and Iraq. That conflict began on 22 September
1980, when Iraqi forces advanced into the western areas of Iranian terri-
tory, and continued until the belligerent parties accepted a ceasefire in the
summer of 1988, pursuant to United Nations Security Council resolu-
tion 598 (1987) of 20 July 1987. During the war, combat occurred in the
territories of both States, but the conflict also spread to the Persian Gulf
— which is an international commercial route and line of communication
of major importance — and affected commerce and navigation in the
region. From the very beginning of the conflict, on 22 September 1980,
Iran established a defence exclusion zone around its coasts; shortly after,
in early October 1980, Iraq declared a “prohibited war zone” and later

17
175 OIL PLATFORMS (JUDGMENT)

established a “naval total exclusive zone” in the northern area of the Per-
sian Gulf. In 1984, Iraq commenced attacks against ships in the Persian
Gulf, notably tankers carrying Iranian oil. These were the first incidents
of what later became known as the “Tanker War”: in the period between
1984 and 1988, a number of commercial vessels and warships of various
nationalities, including neutral vessels, were attacked by aircraft, heli-
copters, missiles or warships, or struck mines in the waters of the Persian
Gulf. Naval forces of both belligerent parties were operating in
the region, but Iran has denied responsibility for any actions other
than incidents involving vessels refusing a proper request for stop and
search. The United States attributes responsibility for certain incidents
to Iran, whereas Iran suggests that Iraq was responsible for them.

24. A number of States took measures at the time aimed at ensuring
the security of their vessels navigating in the Persian Gulf. In late 1986
and early 1987, the Government of Kuwait expressed its preoccupation
at Iran’s alleged targeting of its merchant vessels navigating in the Per-
sian Gulf. It therefore requested the United States, the United Kingdom
and the Soviet Union to “reflag” some of these vessels to ensure their
protection. Following this request, the Kuwaiti Oil Tanker Company was
able to charter a number of Soviet vessels, and to flag four ships under
United Kingdom registry and 11 ships under United States registry. In
addition, the Government of the United States agreed to provide all
United States-flagged vessels with a naval escort when transiting the Per-
sian Gulf, in order to deter further attacks; these escort missions were
initiated in July 1987, under the designation “Operation Earnest Will”.
Other foreign Powers, including Belgium, France, Italy, the Netherlands
and the United Kingdom, took parallel action, sending warships to the
region to protect international shipping. Despite these efforts, a number
of ships, including reflagged Kuwaiti vessels, merchant tankers carrying
Kuwaiti oil and warships participating in “Operation Earnest Will”,
suffered attacks or struck mines in the Persian Gulf between 1987 and
the end of the conflict.

25. Two specific attacks on shipping are of particular relevance in this
case. On 16 October 1987, the Kuwaiti tanker Sea Isle City, reflagged to
the United States, was hit by a missile near Kuwait harbour. The United
States attributed this attack to Iran, and three days later, on 19 October
1987, it attacked Iranian offshore oil production installations, claiming
to be acting in self-defence. United States naval forces launched an attack
against the Reshadat [“Rostam”] and Resalat [“Rakhsh”] complexes; the
R-7 and R-4 platforms belonging to the Reshadat complex were destroyed
in the attack. On 14 April 1988, the warship USS Samuel B. Roberts
struck a mine in international waters near Bahrain while returning from

18
176 OIL PLATFORMS (JUDGMENT)

an escort mission; four days later the United States, again asserting the
right of self-defence, employed its naval forces to attack and destroy
simultaneously the Nasr [“Sirri”] and Salman [“Sassan”] complexes.

26. These attacks by United States forces on the Iranian oil platforms
are claimed by Iran to constitute breaches of the 1955 Treaty; and the
attacks on the Sea Isle City and the USS Samuel B. Roberts were
invoked in support of the United States’ claim to act in self-defence. The
counter-claim of the United States is however not limited to those attacks;
according to the United States, Iran was in breach of its obligations
under Article X, paragraph 1, of the 1955 Treaty, “in attacking vessels in
the Gulf with mines and missiles and otherwise engaging in military
actions that were dangerous and detrimental to commerce and naviga-
tion between the territories of the United States and the Islamic Republic
of Iran”. According to the United States, Iran conducted an aggressive
policy and was responsible for more than 200 attacks against neutral
shipping in international waters and the territorial seas of Persian Gulf
States. Iran denies responsibility for those attacks, suggesting that they
were committed by Iraq and drawing attention to Iraq’s interest in inter-
nationalizing the conflict. Furthermore, Iran claims that the attitude of
the Iranian authorities and the measures taken by its naval forces in the
Persian Gulf were solely defensive in nature. It has emphasized that Iraq
was the aggressor State in the conflict, and has claimed that Iraq received
diplomatic, political, economic and military support from a number of
third countries that were not formally parties to the conflict, including
Kuwait, Saudi Arabia and the United States.

*

27. The Court will first consider a contention to which the United
States appears to have attributed a certain preliminary character. The
United States asks the Court to dismiss Iran’s claim and refuse it the
relief it seeks, because of Iran’s allegedly unlawful conduct, i.e., its viola-
tion of the 1955 Treaty and other rules of international law relating to the
use of force. The United States invokes what it suggests are three related
principles in support of this request. First, a party that acts improperly
with respect to the subject-matter of a dispute is not entitled to relief;
according to the United States, Iran had committed, at the time of the
actions against the platforms, manifestly illegal armed attacks on United
States and other neutral shipping in the Persian Gulf, and it has mis-
represented, in the present proceedings, the facts of the case before the
Court. Second, a party that has itself violated obligations identical to
those that are the basis for its application is not entitled to relief and Iran
had allegedly infringed itself the “mutual and reciprocal” obligations
arising from the 1955 Treaty. Third, an applicant is not entitled to relief
when the actions it complains of were the result of its own wrongful con-

19
177 OIL PLATFORMS (JUDGMENT)

duct. Thus the United States claims that the attacks on the platforms
were a consequence of Iran’s previous wrongful behaviour in the Persian
Gulf.

28. Iran responds that the concept of “clean hands” underlying these
arguments of the United States, “while reflecting and incorporating fun-
damental principles of law inspired by good faith, is not an autonomous
legal institution”. It contends that the concept of “clean hands” requires
the operation of other institutions or legal rules for its implementation.
Iran argues that the “plaintiff's own wrongful conduct” as a ground for
inadmissibility of a claim relates to claims arising in the context of dip-
lomatic protection and concerns only a foreign individual’s “clean hands”,
but that such a principle is irrelevant in direct State-to-State claims.
According to Iran, as far as State-to-State claims are concerned, such
principle may have legal significance only at the merits stage, and only at
the stage of quantification of damages, but does not deprive a State of
locus standi in judicio.

29. The Court notes that these issues were first raised by the United
States in its Counter-Memorial, after the Judgment of the Court of
12 December 1996 on the preliminary objection of the United States to
jurisdiction. In that pleading those issues were dealt with at the end, after
the United States had set out its arguments on the merits, and not by way
of a preliminary issue. In subsequent pleadings and in oral argument it
has presented them as having rather a preliminary character, but it has
nevertheless not gone so far as to suggest that they are issues of admis-
sibility, appropriate to be enquired into before any examination of the
merits. Objections to admissibility normally take the form of an assertion
that, even if the Court has jurisdiction and the facts stated by the appli-
cant State are assumed to be correct, nonetheless there are reasons why
the Court should not proceed to an examination of the merits. That is
not the case here. The United States does not ask the Court to find Iran’s
claim inadmissible; it asks the Court to dismiss that claim. It does not
argue that the Court should be debarred from examining the merits of
the Iranian claim on the grounds of Iran’s conduct; rather it argues that
Iran’s conduct is such that it “precludes it from any right to the relief it
seeks from this Court”, or that it “should not be permitted to recover on
its claim”. The United States invites the Court to make a finding “that
the United States measures against the platforms were the consequence
of Iran’s own unlawful uses of force” and submits that the “appropriate
legal consequences should be attached to that finding”. The Court notes
that in order to make that finding it would have to examine Iranian and
United States actions in the Persian Gulf during the relevant period —
which it has also to do in order to rule on the Iranian claim and the
United States counter-claim.

20
178 OIL PLATFORMS (JUDGMENT)

30. At this stage of its judgment, therefore, the Court does not need to
deal with the request of the United States to dismiss Iran’s claim and
refuse the relief that it seeks on the basis of the conduct attributed to
Iran. The Court will now proceed to the consideration of the claims made
by Iran and the defences put forward by the United States.

* = #
31. As noted above (paragraph 21), the dispute in the present case has
been brought before the Court on the jurisdictional basis of Article XXI,
paragraph 2, of the 1955 Treaty, which provides that

“Any dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International Court
of Justice, unless the High Contracting Parties agree to settlement by
some other pacific means.”

By its Judgment of 12 December 1996, the Court found that it had juris-
diction, on the basis of this Article, “to entertain the claims made by the
Islamic Republic of Iran under Article X, paragraph 1, of that Treaty”
U.C.J. Reports 1996 (IT), p. 821, para. 55 (2)), which provides, as noted
above (paragraph 22), that “Between the territories of the two High Con-
tracting Parties there shall be freedom of commerce and navigation.” In
the reasoning of that Judgment, the Court indicated that another Article
of the Treaty relied on by Iran, Article IV (which relates to reciprocal
treatment of nationals and companies of each party), could not “form the
basis of the Court’s jurisdiction” (ibid., p. 816, para. 36). It found further
that Article I of the Treaty, which provides that “There shall be firm and
enduring peace and sincere friendship between the United States of
America and Iran”, while being “such as to throw light on the interpreta-
tion of the other Treaty provisions” and “thus not without legal signifi-
cance for such an interpretation, . . . cannot, taken in isolation, be a basis
for the jurisdiction of the Court” (ibid., p. 815, para. 31). The task of the
Court is thus to ascertain whether there has been a breach by the United
States of the provisions of Article X, paragraph 1; other provisions of the
Treaty are only relevant in so far as they may affect the interpretation or
application of that text.

32. In that respect, the Court notes that the United States has relied on
Article XX, paragraph 1 (d), of the Treaty as determinative of the ques-
tion of the existence of a breach of its obligations under Article X. That
paragraph provides that

“The present Treaty shall not preclude the application of meas-
ures:

21
179 OIL PLATFORMS (JUDGMENT)

(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.”

It is the contention of the United States that the actions complained of by
Iran were measures necessary to protect the essential security interests of
the United States, and that accordingly, if those actions would otherwise
have been breaches of Article X, paragraph 1, of the Treaty, which the
United States denies, the effect of Article XX, paragraph 1 (d), is that
they are justified under the terms of the Treaty itself, and thus do not
constitute breaches of it.

33. In its Judgment on the United States preliminary objection of
12 December 1996, the Court ruled that Article XX, paragraph 1 (d), does
not afford an objection to admissibility, but “is confined to affording
the Parties a possible defence on the merits” (.C.J. Reports 1996 (IT),
p. 811, para. 20). In accordance with Article XXI, paragraph 2, of the
Treaty, it is now for the Court to interpret and apply that subparagraph,
inasmuch as such a defence is asserted by the United States.

34. As was noted in that Judgment, the Court has had occasion, in the
case concerning Military and Paramilitary Activities in and against Nica-
ragua (Nicaragua v. United States of America), to examine a provision
in another treaty concluded by the United States, of which the text
is substantially identical to that of Article XX, paragraph 1 (d). This
was Article XXI, paragraph 1 (d), of the 1956 Treaty of Friendship,
Commerce and Navigation between the United States and Nicaragua.
In its decision in that case, the Court observed that since that provision

“contains a power for each of the parties to derogate from the other
provisions of the Treaty, the possibility of invoking the clauses of
that Article must be considered once it is apparent that certain forms
of conduct by the United States would otherwise be in conflict with
the relevant provisions of the Treaty” U.C.J. Reports 1986, p. 117,
para. 225).

If in the present case the Court is satisfied by the argument of the
United States that the actions against the oil platforms were, in the
circumstances of the case, “measures . . . necessary to protect [the]
essential security interests” of the United States, within the meaning
of Article XX, paragraph 1 (d), of the 1955 Treaty, it must hold that
no breach of Article X, paragraph 1, of the Treaty has been established.

