37

DISSENTING OPINION OF JUDGE PADILLA NERVO

1 am unable to concur in the Order of the Court, and therefore I voted
against its adoption.

In my view, the Court should not have indicated measures of protec-
tion. Notwithstanding contrary opinion, the special features of this case
do not justify such measures against a State which denies the jurisdiction
of the Court, which is not a party to these proceedings and whose rights
as a sovereign State are thereby interfered with.

The claim of the Republic of Iceland to extend its fisheries jurisdiction
to a zone of 50 nautical miles around Iceland, has not been proved to be
contrary to international law.

The question regarding the jurisdiction of the Court has not been fully
explored. It relies mainly as a source of its jurisdiction on the Exchange of
Notes of 19 July 1961, an agreement which the Republic of Iceland con-
tends has fully achieved its purpose and object, and the provisions of
which it considers no longer to be applicable and, consequently, termina-
ted.

The Minister for Foreign Affairs of Iceland sent to the Registrar on
27 June 1972 a letter regarding the filing on 5 June 1972 of an Application
by the Government of the Federal Republic of Germany, instituting
proceedings against Iceland.

With that letter were sent several documents dealing with the back-
ground and termination of the Agreement of 19 July 1961, and “with
the changed circumstances resulting from the ever-increasing exploitation
of the fishery resources in the seas surrounding Iceland”.

The letter refers to the dispute with the Federal Republic, which op-
posed the 12-mile fishery limit established by the Icelandic Government
in 1958, and to the 1961 Exchange of Notes.

Iceland states that “the 1961 Exchange of Notes took place under
extremely difficult circumstances”.

Paragraph 5 of the Application by the Federal Republic instituting
proceedings refers to

“incidents involving, on the one hand, Icelandic coastguard vessels
and, on the other hand, British fishing vessels and fisheries protection
vessels of the Royal Navy of the United Kingdom”.

It appears from the above-quoted statements, that such circumstances
were not the most appropriate to negotiate and conclude the 1961 Agree-
ment.

Il
38

FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

The Foreign Minister of Iceland further indicates:

ga

“The agreement by which that dispute was settled, and conse-
quently the possibility of such recourse to the Court (to which the
Government of Iceland was consistently opposed as far as concerns
disputes over the extent of its exclusive fisheries jurisdiction),
was not of a permanent nature. In particular, an undertaking for
Judicial settlement cannot be considered to be of a permanent nature.
There is nothing in that situation, or in any general rule of contem-
porary international law, to justify any other view.

After the termination of the agreement recorded in the Exchange
of Notes of 1961, there was on 5 June 1972 no basis under the Statute
for the Court to exercise jurisdiction in the case to which the Govern-
ment of the Federal Republic refers.

The Government of Iceland, considering that the vital interests of
the people of Iceland are involved, respectfully informs the Court
that it is not willing to confer jurisdiction on the Court in any case
involving the extent of the fishery limits of Iceland, and specifically
in the case sought to be instituted by the Government of the Federal
Republic of Germany on 5 June 1972.”

In the Anglo-Iranian Oil Co. case, Judges Winiarski and Badawi Pasha
ve the following reasons for their dissenting opinion which, in my view,

are applicable and valid in the present case:

“The question of interim measures of protection is linked, for the
Court, with the question of jurisdiction; the Court has power to
indicate such measures only if it holds, should it be only provisionally,
that it is competent to hear the case on its merits.” (.C./. Reports
1951, p. 96.)

“In international law it is the consent of the parties which confers
jurisdiction on the Court; the Court has jurisdiction only in so far
as that jurisdiction has been accepted by the parties. The power
given to the Court by Article 41 is not unconditional; it is given for
the purposes of the proceedings and is limited to those proceedings.
If there is no jurisdiction as to the merits, there can be no jurisdic-
tion to indicate interim measures of protection. Measures of this
kind in international law are exceptional in character to an even
greater extent than they are in municipal law; they may easily be
considered a scarcely tolerable interference in the affairs of a sover-
eign State.” (/bid., p. 97.)

“We find it difficult to accept the view that if-prima facie the total
lack of jurisdiction of the Court is not patent, that is, if there is a
possibility, however remote, that the Court may be competent, then
it may indicate interim measures of protection. This approach, which
also involves an element of judgment, and which does not reserve to
any greater extent the right of the Court to give a final decision as to
39 HISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

its jurisdiction, appears however to be based on a presumption in
favour of the competence of the Court which is not in consonance
with the principles of international law. In order to accord with these
principles, the position should be reversed: if there exist weighty
arguments in favour of the challenged jurisdiction, the Court may
indicate interim measures of protection; if there exist serious doubts