35. To uphold the claim of Iran, the Court must be satisfied both that
the actions of the United States, complained of by Iran, infringed the

22
180 OIL PLATFORMS (JUDGMENT)

freedom of commerce between the territories of the Parties guaranteed by
Article X, paragraph 1, and that such actions were not justified to protect
the essential security interests of the United States as contemplated by
Article XX, paragraph 1 (d). The question however arises in what order
the Court should examine these questions of interpretation and appli-
cation of the Treaty. In the case concerning Military and Paramilitary
Activities in and against Nicaragua, the Court first examined the question
whether the United States conduct constituted a prima facie breach of
other provisions of the Treaty; it concluded that the United States had
“committed acts which are in contradiction with the terms of the Treaty”,
but added that this was “subject to the question whether the exceptions in
Article XXI” of the 1956 Treaty, concerning inter alia protection of the
essential security interests of a party, “may be invoked to justify the acts
complained of” (Z C.J. Reports 1986, p. 140, para. 280). The Court thus
dealt first with the substantive provisions of the 1956 Treaty, breaches of
which had been alleged, before turning to Article XXI of the Treaty; in
effect, it analysed that Article as providing for “exceptions” to the sub-
stantive obligations provided for in other Articles of the Treaty (see ibid.,
p. 116, para. 222).

36. In the present case the United States has argued that Article XX,
paragraph 1 (d), of the 1955 Treaty is not a limitation on Article X,
paragraph 1, nor yet a derogation from it; and that it is a substantive
provision that determines, defines and delimits the obligations of the
parties, simultaneously with and on the same level as Article X, para-
graph 1. The United States therefore contends that there is no compelling
reason to examine the question of breach of Article X, paragraph 1,
before turning to Article XX, paragraph 1 (d); the Court can, it
suggests, dismiss the Iranian claim either on the ground that the actions of
the United States did not involve a breach of Article X, paragraph 1, or
on the ground that those actions were measures necessary to protect the
essential security interests of the United States, and therefore justified
under Article XX, paragraph 1 (d). On this basis, the United States
suggests, the order in which the issues are treated is a matter for the
discretion of the Court.

37. The Court does not consider that the order in which the Articles of
the 1956 Treaty were dealt with in the case concerning Military and
Paramilitary Activities in and against Nicaragua was dictated by the
economy of the Treaty; it was rather an instance of the Court’s “freedom
to select the ground upon which it will base its judgment” (Application of
the Convention of 1902 Governing the Guardianship of Infants, Judgment,
I C.J. Reports 1958, p. 62). In the present case, it appears to the Court
that there are particular considerations militating in favour of an exami-
nation of the application of Article XX, paragraph 1 (d), before turning
to Article X, paragraph 1. It is clear that the original dispute between the
Parties related to the legality of the actions of the United States, in the

23
181 OIL PLATFORMS (JUDGMENT)

light of international law on the use of force. At the time of those actions,
neither Party made any mention of the 1955 Treaty. The contention of
the United States at the time was that its attacks on the oil platforms
were justified as acts of self-defence, in response to what it regarded as
armed attacks by Iran, and on that basis it gave notice of its action to the
Security Council under Article 51 of the United Nations Charter. Before
the Court, it has continued to maintain that it was justified in acting as
it did in exercise of the right of self-defence; it contends that, even if
the Court were to find that its actions do not fall within the scope of
Article XX, paragraph 1 (d), those actions were not wrongful since they
were necessary and appropriate actions in self-defence.

38. Furthermore, as the United States itself recognizes in its Rejoin-
der, “The self-defense issues presented in this case raise matters of the
highest importance to all members of the international community”, and
both Parties are agreed as to the importance of the implications of the
case in the field of the use of force, even though they draw opposite con-
clusions from this observation. The Court therefore considers that, to the
extent that its jurisdiction under Article XXI, paragraph 2, of the 1955
Treaty authorizes it to examine and rule on such issues, it should do so.

39. The question of the relationship between self-defence and Ar-
ticle XX, paragraph 1 (d), of the Treaty has been disputed between the
Parties, in particular as regards the jurisdiction of the Court. The United
States emphasizes that the Court’s jurisdiction in this case is limited, pur-
suant to Article XXI, paragraph 2, of the 1955 Treaty, to the interpreta-
tion and application of that Treaty, and does not extend directly to the
determination of the legality of any action of either Party under general
international law. It has contended that

“the Court need not address the question of self-defence . . . [T]he
scope of the exemption provided by Article XX, paragraph 1 (d), is
not limited to those actions that would also meet the standards for
self-defence under customary international law and the United
Nations Charter.”

It however does not contend that the Treaty exempts it, as between the
parties, from the obligations of international law on the use of force, but
simply that where a party justifies certain action on the basis of
Article XX, paragraph 1 (d), that action has to be tested solely against
the criteria of that Article, and the jurisdiction conferred on the Court
by Article XXI, paragraph 2, of the Treaty goes no further than that.

40. In the view of the Court, the matter is one of interpretation of the
Treaty, and in particular of Article XX, paragraph 1 (d). The question is
whether the parties to the 1955 Treaty, when providing therein that it
should “not preclude the application of measures . . . necessary to protect

24
182 OIL PLATFORMS (JUDGMENT)

[the] essential security interests” of either party, intended that such should
be the effect of the Treaty even where those measures involved a use of
armed force; and if so, whether they contemplated, or assumed, a limi-
tation that such use would have to comply with the conditions laid down
by international law. In the case concerning Military and Paramilitary
Activities in and against Nicaragua the Court took the view that “action
taken in self-defence, individual or collective, might be considered as part
of the wider category of measures qualified in Article X XI” — the text in
that case corresponding to Article XX of the 1955 Treaty — “as ‘neces-
sary to protect’ the ‘essential security interests’ of a party” (.C.J. Reports
1986, p. 117, para. 224); and it cited an extract from the proceedings of
the United States Senate Foreign Relations Committee tending to show
that such had been the intentions of the Parties (ibid. ). This approach is
consistent with the view that, when Article XX, paragraph 1 (d), is
invoked to justify actions involving the use of armed force, allegedly in
self-defence, the interpretation and application of that Article will neces-
sarily entail an assessment of the conditions of legitimate self-defence
under international law.

41. It should not be overlooked that Article I of the 1955 Treaty,
quoted in paragraph 31 above, declares that “There shall be firm and
enduring peace and sincere friendship between the United States of
America and Iran.” The Court found in 1996 that this Article “is such as
to throw light on the interpretation of the other Treaty provisions”
(.C.J. Reports 1996 (IT), p. 815, para. 31). It is hardly consistent with
Article I to interpret Article XX, paragraph 1 (d), to the effect that the
“measures” there contemplated could include even an unlawful use of
force by one party against the other. Moreover, under the general rules of
treaty interpretation, as reflected in the 1969 Vienna Convention on the
Law of Treaties, interpretation must take into account “any relevant
rules of international law applicable in the relations between the parties”
(Art. 31, para. 3 (c)). The Court cannot accept that Article XX, para-
graph 1 (d), of the 1955 Treaty was intended to operate wholly inde-
pendently of the relevant rules of international law on the use of force, so
as to be capable of being successfully invoked, even in the limited context
of a claim for breach of the Treaty, in relation to an unlawful use of
force. The application of the relevant rules of international law relating
to this question thus forms an integral part of the task of interpretation
entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.

42. The Court is therefore satisfied that its jurisdiction under
Article XXI, paragraph 2, of the 1955 Treaty to decide any question of
interpretation or application of (inter alia) Article XX, paragraph 1 (d),
of that Treaty extends, where appropriate, to the determination whether
action alleged to be justified under that paragraph was or was not an

25
183 OIL PLATFORMS (JUDGMENT)

unlawful use of force, by reference to international law applicable to
this question, that is to say, the provisions of the Charter of the United
Nations and customary international law. The Court would however
emphasize that its jurisdiction remains limited to that conferred on it
by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always
conscious that it has jurisdiction only so far as conferred by the consent
of the parties.

*#

43. The Court will thus examine first the application of Article XX,
paragraph 1 (d), of the 1955 Treaty, which in the circumstances of this
case, as explained above, involves the principle of the prohibition in
international law of the use of force, and the qualification to it consti-
tuted by the right of self-defence. On the basis of that provision, a party
to the Treaty may be justified in taking certain measures which it consid-
ers to be “necessary” for the protection of its essential security interests.
As the Court emphasized, in relation to the comparable provision of the
1956 United States/Nicaragua Treaty in the case concerning Military and
Paramilitary Activities in and against Nicaragua, “the measures taken
must not merely be such as tend to protect the essential security interests
of the party taking them, but must be ‘necessary’ for that purpose”; and
whether a given measure is “necessary” is “not purely a question for the
subjective judgment of the party” (1 C.J. Reports 1986, p. 141, para. 282),
and may thus be assessed by the Court. In the present case, the question
whether the measures taken were “necessary” overlaps with the question
of their validity as acts of self-defence. As the Court observed in its deci-
sion of 1986 the criteria of necessity and proportionality must be observed
if a measure is to be qualified as self-defence (see ibid., p. 103, para. 194,
and paragraph 74 below).

44. In this connection, the Court notes that it is not disputed between
the Parties that neutral shipping in the Persian Gulf was caused consid-
erable inconvenience and loss, and grave damage, during the Iran-Iraq
war. It notes also that this was to a great extent due to the presence of
mines and minefields laid by both sides. The Court has no jurisdiction to
enquire into the question of the extent to which Iran and Iraq complied
with the international legal rules of maritime warfare. It can however
take note of these circumstances, regarded by the United States as
relevant to its decision to take action against Iran which it considered
necessary to protect its essential security interests. Nevertheless, the
legality of the action taken by the United States has to be judged by
reference to Article XX, paragraph | (d), of the 1955 Treaty, in the light
of international law on the use of force in self-defence.

26
184 OIL PLATFORMS (JUDGMENT)

45. The United States has never denied that its actions against
the Iranian platforms amounted to a use of armed force. Some of the
details of the attacks, so far as established by the material before the Court,
may be pertinent to any assessment of the lawfulness of those actions. As
already indicated, there were attacks on two successive occasions, on
19 October 1987 and on 18 April 1988. The Court will examine whether
each of these met the conditions of Article XX, paragraph 1 (d), as inter-
preted by reference to the relevant rules of international law.

*

46. The first installation attacked, on 19 October 1987, was the Resha-
dat complex, which consisted of three drilling and production platforms
— R-3, R-4 and R-7 — linked to a total of 27 oil wells. The crude oil
produced by the R-3 platform was transported by submarine pipeline to
the R-4 platform and thence, together with the crude oil produced by
R-4, to the R-7 platform that accommodated both production facilities
and living quarters. This latter platform was also connected by sub-
marine pipeline to another complex, named Resalat, which consisted of
three linked drilling and production platforms, referred to as R-1. All the
crude oil produced at the Reshadat and Resalat complexes, after gas and
water separation, was transported by undersea pipeline from the R-7
platform to Lavan Island. At the time of the United States attacks, these
complexes were not producing oil due to damage inflicted by prior Iraqi
attacks in October 1986, July 1987 and August 1987. Iran has maintained
that repair work on the platforms was close to completion in October
1987. The United States has however challenged this assertion (see below,
paragraphs 65 and 93).

47. On 19 October 1987, four destroyers of the United States Navy,
together with naval support craft and aircraft, approached the Reshadat
R-7 platform. Iranian personnel was warned by the United States forces
via radio of the imminent attack and abandoned the facility. The United
States forces then opened fire on the platform; a unit later boarded and
searched it, and placed and detonated explosive charges on the remaining
structure. The United States ships then proceeded to the R-4 platform,
which was being evacuated; according to a report of a Pentagon spokes-
man, cited in the press and not denied by the United States, the attack on
the R-4 platform had not been included in the original plan, but it was
seen as a “target of opportunity”. After having conducted reconnaissance
fire and then having boarded and searched the platform, the United
States forces placed and detonated explosive charges on this second
installation. As a result of the attack, the R-7 platform was almost com-
pletely destroyed and the R-4 platform was severely damaged. While the
attack was made solely on the Reshadat complex, it affected also the

27
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operation of the Resalat complex. Iran states that production from the
Reshadat and Resalat complexes was interrupted for several years.

48. The nature of this attack, and its alleged justification, was pre-
sented by the United States to the United Nations Security Council in the
following terms (letter from the United States Permanent Representative
of 19 October 1987, S/19219):

“In accordance with Article 51 of the Charter of the United
Nations, I wish, on behalf of my Government, to report that United
States forces have exercised the inherent right of self-defence under
international law by taking defensive action in response to attacks
by the Islamic Republic of Iran against United States vessels in the
Persian Gulf.

At approximately 11 p.m. Eastern Daylight Time on 16 October
1987, a Silkworm missile fired by Iranian forces from Iranian-
occupied Iraqi territory struck the Sea Isle City, a United States flag
vessel, in the territorial waters of Kuwait. This is the latest in a series
of such missile attacks against United States flag and other non-belli-
gerent vessels in Kuwaiti waters in pursuit of peaceful commerce.
These actions are, moreover, only the latest in a series of unlawful
armed attacks by Iranian forces against the United States, including
laying mines in international waters for the purpose of sinking or
damaging United States flag ships, and firing on United States air-
craft without provocation.

At approximately 7 a.m. Eastern Daylight Time on 19 October
1987, United States naval vessels destroyed the Iranian military
ocean platform at Rashadat /sic] (also known as Rostam) in inter-
national waters of the Persian Gulf. The military forces stationed on
this platform have engaged in a variety of actions directed against
United States flag and other non-belligerent vessels and aircraft.
They have monitored the movements of United States convoys by
radar and other means; co-ordinated minelaying in the path of our
convoys; assisted small-boat attacks against other non-belligerent
shipping; and fired at United States military helicopters, as occurred
on 8 October 1987. Prior warning was given to permit the evacua-
tion of the platform.”

49. In its Counter-Memorial, the United States linked its previous
invocation of the right of self-defence with the application of Article XX,
paragraph | (d), of the 1955 Treaty. It argued that Iranian actions dur-
ing the relevant period constituted a threat to essential security interests
of the United States, inasmuch as the flow of maritime commerce in the

28
186 OIL PLATFORMS (JUDGMENT)

Persian Gulf was threatened by Iran’s repeated attacks on neutral ves-
sels; that the lives of United States nationals were put at risk; that United
States naval vessels were seriously impeded in their security duties; and
that the United States Government and United States nationals suffered
severe financial losses. According to the United States, it was clear that
diplomatic measures were not a viable means of deterring Iran from its
attacks: “Accordingly, armed action in self-defense was the only option
left to the United States to prevent additional Iranian attacks.”

50. The Court will thus first concentrate on the facts tending to show
the validity or otherwise of the claim to exercise the right of self-defence.
In its communication to the Security Council, cited above, the United
States based this claim on the existence of

“a series of unlawful armed attacks by Iranian forces against the
United States, including laying mines in international waters for the
purpose of sinking or damaging United States flag ships, and firing
on United States aircraft without provocation” ;

it referred in particular to a missile attack on the Sea Isle City as being
the specific incident that led to the attack on the Iranian platforms.
Before the Court, it has based itself more specifically on the attack on the
Sea Isle City, but has continued to assert the relevance of the other
attacks (see paragraph 62 below). To justify its choice of the platforms as
target, the United States asserted that they had “engaged in a variety of
actions directed against United States flag and other non-belligerent
vessels and aircraft”. Iran has denied any responsibility for (in particular)
the attack on the Sea Isle City, and has claimed that the platforms had
no military purpose, and were not engaged in any military activity.

51. Despite having thus referred to attacks on vessels and aircraft of
other nationalities, the United States has not claimed to have been exer-
cising collective self-defence on behalf of the neutral States engaged in
shipping in the Persian Gulf; this would have required the existence of a
request made to the United States “by the State which regards itself as
the victim of an armed attack” (C.J. Reports 1986, p. 105, para. 199).
Therefore, in order to establish that it was legally justified in attacking
the Iranian platforms in exercise of the right of individual self-defence,
the United States has to show that attacks had been made upon it for
which Iran was responsible; and that those attacks were of such a nature

29
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as to be qualified as “armed attacks” within the meaning of that expres-
sion in Article 51 of the United Nations Charter, and as understood in
customary law on the use of force. As the Court observed in the case con-
cerning Military and Paramilitary Activities in and against Nicaragua, it
is necessary to distinguish “the most grave forms of the use of force
(those constituting an armed attack) from other less grave forms” (J. C.J.
Reports 1986, p. 101, para. 191), since “In the case of individual self-
defence, the exercise of this right is subject to the State concerned having
been the victim of an armed attack” (ibid., p. 103, para. 195). The United
States must also show that its actions were necessary and proportional to
the armed attack made on it, and that the platforms were a legitimate
military target open to attack in the exercise of self-defence.

52. Since it was the missile attack on the Sea Isle City that figured
most prominently in the United States contentions, the Court will first
examine in detail the evidence relating to that incident. The Sea Isle City
was a Kuwaiti tanker reflagged to the United States; on 16 October 1987
it had just ended a voyage under “Operation Earnest Will” (see para-
graph 24 above), when it was hit by a missile near Kuwait’s Al-Ahmadi
Sea Island (or Mina al-Ahmadi) terminal. This incident, which caused
damage to the ship and injury to six crew members, was claimed by the
United States to be the seventh involving Iranian anti-ship cruise missiles
in the area in the course of 1987. The United States asserts that the mis-
sile that struck the Sea Isle City was launched by Iran from a facility
located in the Fao area. It recalls that in February 1986 Iran had taken
control of a large part of the Fao peninsula and had captured three
formerly Iraqi missile sites in the area, which it held at the time of the
attack. It also maintains that there was an additional active cruise missile
staging facility on Iranian territory near the Fao peninsula.

53. The evidence produced by the United States includes images,
taken by satellite or aerial reconnaissance aircraft, of the Fao area and
of the four alleged missile sites under Iranian control at the time of the
attack, as well as a complementary expert report describing and exam-
ining this imagery. Although the United States has indicated that it was
unable to recover and examine fragments of the specific missile that hit
the Sea Isle City, it has produced, in the present proceedings, a state-
ment by an independent expert, dated 27 March 1997, based on a pre-
vious examination by United States military analysts of fragments
retrieved from other similar incidents in early 1987. That evidence shows,
in the United States submission, that the specific missile was a land-
launched HY-2 cruise missile of Chinese manufacture (also known as the
“Silkworm” missile). The United States has also produced the testi-
mony, dated 21 May 1997, of two Kuwaiti officers, to the effect that
military personnel stationed on Kuwaiti islands had witnessed, in
January, September and October 1987, the launching of six missiles
from Iranian-controlled territory in the Fao area; in addition, one of

30
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these officers asserts that he personally observed the path of the missile
that struck the Sea Isle City on 16 October 1987.

54. Iran suggests that no credible evidence has been produced that
there were operational Iranian missile sites in the Fao area; it acknow-
ledges that it had captured three Iraqi missile sites in 1986, but these
“were heavily damaged during the fighting with Iraq” and “were inop-
erative throughout the period that Iranian forces held Fao”. It therefore
denies that the missile that struck the Sea Isle City was launched from
those sites, or from an additional Iranian Silkworm missile site that the
United States claims to have identified in the area, the existence of which
Iran denies. Iran observes that the satellite images produced by the
United States are not very clear, and appeals to its own experts’ opinion
to prove that the installations shown therein “bear no resemblance to a
normal Silkworm missile site”. Moreover, according to Iran, other United
States evidence would show that, at the time of the attack, Iran had
operative missile sites only in the Strait of Hormuz. Iran maintains that
the statement of Kuwaiti officers produced by the United States is uncon-
vincing since it is largely based on hearsay and is in part inconsistent.

55. Iran also suggests the alternative theory that the missile that hit the
Sea Isle City was fired by Iraq, which, it contends, had both the appro-
priate missile capabilities, and an interest in internationalizing the con-
flict with Iran. According to Iran, the missile could have been launched
by Iraq either from an aircraft, from a naval vessel or from an “opera-
tional missile site located at a position on Fao just to the west of areas
occupied by Iran”. Iran alleges that, while the maximum range of the
standard HY-2 (Silkworm) missile is 95 km, Iraq was in possession of
modified versions of that missile that could cover ranges up to 150 or
even 200 km. Moreover, according to an expert report produced by Iran,
a missile of this kind does not necessarily travel in a straight line and
could have been heading in the direction observed by the witnesses
invoked by the United States even if it had not been launched from
Iranian-held territory in the Fao area.

56. The United States claims that its satellite imagery shows that there
was no Iraqi missile launching facility in the Fao area at the time. It also
affirms, on the basis of an independent expert’s opinion, that HY-2
missiles are not equipped with a system capable of guiding them along a
circuitous path, as contended by Iran. Finally, the United States rejects
the Iranian theory that the missile was launched from air or sea, both
because the fragments of missiles launched against Kuwaiti territory at
the same period indicated a land-launched missile, and because United
States AWACS radar planes did not detect any Iraqi military aircraft
aloft in the northern Persian Gulf at the time of the attacks.

31
189 OIL PLATFORMS (JUDGMENT)

57. For present purposes, the Court has simply to determine whether
the United States has demonstrated that it was the victim of an “armed
attack” by Iran such as to justify it using armed force in self-defence; and
the burden of proof of the facts showing the existence of such an attack
rests on the United States. The Court does not have to attribute respon-
sibility for firing the missile that struck the Sea Isle City, on the basis of
a balance of evidence, either to Iran or to Iraq; if at the end of the day
the evidence available is insufficient to establish that the missile was fired
by Iran, then the necessary burden of proof has not been discharged by
the United States.

58. As noted above, the United States claims that the missile that
struck the Sea Isle City was a ground-launched HY-2 anti-ship missile of
the type known as the “Silkworm”, but it has not been able to produce
physical evidence of this, for example in the form of recovered fragments
of the missile. The Court will however examine the other evidence on the
hypothesis that the missile was of this type. The United States contends
that the missile was fired from Iranian-held territory in the Fao area, and
it has offered satellite pictures and expert evidence to show that there
was, at the time, Iranian missile-firing equipment present there. Even
with the assistance of the expert reports offered by both Parties, the
Court does not however find the satellite images sufficiently clear to
establish this point. The evidence that the particular missile came from
the Fao direction is the testimony, mentioned above, of a Kuwaiti mili-
tary officer, who claims to have observed the flight of the missile over-
head, and thus to be able to identify the approximate bearing on which it
was travelling. However, this testimony was given ten years after the
reported events; and the officer does not state that he observed the
launch of the missile (and the alleged firing point was too remote for this
to have been possible), nor that he saw the missile strike the Sea Isle
City, but merely that he saw a missile passing “overhead”, and that that
vessel was struck by a missile “minutes later”. In sum, the witness evi-
dence cannot be relied upon. Furthermore, the Court notes that there is
a discrepancy between the English and Arabic texts of the statement pro-
duced before the Court, both of which were signed by the witness; the
Arabic version lacks any indication of the bearing on which the observed
missile was travelling.

59. There is a conflict of evidence between the Parties as to the char-
acteristics of the Silkworm missile, in particular its maximum range, and
whether or not when fired it always follows a straight-line course. Accord-
ing to the United States, the maximum range of the missile is of the order
of 105 km, and this type of missile always follows a straight course until
it approaches its objective, when its on-board guidance equipment causes
it to lock on to a target which may be up to 12 degrees on either side of
its course. Iran however contends that the missile may also be set to fol-
low either a curved or dog-leg path, and that its maximum range is less,
95 km at the most. The Court does not consider that it is necessary for it

32
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to decide between the conflicting expert testimony. It appears that at the
time different models of the missile existed, with differing programming
characteristics and maximum ranges. There is however no direct evidence
at all of the type of missile that struck the Sea Isle City; the evidence as
to the nature of other missiles fired at Kuwaiti territory at this period is
suggestive, but no more. In considering whether the United States has
discharged the burden of proof that Iranian forces fired the missile that
struck the Sea Isle City, the Court must take note of this deficiency in the
evidence available.

60. In connection with its contention that the Sea Isle City was the
victim of an attack by Iran, the United States has referred to an announce-
ment by President Ali Khameini of Iran some three months earlier, indi-
cating that Iran would attack the United States if it did not “leave the
region”. This however is evidently not sufficient to justify the conclusion
that any subsequent attack on the United States in the Persian Gulf was
indeed the work of Iran. The United States also observes that, at the
time, Iran was blamed for the attack by “Lloyd’s Maritime Information
Service, the General Council of British Shipping, Jane’s Intelligence
Review and other authoritative public sources”. These “public sources”
are by definition secondary evidence; and the Court has no indication of
what was the original source, or sources, or evidence on which the public
sources relied. In this respect the Court would recall the caveat it included
in its Judgment in the case concerning Military and Paramilitary Activi-
ties in and against Nicaragua, that “Widespread reports of a fact may
prove on closer examination to derive from a single source, and such
reports, however numerous, will in such case have no greater value as
evidence than the original source.” (Z. C.J. Reports 1986, p. 41, para. 63.)

61. In short, the Court has examined with great care the evidence and
arguments presented on each side, and finds that the evidence indicative
of Iranian responsibility for the attack on the Sea Isle City is not suffi-
cient to support the contentions of the United States. The conclusion to
which the Court has come on this aspect of the case is thus that the
burden of proof of the existence of an armed attack by Iran on the
United States, in the form of the missile attack on the Sea Isle City, has
not been discharged.

62. In its notification to the Security Council, and before the Court,
the United States has however not relied solely on the Sea Isle City inci-
dent as constituting the “armed attack” to which the United States
claimed to be responding. It asserted that that incident was “the latest in
a series of such missile attacks against United States flag and other non-
belligerent vessels in Kuwaiti waters in pursuit of peaceful commerce”
and that

33
191 OIL PLATFORMS (JUDGMENT)

“These actions are, moreover, only the latest in a series of
unlawful armed attacks by Iranian forces against the United States,
including laying mines in international waters for the purpose of
sinking or damaging United States flag ships, and firing on United
States aircraft without provocation.” (See paragraph 48 above.)

Before the Court, it has contended that the missile attack on the Sea Isle
City was itself an armed attack giving rise to the right of self-defence; the
alleged pattern of Iranian use of force, it is said, “added to the gravity of
the specific attacks, reinforced the necessity of action in self-defense, and
helped to shape the appropriate response”.

63. The United States relies on the following incidents involving United
States-flagged, or United States-owned, vessels and aircraft, in the period
up to 19 October 1987, and attributes them to Iranian action: the mining
of the United States-flagged Bridgeton on 24 July 1987; the mining of the
United States-owned Texaco Caribbean on 10 August 1987; and firing
on United States Navy helicopters by Iranian gunboats, and from the
Reshadat oil platform, on 8 October 1987. The United States also claims
to have detected and boarded an Iranian vessel, the Jran Ajr, in the act of
laying mines in international waters some 50 nautical miles north-east of
Bahrain, in the vicinity of the entrance to Bahrain’s deep-water shipping
channel. Iran has denied any responsibility for the mining of the Bridge-
ton and the Texaco Caribbean; as regards the /ran Ajr, Iran has
admitted that the vessel was carrying mines, but denies that they were
being laid at the time it was boarded, and claims that its only mission
was to transport them by a secure route to a quite different area.

64. On the hypothesis that all the incidents complained of are to be
attributed to Iran, and thus setting aside the question, examined above,
of attribution to Iran of the specific attack on the Sea Isle City, the ques-
tion is whether that attack, either in itself or in combination with the rest
of the “series of . . . attacks” cited by the United States can be catego-
rized as an “armed attack” on the United States justifying self-defence.
The Court notes first that the Sea Isle City was in Kuwaiti waters at the
time of the attack on it, and that a Silkworm missile fired from (it is
alleged) more than 100 km away could not have been aimed at the spe-
cific vessel, but simply programmed to hit some target in Kuwaiti waters.
Secondly, the Texaco Caribbean, whatever its ownership, was not flying
a United States flag, so that an attack on the vessel is not in itself to be
equated with an attack on that State. As regards the alleged firing on
United States helicopters from Iranian gunboats and from the Reshadat

34
192 OIL PLATFORMS (JUDGMENT)

oil platform, no persuasive evidence has been supplied to support this
allegation. There is no evidence that the minelaying alleged to have been
carried out by the /ran Ajr, at a time when Iran was at war with Iraq, was
aimed specifically at the United States; and similarly it has not been
established that the mine struck by the Bridgeton was laid with
the specific intention of harming that ship, or other United States vessels.
Even taken cumulatively, and reserving, as already noted, the question
of Iranian responsibility, these incidents do not seem to the Court to
constitute an armed attack on the United States, of the kind that the
Court, in the case concerning Military and Paramilitary Activities in and
against Nicaragua, qualified as a “most grave” form of the use of
force (see paragraph 51 above).

*

65. The second occasion on which Iranian oil installations were
attacked was on 18 April 1988, with the action against the Salman and
Nasr complexes. The Salman offshore oil complex consisted of seven
interconnected platforms, including one drilling and two production plat-
forms. Oil extracted from 21 wells was transported by submarine pipeline
to this complex, and then on to Lavan Island after initial water and gas
separation. This complex had been attacked by Iraq in October and
November 1986, and was still undergoing repairs in April 1988; by that
time, according to Iran, the works were “virtually completed”, but the
United States questions this. The Nasr complex comprised one central
platform, one flaring point, and six oil-producing platforms grouped
around the central platform, served by 44 wells in the Sirri field and four
wells in the Nosrat field. Crude oil from all these wells was transported
by submarine pipeline to the central platform, and from there to Sirri
Island. This complex was functioning normally in April 1988.

66. United States naval forces attacked the Salman and Nasr com-
plexes on 18 April 1988. Two destroyers and a supply ship were involved
in the attack on the Salman complex: shortly before 8 a.m., local time,
the United States forces warned the personnel on the platforms that the
attack was due to begin; some of them began to evacuate the installation,
while others opened fire. A few minutes later, shelling on the complex
commenced from United States ships, warplanes and helicopters. United
States forces then boarded some of the platforms (but not that containing
the control centre), and placed and detonated explosives. Iran states that
the attack caused severe damage to the production facilities of the
platforms, and that the activities of the Salman complex were totally

35
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interrupted for four years, its regular production being resumed only
in September 1992, and reaching a normal level in 1993.

The central platform of the Nasr complex was attacked at around
8.15 a.m. by three United States warships and a number of helicopters.
After having been warned of the imminent military action, Iranian per-
sonnel evacuated the platform. The United States forces bombarded the
installation and almost completely destroyed it; the platform was not
boarded, since it was considered unsafe due to secondary explosions and
fire. According to Iranian accounts, activities in the whole Nasr complex
(including oil production and water injection) were interrupted as a con-
sequence of the attack and did not resume until nearly four years later.

67. The nature of the attacks on the Salman and Nasr complexes, and
their alleged justification, was presented by the United States to the
United Nations Security Council in the following terms (letter from the
United States Permanent Representative of 18 April 1988, S/19791):

“In accordance with Article 51 of the Charter of the United
Nations, I wish, on behalf of my Government, to report that United
States forces have exercised their inherent right of self-defence under
international law by taking defensive action in response to an attack
by the Islamic Republic of Iran against a United States naval vessel
in international waters of the Persian Gulf. The actions taken are
necessary and are proportionate to the threat posed by such hostile
Iranian actions.

At approximately 1010 Eastern Daylight Time on 14 April the
USS Samuel B. Roberts was struck by a mine approximately 60 miles
east of Bahrain, in international waters. Ten US sailors were injured,
one seriously, and the ship was damaged. The mine which struck the
Roberts was one of at least four mines laid in this area. The United
States has subsequently identified the mines by type, and we have
conclusive evidence that these mines were manufactured recently in
Iran. The mines were laid in shipping lanes known by Iran to be
used by US vessels, and intended by them to damage or sink such
vessels. This is but the latest in a series of offensive attacks and
provocations Iranian naval forces have taken against neutral
shipping in the international waters of the Persian Gulf.

Through diplomatic channels, the United States has informed the
Government of the Islamic Republic of Iran on four separate occa-
sions, most recently 19 October 1987, that the United States would
not accept Iran’s minelaying in international waters or in the waters

36
194 OIL PLATFORMS (JUDGMENT)

of neutral States. In October, my Government indicated that the
United States did not seek a military confrontation with Iran, but
that it would take appropriate defensive measures against such hos-
tile actions.

Starting at approximately 0100 Eastern Daylight Time 18 April
US forces attacked military targets in the Persian Gulf which have
been used for attacks against non-belligerent shipping in interna-
tional waterways of the Gulf.

The US actions have been against legitimate military targets. All
feasible measures have been taken to minimize the risk of civilian
damage or casualties...”

68. The Court notes that the attacks on the Salman and Nasr plat-
forms were not an isolated operation, aimed simply at the oil installa-
tions, as had been the case with the attacks of 19 October 1987; they
formed part of a much more extensive military action, designated “Opera-
tion Praying Mantis”, conducted by the United States against what it
regarded as “legitimate military targets”; armed force was used, and
damage done to a number of targets, including the destruction of two
Iranian frigates and other Iranian naval vessels and aircraft.

69. The USS Samuel B. Roberts was a warship returning to Bahrain
on 14 April 1988, after escorting a convoy of United States-flagged mer-
chant ships in the context of “Operation Earnest Will”, when it hit a
mine near Shah Allum Shoal in the central Persian Gulf. The United
States reports that, in the days following the attack, Belgian and Dutch
mine-clearing forces and its own navy discovered several mines bearing
Iranian serial numbers in the vicinity and it concludes therefore that the
mine struck by the USS Samuel B. Roberts was laid by Iran. It also
adduces other discoveries of Iranian mining activities at the time (includ-
ing the boarding by United States forces of the Iranian vessel Jran Ajr,
said to have been caught in the act of laying mines, referred to in para-
graph 63 above), contemporary statements by Iranian military leaders
and conclusions of the international shipping community (see para-
graph 60 above), all allegedly demonstrating that Iran made a general
practice of using mines to attack neutral shipping.

70. Iran denies that it had systematic recourse to minelaying in the
Persian Gulf and suggests that evidence produced by the United States is
unpersuasive. Furthermore, it contends that the United States has sub-
mitted no independent evidence that the laying of the mine that hit the

37
195 OIL PLATFORMS (JUDGMENT)

USS Samuel B. Roberts is attributable to Iran. Iran also suggests that the
mine may have been laid by Iraq, a hypothesis that the United States
rejects.

71. As in the case of the attack on the Sea Isle City, the first question
is whether the United States has discharged the burden of proof that the
USS Samuel B. Roberts was the victim of a mine laid by Iran. The Court
notes that mines were being laid at the time by both belligerents in the
Iran-Iraq war, so that evidence of other minelaying operations by Iran is
not conclusive as to responsibility of Iran for this particular mine. In its
communication to the Security Council in connection with the attack of
18 April 1988, the United States alleged that “The mines were laid in
shipping lanes known by Iran to be used by US vessels, and intended by
them to damage or sink such vessels” (paragraph 67 above). Iran has
claimed that it laid mines only for defensive purposes in the Khor Abdul-
lah Channel, but the United States has submitted evidence suggesting
that Iran’s mining operations were more extensive. The main evidence
that the mine struck by the USS Samuel B. Roberts was laid by Iran was
the discovery of moored mines in the same area, bearing serial numbers
matching other Iranian mines, in particular those found aboard the vessel
Iran Ajr (see paragraph 63 above). This evidence is highly suggestive, but
not conclusive.

72. The Court notes further that, as on the occasion of the earlier
attack on oil platforms, the United States in its communication to the
Security Council claimed to have been exercising the right of self-defence
in response to the “attack” on the USS Samuel B. Roberts, linking it also
with “a series of offensive attacks and provocations Iranian naval forces
have taken against neutral shipping in the international waters of the Per-
sian Gulf” (paragraph 67 above). Before the Court, it has contended, as
in the case of the missile attack on the Sea Isle City, that the mining was
itself an armed attack giving rise to the right of self-defence and that the
alleged pattern of Iranian use of force “added to the gravity of the spe-
cific attacks, reinforced the necessity of action in self-defense, and helped
to shape the appropriate response” (see paragraph 62 above). No attacks
on United States-flagged vessels (as distinct from United States-owned
vessels), additional to those cited as justification for the earlier attacks on
the Reshadat platforms, have been brought to the Court’s attention,
other than the mining of the USS Samuel B. Roberts itself. The question
is therefore whether that incident sufficed in itself to justify action in self-
defence, as amounting to an “armed attack”. The Court does not exclude
the possibility that the mining of a single military vessel might be suffi-
cient to bring into play the “inherent right of self-defence” ; but in view of
all the circumstances, including the inconclusiveness of the evidence of
Iran’s responsibility for the mining of the USS Samuel B. Roberts, the

38
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Court is unable to hold that the attacks on the Salman and Nasr plat-
forms have been shown to have been justifiably made in response to an
“armed attack” on the United States by Iran, in the form of the mining of
the USS Samuel B. Roberts.

*

73. As noted above (paragraph 43), in the present case a question of
whether certain action is “necessary” arises both as an element of inter-
national law relating to self-defence and on the basis of the actual terms
of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted,
whereby the Treaty does “not preclude . . . measures . . . necessary to
protect [the] essential security interests” of either party. In this latter
respect, the United States claims that it considered in good faith that the
attacks on the platforms were necessary to protect its essential security
interests, and suggests that “A measure of discretion should be afforded
to a party’s good faith application of measures to protect its essential
security interests.” Iran was prepared to recognize some of the interests
referred to by the United States — the safety of United States vessels and
crew, and the uninterrupted flow of maritime commerce in the Persian
Gulf — as being reasonable security interests of the United States, but
denied that the United States actions against the platforms could be
regarded as “necessary” to protect those interests. The Court does not
however have to decide whether the United States interpretation of
Article XX, paragraph 1 (d), on this point is correct, since the require-
ment of international law that measures taken avowedly in self-defence
must have been necessary for that purpose is strict and objective, leaving
no room for any “measure of discretion”. The Court will therefore turn
to the criteria of necessity and proportionality in the context of inter-
national law on self-defence.

74. In its decision in the case concerning Military and Paramilitary
Activities in and against Nicaragua, the Court endorsed the shared view
of the parties to that case that in customary law “whether the response to
the [armed] attack is lawful depends on observance of the criteria of the
necessity and the proportionality of the measures taken in self-defence”
(.C.J. Reports 1986, p. 103, para. 194). One aspect of these criteria is the
nature of the target of the force used avowedly in self-defence. In its com-
munications to the Security Council, in particular in that of 19 October
1987 (paragraph 46 above), the United States indicated the grounds on

39
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which it regarded the Iranian platforms as legitimate targets for an armed
action in self-defence. In the present proceedings, the United States has
continued to maintain that they were such, and has presented evidence
directed to showing that the platforms collected and reported intelligence
concerning passing vessels, acted as a military communication link co-
ordinating Iranian naval forces and served as actual staging bases to
launch helicopter and small boat attacks on neutral commercial shipping.
The United States has referred to documents and materials found by its
forces aboard the vessel Jran Ajr (see paragraph 63 above), allegedly
establishing that the Reshadat platforms served as military communica-
tion facilities. It has also affirmed that the international shipping com-
munity at the time was aware of the military use of the platforms, as
confirmed by the costly steps commercial vessels took to avoid them, and
by various witness reports describing Iranian attacks. The United States
has also submitted expert analysis of the conditions and circumstances
surrounding these attacks, examining their pattern and location in the
light of the equipment at Iran’s disposal. Finally, the United States has
produced a number of documents, found on the Reshadat complex when
it was attacked, allegedly corroborating the platforms’ military function.
In particular, it contends that these documents prove that the Reshadat
platforms had monitored the movements of the Sea Isle City on 8 August
1987. On the other hand, the forces that attacked the Salman and Nasr
complexes were not able to board the platforms containing the control
centres, and did not therefore seize any material (if indeed such existed)
tending to show the use of those complexes for military purposes.

75. Iran recognizes the presence of limited military personnel and
equipment on the Reshadat platforms, but insists that their purpose was
exclusively defensive and justified by previous Iraqi attacks on its oil pro-
duction facilities. Iran further challenges the evidence adduced by the
United States in this regard. It alleges that documents found aboard the
Iran Ajr and the Reshadat platforms are read out of their proper context,
incorrectly translated and actually consistent with the platforms’ purely
defensive role; and that military expert analysis relied on by the United
States is hypothetical and contradictory. Iran asserts further that reports
and testimony referred to by the United States are mostly non-specific
about the use of the platforms as staging bases to launch attacks, and
that the equipment at its disposal could be used from mainland and off-
shore islands, without any need to have recourse to the platforms.

40
198 OIL PLATFORMS (JUDGMENT)

76. The Court is not sufficiently convinced that the evidence available
supports the contentions of the United States as to the significance of the
military presence and activity on the Reshadat oil platforms; and it notes
that no such evidence is offered in respect of the Salman and Nasr com-
plexes. However, even accepting those contentions, for the purposes of
discussion, the Court is unable to hold that the attacks made on the plat-
forms could have been justified as acts of self-defence. The conditions for
the exercise of the right of self-defence are well settled: as the Court
observed in its Advisory Opinion on Legality of the Threat or Use of
Nuclear Weapons, “The submission of the exercise of the right of self-
defence to the conditions of necessity and proportionality is a rule of cus-
tomary international law” (Z C.J. Reports 1996 (I), p. 245, para. 41);
and in the case concerning Military and Paramilitary Activities in and
against Nicaragua, the Court referred to a specific rule “whereby self-
defence would warrant only measures which are proportional to the
armed attack and necessary to respond to it” as “a rule well established
in customary international law” (.C.J. Reports 1986, p. 94, para. 176).
In the case both of the attack on the Sea Isle City and the mining of
the USS Samuel B. Roberts, the Court is not satisfied that the attacks on
the platforms were necessary to respond to these incidents. In this
connection, the Court notes that there is no evidence that the United
States complained to Iran of the military activities of the platforms, in
the same way as it complained repeatedly of minelaying and attacks on
neutral shipping, which does not suggest that the targeting of the plat-
forms was seen as a necessary act. The Court would also observe that
in the case of the attack of 19 October 1987, the United States forces
attacked the R-4 platform as a “target of opportunity”, not one previ-
ously identified as an appropriate military target (see paragraph 47
above).

77. As to the requirement of proportionality, the attack of 19 October
1987 might, had the Court found that it was necessary in response to the
Sea Isle City incident as an armed attack committed by Iran, have been
considered proportionate. In the case of the attacks of 18 April 1988,
however, they were conceived and executed as part of a more extensive
operation entitled “Operation Praying Mantis” (see paragraph 68 above).
The question of the lawfulness of other aspects of that operation is not
before the Court, since it is solely the action against the Salman and Nasr
complexes that is presented as a breach of the 1955 Treaty; but the Court
cannot assess in isolation the proportionality of that action to the attack
to which it was said to be a response; it cannot close its eyes to the scale
of the whole operation, which involved, inter alia, the destruction of two
Iranian frigates and a number of other naval vessels and aircraft. As a
response to the mining, by an unidentified agency, of a single United
States warship, which was severely damaged but not sunk, and without
loss of life, neither “Operation Praying Mantis” as a whole, nor even that

41
199 OIL PLATFORMS (JUDGMENT)

part of it that destroyed the Salman and Nasr platforms, can be regarded,
in the circumstances of this case, as a proportionate use of force in
self-defence.

*

78. The Court thus concludes from the foregoing that the actions
carried out by United States forces against Iranian oil installations on
19 October 1987 and 18 April 1988 cannot be justified, under Article XX,
paragraph 1 (d), of the 1955 Treaty, as being measures necessary to pro-
tect the essential security interests of the United States, since those
actions constituted recourse to armed force not qualifying, under inter-
national law on the question, as acts of self-defence, and thus did not fall
within the category of measures contemplated, upon its correct interpre-
tation, by that provision of the Treaty.

* *

79. Having satisfied itself that the United States may not rely, in the
circumstances of the case, on the defence to the claim of Iran afforded by
Article XX, paragraph 1 (d), of the 1955 Treaty, the Court has now to
turn to that claim, made under Article X, paragraph 1, of that Treaty,
which provides that “Between the territories of the two High Contracting
Parties there shall be freedom of commerce and navigation.” In that
respect, Iran’s submission is that “in attacking and destroying on 19 Octo-
ber 1987 and 18 April 1988 the oil platforms referred to in Iran’s Appli-
cation, the United States breached its obligations to Iran under Article X,
paragraph 1, of the Treaty of Amity . . .”. It contends that the United
States attacks on the oil platforms were directed against commercial
facilities that were protected by Article X, paragraph 1, that they
“impeded the normal functioning of the oil platforms and that they even
resulted in the complete interruption of the platforms’ activities, . . . thus
preventing gravely ab ovo the possibility for Iran to enjoy freedom of
commerce as guaranteed by” that Article.

80. As noted above (paragraph 31), in its Judgment of 12 December
1996 on the preliminary objection of the United States, the Court
had occasion, for the purposes of ascertaining and defining the scope
of its jurisdiction, to interpret a number of provisions of the 1955
Treaty, including Article X, paragraph 1. It noted that the Applicant
had not alleged that any military action had affected its freedom of
navigation, so that the only question to be decided was “whether the
actions of the United States complained of by Iran had the potential
to affect ‘freedom of commerce’” as guaranteed by that provision (/. C.J.

42
200 OIL PLATFORMS (JUDGMENT)

Reports 1996 (II), p. 817, para. 38). The Court also rejected the view,
advanced by the United States, that the word “commerce” in Article X,
paragraph 1, is confined to maritime commerce (ibid., para. 43). After
examining the contentions of the Parties as to the meaning of the word,
the Court concluded that

“it would be a natural interpretation of the word ‘commerce’ in
Article X, paragraph 1, of the Treaty of 1955 that it includes com-
mercial activities in general — not merely the immediate act of pur-
chase and sale, but also the ancillary activities integrally related to
commerce” (ibid., p. 819, para. 49).

81. In 1996 the Court was concerned only to resolve the questions of
its jurisdiction raised by the preliminary objection presented by the
United States. For that purpose, it was not called upon to decide whether
the actions of the United States did in fact interfere with freedom of com-
merce between the territories of the Parties, but only whether, as stated in
the Judgment, the lawfulness of those actions could be evaluated in rela-
tion to Article X, paragraph 1 (ibid., p. 820, para. 51). It has been suggested
by the United States in its written pleadings that that Article does not
in fact create specific legal obligations relevant to Iran’s claims, but
is merely an “aspirational” provision, but this view, which the United
States did not press during the oral proceedings, does not seem to the
Court to be consistent either with the structure of the 1955 Treaty or
with the Court’s 1996 Judgment.

82. In that decision, the Court observed that it did not then have to
enter into the question whether Article X, paragraph 1, “is restricted to
commerce ‘between’ the Parties” (ibid., p. 817, para. 44). However it is
now common ground between the Parties that that provision is in terms
limited to the protection of freedom of commerce “between the territories
of the two High Contracting Parties”. The Court observes that it is oil
exports from Iran to the United States that are relevant to the case, not
such exports in general. The United States has argued that for the pur-
pose of interpreting Article X, paragraph 1, what must be considered is
whether oil from the specific platforms attacked was, or would have been,
exported to the United States. In this connection it questions whether the
platforms could be said to be on the “territory” of Iran, inasmuch as they
are outside Iran’s territorial sea, though upon its continental shelf, and
within its exclusive economic zone. The Court does not however consider
tenable an interpretation of the 1955 Treaty that would have differenti-
ated, for the purposes of “freedom of commerce”, between oil produced
on the land territory or the territorial sea of Iran, and oil produced on its
continental shelf, in the exercise of its sovereign rights of exploration and
exploitation of the shelf, and parallel rights over the exclusive economic
zone.

43
201 OIL PLATFORMS (JUDGMENT)

83. In the 1996 Judgment, the Court further emphasized that
“Article X, paragraph 1, of the Treaty of 1955 does not strictly speaking
protect ‘commerce’ but ‘freedom of commerce’”, and continued:

“Unless such freedom is to be rendered illusory, the possibility
must be entertained that it could actually be impeded as a result of
acts entailing the destruction of goods destined to be exported, or
capable of affecting their transport and storage with a view to
export.” (C.J. Reports 1996 (II), p. 819, para. 50.)

The Court also noted that

“Tran’s oil production, a vital part of that country’s economy, con-
stitutes an important component of its foreign trade.

On the material now before the Court, it is. . . not able to deter-
mine if and to what extent the destruction of the Iranian oil plat-
forms had an effect upon the export trade in Iranian oil. . .” (/bid.,
p. 820, para. 51.)

If, at the present stage of the proceedings, the Court were to find that
Iran had established that such was the case, the claim of Iran under
Article X, paragraph 1, could be upheld.

84. The arguments of the Parties in relation to Iran’s claim under that
provision have therefore focused on the first and last stages of the pro-
duction/export process. In order to establish that freedom of commerce
in oil between the territories of the Parties was affected by the attack, so
that the destruction of the platforms constituted a breach of Article X,
paragraph 1, Iran has sought to show that oil produced or processed by,
stored on, or transported from the platforms attacked could, to some
degree, have been exported to the United States, but this was prevented
by the destruction of the platforms. This has involved explanation of the
construction and operation of the platforms, and assessment of the impli-
cations of the damage caused to them by the attacks. The question has
also been raised as to whether there was an impact on overall oil exports
to the United States, contemporaneous with, and attributable to, the
attacks, or a potential impact of this kind, amounting to an interference
with “freedom” of commerce between the Parties’ territories.

85. Before turning to the facts and to the details of Iran’s claim, the
Court will mention one consideration advanced by the United States
which, if upheld, would render unnecessary any further examination of
the effects of the attacks on the platforms. The United States alleges, as
has already been noted in connection with its argument founded on self-
defence, that military forces were stationed on the platforms and played
a role in the attacks, attributable to Iran, on United States vessels and
other neutral shipping (see for example the communication from the
United States to the United Nations Security Council of 19 October
1987, quoted in paragraph 48 above). On this basis, the United States

44
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argues that the guarantee of “freedom of commerce” under Article X,
paragraph 1, of the 1955 Treaty cannot have been intended to shield one
party’s military activities against the other, and that therefore the cover-
age of that Article cannot be extended to the platforms in question. The
United States has not succeeded, to the satisfaction of the Court, in
establishing that the limited military presence on the platforms, and the
evidence as to communications to and from them, could be regarded as
justifying treating the platforms as military installations (see paragraph 76
above). For the same reason, the Court is unable to regard them as out-
side the protection afforded by Article X, paragraph 1, of the 1955
Treaty.

86. Iran’s initial claim that the attacks violated Article X, paragraph 1,
was based on the contention that “they destroyed important petroleum
installations used by Iran for the commercial exploitation of its natural
resources”, and that “fundamental economic and commercial activities
including oil production, storage and transportation were affected”. The
Court in its 1996 Judgment contemplated the possibility that freedom of
commerce could be impeded not only by “the destruction of goods des-
tined to be exported”, but also by acts “capable of affecting their trans-
port and their storage with a view to export” (Z C.J. Reports 1996 (IT),
p. 819, para. 50). In the view of the Court, the activities of the platforms
are to be regarded, in general, as commercial in nature; it does not, how-
ever, necessarily follow that any interference with such activities involves
an impact on the freedom of commerce between the territories of Iran
and the United States.

87. As regards the first of these categories of activity, “acts entailing
the destruction of goods destined to be exported”, the United States
observes, first, that the attacks on the platforms did not destroy any oil as
such; and secondly that in any event the platforms were not engaged in
producing goods destined for export. It explains that the oil extracted by
the platforms attacked was not in a form capable of being exported,
either when it came on to or when it left the platforms, since to transform
it into a product capable of being safely exported it was necessary to sub-
ject it to extensive processing, involving the extraction of gas, hydrogen
sulphide and water. Iran however suggests that the question is not
whether the oil was capable of being safely exported, but whether it was
a good destined for export; in addition, it observes that equipment
required for an initial processing of the oil extracted was situated on the
platforms and destroyed with them by the United States attacks. It does
not however contend that that initial processing rendered the oil capable
of being safely exported.

88. The Court also included in the category of acts interfering with

45
203 OIL PLATFORMS (JUDGMENT)

freedom of commerce “acts . . . capable of affecting [the] transport and
storage with a view to export” of goods destined to be exported. No
storage of oil was effected on the platforms; as regards transport, the
Court noted in 1996 that

“the oil pumped from the platforms attacked in October 1987 passed
from there by subsea line to the oil terminal on Lavan Island and
that the Salman complex, object of the attack of April 1988, was
also connected to the oil terminal on Lavan Island by subsea line”
(C.J. Reports 1996 (II), pp. 819-820, para. 50).

Similarly, the Nasr central platform served as a crude oil collecting point
for transfer by pipeline to Sirri Island. An act interfering with these sub-
sea lines would therefore prima facie have been an interference with the
transport of goods mainly destined for export; but according to the
United States the attacks on the platforms did not in fact damage the
subsea lines, but only the portions of the platform above the waterline.
An attempt was made by the United States Navy to destroy the power
generation platform of the Salman complex, and if this had been success-
ful it would, according to Iran, have destroyed the equipment necessary
for the transport of oil to Lavan Island, but the explosives placed failed
to detonate.

89. The Court notes that the conclusion which the United States is
inviting the Court to reach is, in effect, that military attacks on installa-
tions used for commercial oil exploitation, which caused — and were
intended to cause — very considerable damage to those installations,
proved to be limited in their effects to the extent necessary to avoid a
breach of a specific commercial treaty. Yet the Court notes also that
there is no evidence that the relevant military orders were devised with
this outcome in mind, or even that the existence and scope of the treaty
was taken into account at all at the time of the attacks. However that
may be, the Court considers that where a State destroys another State’s
means of production and transport of goods destined for export, or
means ancillary or pertaining to such production or transport, there is in
principle an interference with the freedom of international commerce. In
destroying the platforms, whose function, taken as a whole, was precisely
to produce and transport oil, the military actions made commerce in oil,
at that time and from that source, impossible, and to that extent preju-
diced freedom of commerce. While the oil, when it left the platform com-
plexes, was not yet in a state to be safely exported, the fact remains that
it could be already at that stage destined for export, and the destruction
of the platform prevented further treatment necessary for export. The
Court therefore finds that the protection of freedom of commerce under
Article X, paragraph 1, of the 1955 Treaty applied to the platforms
attacked by the United States, and the attacks thus impeded Iran’s free-
dom of commerce. However, the question remains whether there was in

46
204 OIL PLATFORMS (JUDGMENT)

this case an interference with freedom of commerce “between the territo-
ries of the High Contracting Parties”.

%

90. The United States in fact contends further that there was in any
event no breach of Article X, paragraph 1, inasmuch as, even assuming
that the attacks caused some interference with freedom of commerce, it
did not interfere with freedom of commerce “between the territories of
the two High Contracting Parties”. First, as regards the attack of 19 Octo-
ber 1987 on the Reshadat platforms, it observes that the platforms were
under repair as a result of an earlier attack on them by Iraq; conse-
quently, they were not engaged in, or contributing to, commerce between
the territories of the Parties. Secondly, as regards the attack of 18 April
1988 on the Salman and Nasr platforms, it draws attention to United
States Executive Order 12613, signed by President Reagan on 29 October
1987, which prohibited, with immediate effect, the import into the United
States of most goods (including oil) and services of Iranian origin. As
a consequence of the embargo imposed by this Order, there was, it is
suggested, no commerce between the territories of the Parties that could
be affected, and consequently no breach of the Treaty protecting it.

91. As the Court noted in its 1996 Judgment, it was then not contested
between the Parties (and is not now contested) that “oil exports from
Iran to the United States were — to some degree — ongoing at least until
after the destruction of the first set of oil platforms’, i.e., 19 October
1987 U.C.J. Reports 1996 (IT), p. 818, para. 44). It appears also to be
accepted by both Parties that the oil or petroleum products reaching the
United States during this period were to some extent derived from crude
oil produced by the platforms that were later subjected to attack. Iran
has explained that in peace time it had sold crude oil in cargoes where the
producing field was specifically identified, but during the Iran-Iraq war
all Iranian light crudes and heavy crudes were mixed and sold generically,
as either “Iranian light” or “Iranian heavy”. Iran has asserted, and the
United States has not denied, that there was a market for Iranian crude
oil directly imported into the United States up to the issuance of Execu-
tive Order 12613 of 29 October 1987. Thus Iranian oil exports did up to
that time constitute the subject of “commerce between the territories of
the High Contracting Parties” within the meaning of Article X, para-
graph 1, of the 1955 Treaty.

92. At the time of the attack of 19 October 1987 no oil whatsoever was
being produced or processed by the Reshadat and Resalat platforms,

47
205 OIL PLATFORMS (JUDGMENT)

since these had been put out of commission by earlier Iraqi attacks.
While it is true that the attacks caused a major setback to the process of
bringing the platforms back into production, there was at the moment of
the attacks on these platforms no ongoing commerce in oil produced or
processed by them. Iran however indicates that at the time of the attack
the platforms were nearly repaired and were about to resume production;
it argues that there was therefore an interference with “freedom of com-
merce”, when commerce is conceived as a pattern of trade over the years
and not a temporary phenomenon. Injury to potential for future com-
merce is however, in the Court’s view, not necessarily to be identified
with injury to freedom of commerce, within the meaning of Article X,
paragraph 1, of the 1955 Treaty. In its Judgment of 12 December 1996,
the Court emphasized that the Treaty protected “freedom of commerce”
rather than merely “commerce”; but deduced from this no more than
that

“the possibility must be entertained that [that freedom] could actu-
ally be impeded as a result of acts entailing the destruction of goods
destined to be exported, or capable of affecting their transport and
their storage with a view to export” (ZC.J. Reports 1996 (II),
p. 819, para. 50; emphasis added).

93. There is however a further aspect of the question. According to
Iran, the “Production Commissioning” schedule for the repair of the
platforms contemplated that production would resume at a date around
24 October 1987, but the Court has no information whether, at the time
of the attacks, the works were up to schedule. According to Iran, at the
time of the attacks the turbines that supplied power to the platforms were
being dismantled for repair, which does not suggest that the works were
within a few days of completion. On 29 October 1987 United States
Executive Order 12613 was issued, which put an end to imports of
Iranian crude oil into the United States. Iran has not brought evidence
to show that, if no attack had been made on the Reshadat platforms, pro-
duction from them would have been an element of “commerce” between
the two States before all direct commerce was halted by that Executive
Order, and the Court cannot regard that point as established.

94. The embargo imposed by Executive Order 12613 was already in
force when the attacks on the Salman and Nasr platforms were carried
out; and, as just indicated, it has not been shown that the Reshadat and
Resalat platforms would, had it not been for the attack of 19 Octo-
ber 1987, have resumed production before the embargo was imposed.
The Court must therefore consider the significance of that Executive
Order for the interpretation and application of Article X, paragraph 1, of
the 1955 Treaty. Iran has not disputed that the effect of the Executive
Order was to halt all direct exports of Iranian crude oil to the United
States. The United States therefore argues that “any damage done to
Iran’s oil platforms by US actions was irrelevant to Iran’s ability to

48
206 OIL PLATFORMS (JUDGMENT)

export oil to customers located in the United States”, and that conse-
quently the attacks did not constitute a violation of the freedom of com-
merce “between the territories of the two High Contracting Parties”. Iran
however, while not presenting any formal submission or claim that the
embargo was unlawful as itself a breach of Article X, paragraph 1, of the
1955 Treaty, has asserted that such was the case, and therefore suggests
that the argument advanced by the United States amounts to a party
taking advantage of its own wrong. The Iranian contention rests on the
hypothesis that the embargo was a breach of the 1955 Treaty, and not
justified under Article XX, paragraph 1 (d), thereof; but these are ques-
tions which Iran has chosen not to put formally in issue, and on which
the Court has thus not heard full argument. The Court is here concerned
with the practical effects of the embargo, about which there is no dispute.

95. In response to the contention of the United States that the damage
to the platforms was irrelevant to Iranian oil exports to the United
States, Iran argues that this conclusion does not follow from the mere
fact that direct import into the United States of Iranian crude oil, as
such, ceased with the issue of the embargo. Iran suggests that “It is in the
nature of the international oil trade that Iranian oil could not be excluded
from the United States”: “If Iranian crude oil was received by a refin-
ery”, for example in Western Europe, “and if that refinery in turn
exported products to the United States, then it follows that a quantity of
Iranian oil was necessarily imported into the United States in the form of
products.” Iran has observed that, as a result of the embargo, it found
itself in 1987 with a surplus crude oil production of approximately
345,000 barrels per day, and had to find other outlets, namely in the
Mediterranean and North-West Europe. At the same time, the United
States had to make good the shortfall resulting from the prohibition of
Iranian crude oil imports, and therefore increased its existing imports of
petroleum products from refineries in the Mediterranean and Western
Europe. Iran has submitted to the Court an expert report showing, inter
alia, a very considerable increase in exports of Iranian crude oil to West-
ern Europe from 1986 to 1987, and again in 1988, and an increase in
United States imports of petroleum products from Western European
refineries.

96. The Court sees no reason to question the view that, over the
period during which the United States embargo was in effect, petroleum
products were reaching the United States, in considerable quantities, that
were derived in part from Iranian crude oil. Executive Order 12613 con-
tained an exception (Section 2 (b)) whereby the embargo was not to
apply to “petroleum products refined from Iranian crude oil in a third
country”. It could reasonably be argued that, had the platforms not been
attacked, some of the oil that they would have produced would have been

49
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included in the consignments processed in Western Europe so as to pro-
duce the petroleum products reaching the United States. Whether, accord-
ing to international trade law criteria, such as the “substantial transfor-
mation” principle, or the “value added approach”, the final product
could still retain for some purposes an Iranian character, is not the ques-
tion before the Court. What the Court has to determine is not whether
something that could be designated “Iranian” oil entered the United
States, in some form, during the currency of the embargo; it is whether
there was “commerce” in oil between the territories of Iran and the
United States during that time, within the meaning given to that term in
the 1955 Treaty.

97. In this respect, what seems to the Court to be determinative is the
nature of the successive commercial transactions relating to the oil,
rather than the successive technical processes that it underwent. What
Iran regards as “indirect” commerce in oil between itself and the United
States involved a series of commercial transactions: a sale by Iran of
crude oil to a customer in Western Europe, or some third country other
than the United States; possibly a series of intermediate transactions;
and ultimately the sale of petroleum products to a customer in the United
States. This is not “commerce” between Iran and the United States, but
commerce between Iran and an intermediate purchaser; and “commerce”
between an intermediate seller and the United States. After the comple-
tion of the first contract Iran had no ongoing financial interest in, or legal
responsibility for, the goods transferred. If, for example, the process of
“indirect commerce” in Iranian oil through Western European refineries,
as described above, were interfered with at some stage subsequent to
Iran’s having parted with a consignment, Iran’s commitment and entitle-
ment to freedom of commerce vis-a-vis the United States could not be
regarded as having been violated.

*

98. The Court thus concludes, with regard to the attack of 19 October
1987 on the Reshadat platforms, that there was at the time of those
attacks no commerce between the territories of Iran and the United
States in respect of oil produced by those platforms and the Resalat plat-
forms, inasmuch as the platforms were under repair and inoperative; and
that the attacks cannot therefore be said to have infringed the freedom of
commerce in oil between the territories of the High Contracting Parties
protected by Article X, paragraph 1, of the 1955 Treaty, particularly
taking into account the date of entry into force of the embargo effected
by Executive Order 12613. The Court notes further that, at the time of
the attacks of 18 April 1988 on the Salman and Nasr platforms, all com-
merce in crude oil between the territories of Iran and the United States
had been suspended by that Executive Order, so that those attacks also
cannot be said to have infringed the rights of Iran under Article X, para-
graph 1, of the 1955 Treaty.

50
208 OIL PLATFORMS (JUDGMENT)

99. The Court is therefore unable to uphold the submissions of Iran,
that in carrying out those attacks the United States breached its obliga-
tions to Iran under Article X, paragraph 1, of the 1955 Treaty. In view of
this conclusion, the Iranian claim for reparation cannot be upheld.

* Ok

100. In view of the Court’s finding, on the claim of Iran, that the
attacks on the oil platforms did not infringe the rights of Iran under
Article X, paragraph 1, of the 1955 Treaty, it becomes unnecessary
for the Court to examine the argument of the United States (referred to
in paragraphs 27-30 above) that Iran might be debarred from relief on
its claim by reason of its own conduct.

x * %

101. On 23 June 1997, within the time-limit fixed for the Counter-
Memorial, the United States filed a counter-claim, in its Counter-
Memorial, against Iran. It explains that its “counter-claim is based on
actions by Iran in the Persian Gulf during 1987-88 that created extremely
dangerous conditions for shipping, and thereby violated Article X of
the 1955 Treaty”. In the submissions in that pleading (see paragraph 19
above) the United States requests that the Court adjudge and declare:

“1. That in attacking vessels, laying mines in the Gulf and otherwise
engaging in military actions in 1987-88 that were dangerous and
detrimental to maritime commerce, the Islamic Republic of Iran
breached its obligations to the United States under Article X of
the 1955 Treaty, and

2. That the Islamic Republic of Iran is accordingly under an obli-
gation to make full reparation to the United States for violating
the 1955 Treaty in a form and amount to be determined by the
Court at a subsequent stage of the proceedings.”

These submissions were later modified, as explained below.

102. By an Order of 10 March 1998 the Court found that the alleged
attacks on shipping, laying of mines, and other military actions by Iran
were facts capable of falling within the scope of Article X, paragraph 1,
of the 1955 Treaty, that the Court had jurisdiction to entertain the
United States counter-claim in so far as the facts alleged may have preju-
diced the freedoms guaranteed by Article X, paragraph 1 (.C.J. Reports
1998, p. 204, para. 36), and that it emerged from the Parties’ submissions
that their claims rest on facts of the same nature and form part of the
same factual complex, and that the Parties pursue the same legal aim

51
209 OIL PLATFORMS (JUDGMENT)

U.C.J. Reports 1998, p. 205, para. 38); consequently, considering that
the counter-claim presented by the United States was directly connected
with the subject-matter of the claim of Iran (ibid., p. 205, para. 39), the
Court found “that the counter-claim presented by the United States in
its Counter-Memorial is admissible as such and forms part of the
current proceedings” (ibid., p. 206, para. 46).

103. Iran maintains that the Court’s Order of 10 March 1998 did not
decide all of the preliminary issues involved in the counter-claim pre-
sented by the United States. Iran points out that, in that Order, the
Court only ruled on the admissibility of the United States counter-claim
in relation to Article 80 of the Rules of Court, declaring it admissible “as
such”, whilst reserving the subsequent procedure for further decision.

Iran contends that the Court should not deal with the merits of the
counter-claim because:

(a) the counter-claim was presented without any prior negotiation, in
disregard of the provisions of Article XXI, paragraph 2, of the 1955
Treaty;

(b) the United States has no title to submit a claim on behalf of third
States or of foreign entities;

(c) the United States counter-claim extends beyond Article X, para-
graph 1, of the 1955 Treaty, the only provision over which the Court
has jurisdiction; and the Court cannot uphold any submissions
falling outside the terms of paragraph 1 of Article X;

(d) the Court has jurisdiction only as far as freedom of commerce as
protected under Article X, paragraph 1, is concerned but not on
counter-claims alleging a violation of freedom of navigation as pro-
tected by the same paragraph;

(e) the United States cannot broaden the actual subject-matter of its
claim beyond the submissions set out in its Counter-Memorial.

104. The United States contends that the Order of 10 March 1998
settled definitively in its favour all such issues of jurisdiction and admis-
sibility as might arise.

The Court notes however that the United States is adopting an attitude
different from its position in 1998. At that time, while Iran was asking
the Court to rule generally on its jurisdiction and on the admissibility of
the counter-claim, the United States was basing itself solely on Article 80.
It argued in particular that:

“Many of Iran’s objections to jurisdiction and admissibility involve
contested matters of fact which the Court cannot effectively address
and decide at this stage, particularly not in the context of the abbre-

52
210 OIL PLATFORMS (JUDGMENT)

viated procedures of Article 80 (3).” (Cited in 1. C.J. Reports 1998,
p. 200, para. 22.)

105. The Court considers that it is open to Iran at this stage of the
proceedings to raise objections to the jurisdiction of the Court to enter-
tain the counter-claim or to its admissibility, other than those addressed
by the Order of 10 March 1998. When in that Order the Court ruled on
the “admissibility” of the counter-claim, the task of the Court at that
stage was only to verify whether or not the requirements laid down by
Article 80 of the Rules of Court were satisfied, namely, that there was
a direct connection of the counter-claim with the subject-matter of the
Iranian claims, and that, to the extent indicated in paragraph 102 above,
the counter-claim fell within the jurisdiction of the Court. The Order of
10 March 1998 therefore does not address any other question relating to
jurisdiction and admissibility, not directly linked to Article 80 of the
Rules. This is clear from the terms of the Order, by which the Court
found that the counter-claim was admissible “as such”; and in para-
graph 41 of the Order the Court further stated that: “a decision given on
the admissibility of a counter-claim taking account of the requirements
set out in Article 80 of the Rules in no way prejudges any question which
the Court will be called upon to hear during the remainder of the pro-
ceedings” (ibid., p. 205, para. 41). The Court will therefore proceed to
address the objections now presented by Iran to its jurisdiction to enter-
tain the counter-claim and to the admissibility thereof.

106. Iran maintains first that the Court cannot entertain the counter-
claim of the United States because it was presented without any prior
negotiation, and thus does not relate to a dispute “not satisfactorily
adjusted by diplomacy” as contemplated by Article XXI, paragraph 2, of
the 1955 Treaty, which reads as follows:

“Any dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International Court
of Justice, unless the High Contracting Parties agree to settlement by
some other pacific means.”

107. The Court cannot uphold this objection of Iran. It is established
that a dispute has arisen between Iran and the United States over the
issues raised in the counter-claim. The Court has to take note that the
dispute has not been satisfactorily adjusted by diplomacy. Whether the
fact that diplomatic negotiations have not been pursued is to be regarded
as attributable to the conduct of the one Party or the other is irrelevant
for present purposes, as is the question whether it is the Applicant or the
Respondent that has asserted a fin de non-recevoir on this ground. As in
previous cases involving virtually identical treaty provisions (see United

53
211 OIL PLATFORMS (JUDGMENT)

States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980,
pp. 26-28; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), I. C.J. Reports 1984, pp. 427-
429), it is sufficient for the Court to satisfy itself that the dispute was not
satisfactorily adjusted by diplomacy before being submitted to the Court.

108. According to the second objection of Iran, the United States is in
effect submitting a claim on behalf of third States or of foreign entities,
and has no title to do so. Reference has been made in the United States
argument on the counter-claim to incidents involving vessels flying the
flags of the Bahamas, Panama, the United Kingdom and Liberia; Iran
contends that the United States is thus claiming to defend the interests of
these States, which are not parties to the present proceedings.

109. The Court recalls that the first submission presented by the
United States in regard to its counter-claim simply requests the Court to
adjudge and declare that the alleged actions of Iran breached its obliga-
tions to the United States, without mention of any third States. Accord-
ingly, the Court will strictly limit itself to consideration of whether the
alleged actions by Iran infringed freedoms guaranteed to the United
States under Article X, paragraph 1, of the 1955 Treaty. The objection of
Iran is thus as such devoid of any object and the Court cannot therefore
uphold it.

110. In its third objection, Iran contends that the United States
counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty,
the only text in respect of which the Court has jurisdiction, and that the
Court cannot therefore uphold any submissions falling outside the terms
of paragraph 1 of that Article.

111. The Court notes that, while in its Rejoinder the United States
requested the Court to adjudge and declare

“that, in attacking vessels in the Gulf with mines and missiles and
otherwise engaging in military actions that were dangerous and
detrimental to maritime commerce, the Islamic Republic of Iran
breached its obligations to the United States under Article X of the
1955 Treaty” (emphasis added),

in its final submissions (see paragraph 20 above) the United States
substantially narrowed the basis of its counter-claim, when it requested
the Court to adjudge and declare

“Rejecting all submissions to the contrary, that, in attacking
vessels in the Gulf with mines and missiles and otherwise engaging
in military actions that were dangerous and detrimental to commerce
and navigation between the territories of the United States and the
Islamic Republic of Iran, the Islamic Republic of Iran breached its
obligations to the United States under Article X, paragraph 1, of the
1955 Treaty.” (Emphasis added.)

54
212 OIL PLATFORMS (JUDGMENT)

The United States, in presenting its final submissions on the counter-
claim, thus no longer relies on Article X of the 1955 Treaty as a whole,
but on paragraph 1 of that Article only, and, furthermore, recognizes the
territorial limitation of Article X, paragraph 1, referring specifically to
the military actions that were allegedly “dangerous and detrimental to
commerce and navigation between the territories of the United States and
the Islamic Republic of Iran” (emphasis added) rather than, generally, to
“military actions that were dangerous and detrimental to maritime com-
merce”.

By limiting the scope of its counter-claim in its final submissions, the
United States has deprived Iran’s third objection of any object, and the
Court cannot therefore uphold it.

112. In its fourth objection Iran maintains that

“the Court has jurisdiction to rule only on counter-claims alleging
a violation by Iran of freedom of commerce as protected under
Article X (1), and not on counter-claims alleging a violation of free-
dom of navigation as protected by the same paragraph”.

Iran concludes that

“since an alleged violation of ‘freedom of commerce’ as protected
under Article X (1) constitutes the only possible basis for the Court’s
jurisdiction in the present case, no alleged violation of freedom of
navigation or of any other provision of the Treaty of Amity can be
entertained by the Court in the context of the counter-claim”.

113. It seems, nevertheless, that Iran changed its position and recog-
nized that the counter-claim could be founded on a violation of freedom
of navigation. For example, it stated:

“Article X, paragraph 1, refers to ‘freedom of commerce and navi-
gation’. It appears that these are distinct freedoms, and in your
Order of 1998 you referred to them in the plural . . . Thus there
could be navigation between the territories of the High Contracting
Parties without any commerce between those territories, even if there
could not be navigation without any boat!”

114. The Court, in its Order of 10 March 1998, stated that

“Whereas the counter-claim presented by the United States alleges
attacks on shipping, the laying of mines, and other military actions
said to be ‘dangerous and detrimental to maritime commerce’;
whereas such facts are capable of falling within the scope of
Article X, paragraph 1, of the 1955 Treaty as interpreted by the

33
213 OIL PLATFORMS (JUDGMENT)

Court; and whereas the Court has jurisdiction to entertain the United
States counter-claim in so far as the facts alieged may have preju-
diced the freedoms guaranteed by Article X, paragraph 1.” (ZC.J.
Reports 1998, p. 204, para. 36.)

115. Article X, paragraph 1, envisages both freedoms, freedom of
commerce and freedom of navigation, as argued by the United States and
accepted by Iran during the oral hearings. As regards the claim of Iran, it
is true that the Court has found that only freedom of commerce is in
issue (paragraph 80 above). However, the Court also concluded in 1998
that it had jurisdiction to entertain the United States counter-claim in so
far as the facts alleged may have prejudiced the freedoms (in the plural)
guaranteed by Article X, paragraph 1, of the 1955 Treaty, i.e., freedom of
commerce and freedom of navigation. This objection of Iran thus cannot
be upheld by the Court.

116. Iran presents one final argument against the admissibility of the
United States counter-claim, which however it concedes relates only to
part of the counter-claim. Iran contends that the United States has
broadened the subject-matter of its claim beyond the submissions set out
in its counter-claim by having, belatedly, added complaints relating to
freedom of navigation to its complaints relating to freedom of commerce,
and by having added new examples of breaches of freedom of maritime
commerce in its Rejoinder in addition to the incidents already referred to
in the counter-claim presented with the Counter-Memorial.

117. The issue raised by Iran is whether the United States is presenting
a new claim. The Court is thus faced with identifying what is “a new
claim” and what is merely “additional evidence relating to the original
claim”. It is well established in the Court’s jurisprudence that the parties
to a case cannot in the course of proceedings “transform the dispute
brought before the Court into a dispute that would be of a different
nature” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Pre-
liminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 63). In
other words:

“the liberty accorded to the parties to amend their submissions up
to the end of the oral proceedings must be construed reasonably
and without infringing the terms of Article 40 of the Statute and
Article 32, paragraph 2, of the [1936] Rules which provide that the
Application must indicate the subject of the dispute” (Société com-
merciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78,
p. 173).

A fortiori, the same applies to the case of counter-claims, having regard
to the provisions of Article 80 of the Rules of Court, and in particular

56
214 OIL PLATFORMS (JUDGMENT)

taking into account the fact that it is on the basis of the counter-claim as
originally submitted that the Court determines whether it is “directly
connected with the subject-matter of the claim”, and as such admissible
under that text.

If it is the case, as contended by Iran, that the Court has before it
something that “constitutes . . . a new claim, [so that] the subject of the
dispute originally submitted to the Court would be transformed if it
entertained that claim” (Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, I.C.J. Reports 1992, p. 267, para. 70),
then the Court will be bound to dismiss such new claim.

118. The Court has noted in its Order of 10 March 1998 in the present
case that the counter-claim alleged “attacks on shipping, the laying of
mines, and other military actions said to be ‘dangerous and detrimental
to maritime commerce’” (J.C.J. Reports 1998, p. 204, para. 36). The
Court concluded that the counter-claim was admissible in so far as “the
facts alleged may have prejudiced the freedoms guaranteed by Article X,
paragraph 1” (ibid. ).

Subsequently to its Counter-Memorial and counter-claim and to that
Order of the Court, the United States provided detailed particulars of
further incidents substantiating, in its contention, its original claims. In
the view of the Court, the United States has not, by doing so, trans-
formed the subject of the dispute originally submitted to the Court, nor
has it modified the substance of its counter-claim, which remains the
same, i.e., alleged attacks by Iran on shipping, laying of mines and other
military actions said to be “dangerous and detrimental to maritime com-
merce”, thus breaching Iran’s obligations to the United States under
Article X, paragraph 1, of the 1995 Treaty.

The Court therefore cannot uphold the objection of Iran.

119. Having disposed of all objections of Iran to its jurisdiction over
the counter-claim, and to the admissibility thereof, the Court has now to
consider the counter-claim on its merits. To succeed on its counter-claim,
the United States must show that:

(a) its freedom of commerce or freedom of navigation between the
territories of the High Contracting Parties to the 1955 Treaty was
impaired; and that

(6) the acts which allegedly impaired one or both of those freedoms are
attributable to Iran.

The Court would recall that Article X, paragraph 1, of the 1955 Treaty
does not protect, as between the Parties, freedom of commerce or free-
dom of navigation in general. As already noted above (paragraph 90), the
provision of that paragraph contains an important territorial limitation.
In order to enjoy the protection provided by that text, the commerce or
the navigation is to be between the territories of the United States and

57
215 OIL PLATFORMS (JUDGMENT)

Iran. The United States bears the burden of proof that the vessels which
were attacked were engaged in commerce or navigation between the ter-
ritories of the United States and Iran.

120. The Court will thus examine each of Iran’s alleged attacks, in
chronological order, from the standpoint of this requirement of the 1955
Treaty:

(a) 24 July 1987: A mine attack on the United States-reflagged steam
tanker Bridgeton (see paragraph 63 above) in an international
shipping channel approximately 18 nautical miles south-west
of the Iranian island of Farsi, while en route from Rotterdam,
Netherlands, via Fujairah Anchorage, United Arab Emirates, to
Mina al-Ahmadi, Kuwait. The Court notes that the ship was
not engaged in commerce or navigation between the territories of
the two High Contracting Parties.

(b) 10 August 1987: A mine attack on the United States bareboat-
chartered, Panamanian-flagged, Texaco Caribbean (see paragraph 63
above), at the Khor Fakkan anchorage off Fujairah, which was laden
with a cargo of Iranian light crude being carried from Larak Island
Terminal, Iran, to Rotterdam, Netherlands. The Court notes that
Iran conceded that the Texaco Caribbean was engaged in commerce
between the territories of the two States; but this was in the context
of its contention, in relation to its own claim, that the term “com-
merce” covers “indirect commerce” as well. It therefore requested
the Court to dismiss the United States claim concerning this ship on
different grounds, namely that the mine incident was not attribu-
table to Iran, and that the United States suffered no loss since the
ship was a Panamanian-owned vessel carrying a Norwegian-owned
cargo. The United States argued, in relation to the claim of Iran,
against such a broad interpretation of the term “commerce” in
Article X, paragraph 1, of the 1955 Treaty and also adduced evidence
that the cargo was owned by a United States corporation. Since the
Court has concluded that the process of “indirect commerce” in
Iranian oil through Western European refineries does not represent
“commerce between the territories of the two High Contracting
Parties” for the purposes of Article X, paragraph 1, of the 1955
Treaty (see paragraph 97 above), and taking account of the fact that
the destination was not a United States port, the Court concludes
that the vessel was not engaged in commerce or navigation between
Iran and the United States.

(c) 15 August 1987: A mine attack on the United Arab Emirates flag
supply vessel Anita in the vicinity of Khor Fakkan anchorage off
Fujairah while proceeding to supply the vessels in the anchorage.
The Court notes that the ship was not engaged in commerce or

58
216

(d)

(e)

(f)

(g)

(h)

(i)

59

OIL PLATFORMS (JUDGMENT)

navigation between the territories of the two High Contracting
Parties.

15 October 1987: A missile attack on the United States-owned,
Liberian-flagged Sungari, while at anchor 10 miles off Mina al-
Ahmadi Sea Island Terminal, Kuwait. The Court notes that the
ship was not engaged in commerce or navigation between the terri-
tories of the two High Contracting Parties.

16 October 1987: A missile attack on the United States-reflagged
Sea Isle City (see paragraph 52 above), which was proceeding from
its anchorage to the oil loading terminal at Kuwait’s Mina al-
Ahmadi Terminal. The Court notes that the ship was not engaged
in commerce or navigation between the territories of the two High
Contracting Parties.

15 November 1987: A gunboat attack on the United States-owned,
Liberian-flagged, motor tanker Lucy, near the Strait of Hormuz, off
Al Khassat, northern Oman, en route to Ras Tanura, Saudi Arabia,
from Oita, Japan. The Court notes that the ship was not engaged in
commerce or navigation between the territories of the two High
Contracting Parties.

16 November 1987: A gunboat attack on the United States-owned,
Bahamian-flagged, steam tanker Esso Freeport en route from Ras
Tanura, Saudi Arabia, to the Louisiana Offshore Oil Pipeline Ter-
minal, United States. The Court notes that the ship was not engaged
in commerce or navigation between the territories of the two High
Contracting Parties.

7 February 1988: A frigate attack on the United States-owned,
Liberian-flagged, motor tanker Diana, while loaded with crude oil
from Ras Tanura, Saudi Arabia, en route from Bahrain and the
United Arab Emirates to Japan. The Court notes that the ship was
not engaged in commerce or navigation between the territories of
the two High Contracting Parties.

14 April 1988: A mine attack on the USS Samuel B. Roberts
(United States warship) near the Shah Allum Shoal, while returning
to Bahrain after escorting a convoy of United States-flagged vessels.
As a warship, the USS Samuel B. Roberts does not enjoy the protec-
tion of freedom of navigation guaranteed by Article X, paragraph 1,
of the 1955 Treaty. Paragraph 6 of that Article states that “The term
‘vessels’, as used herein . . . does not, except with reference to para-
graphs 2 and 5 of the present Article, include . . . vessels of war.”
The United States is nevertheless contending that since the USS
Samuel B. Roberts was escorting commercial vessels, it enjoys the
protection by the 1955 Treaty of freedom of commerce. However, at
all events, these vessels were neither navigating nor engaged in com-
merce between Iran and the United States. Consequently, the United
217 OIL PLATFORMS (JUDGMENT)

States has not shown a breach of Article X, paragraph 1, of the
1955 Treaty in relation to the incident involving the USS Samuel B.
Roberts.

(j) 11 June 1988: Speedboat attacks on the United States-owned,
British-flagged, steam tanker Esso Demetia, loaded at Umm Said
and Ras Tanura, Saudi Arabia, en route to Halul Island, Qatar, to
complete loading for a planned discharge in Singapore. The Court
notes that the ship was not engaged in commerce or navigation
between the territories of the two High Contracting Parties.

121. None of the vessels described by the United States as being
damaged by Iran’s alleged attacks was engaged in commerce or navigation
“between the territories of the two High Contracting Parties”. Therefore,
the Court concludes that there has been no breach of Article X, para-
graph 1, of the 1955 Treaty in any of the specific incidents involving these
ships referred to in the United States pleadings.

122. The United States has also presented its claim in a generic sense.
It has asserted that as a result of the cumulation of attacks on United
States and other vessels, laying mines and otherwise engaging in military
actions in the Persian Gulf, Iran made the Gulf unsafe, and thus breached
its obligation with respect to freedom of commerce and freedom of navi-
gation which the United States should have enjoyed under Article X,
paragraph 1, of the 1955 Treaty.

123. The Court cannot disregard the factual context of the case, as
described in paragraphs 23 and 44 above. While it is a matter of public
record that as a result of the Iran-Iraq war navigation in the Persian Gulf
involved much higher risks, that alone is not sufficient for the Court to
decide that Article X, paragraph 1, of the 1955 Treaty was breached by
Iran. It is for the United States to show that there was an actual impedi-
ment to commerce or navigation between the territories of the two High
Contracting Parties. However, according to the material before the Court
the commerce and navigation between Iran and the United States con-
tinued during the war until the issuance of the United States embargo on
29 October 1987, and subsequently at least to the extent permitted by the
exceptions to the embargo. The United States has not demonstrated that
the alleged acts of Iran actually infringed the freedom of commerce or of
navigation between the territories of the United States and Iran.

The Court considers that, in the circumstances of this case, a generic
claim of breach of Article X, paragraph 1, of the 1955 Treaty cannot be
made out independently of the specific incidents whereby, it is alleged,
the actions of Iran made the Persian Gulf unsafe for commerce and navi-
gation, and specifically for commerce and navigation between the terri-
tories of the parties. However, the examination in paragraph 120 above
of those incidents shows that none of them individually involved any

60
218 OIL PLATFORMS (JUDGMENT)

interference with the commerce and navigation protected by the 1955
Treaty; accordingly the generic claim of the United States cannot be
upheld.

Prod, The Court has thus found that the counter-claim of the United
States concerning breach by Iran of its obligations to the United States
under Article X, paragraph 1, of the 1955 Treaty, whether based on the
specific incidents listed, or as a generic claim, must be rejected; there is
therefore no need for it to consider, under this head, the contested issues
of attribution of those incidents to Iran. In view of the foregoing, the
United States claim for reparation cannot be upheld.

125. For these reasons,

THE COURT,
(1) By fourteen votes to two,

Finds that the actions of the United States of America against Iranian
oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as
measures necessary to protect the essential security interests of the United
States of America under Article XX, paragraph 1 (d), of the 1955 Treaty
of Amity, Economic Relations and Consular Rights between the United
States of America and Iran, as interpreted in the light of international
law on the use of force; finds further that the Court cannot however
uphold the submission of the Islamic Republic of Iran that those actions
constitute a breach of the obligations of the United States of America
under Article X, paragraph 1, of that Treaty, regarding freedom of com-
merce between the territories of the parties, and that, accordingly, the
claim of the Islamic Republic of Iran for reparation also cannot be
upheld;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Buergenthal, Owada, Simma, Tomka; Judge ad hoc Rigaux;

AGAINST: Judges Al-Khasawneh, Elaraby;
(2) By fifteen votes to one,

Finds that the counter-claim of the United States of America concern-
ing the breach of the obligations of the Islamic Republic of Iran under
Article X, paragraph 1, of the above-mentioned 1955 Treaty, regarding
freedom of commerce and navigation between the territories of the
parties, cannot be upheld; and accordingly that the counter-claim of the
United States of America for reparation also cannot be upheld.

61
219 OIL PLATFORMS (JUDGMENT)

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc
Rigaux ;

AGAINST: Judge Simma.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this sixth day of November, two thousand
and three, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of the Islamic
Republic of Iran and the Government of the United States of America,

respectively.

(Signed) Sui Jiuyong,
President.

(Signed) Philippe COUVREUR,
Registrar.

Vice-President RANJEVA and Judge KoroMA append declarations to
the Judgment of the Court; Judges HIGGINS, PARRA-ARANGUREN and
KOOIJMANS append separate opinions to the Judgment of the Court;
Judge AL-KHASAWNEH appends a dissenting opinion to the Judgment of
the Court; Judge BUERGENTHAL appends a separate opinion to the Judg-
ment of the Court; Judge ELARABY appends a dissenting opinion to the
Judgment of the Court; Judges OwWADA and SimmMa and Judge ad hoc
RIGAUX append separate opinions to the Judgment of the Court.

(Initialled) J.Y.S.
(Initialled) Ph.C.

62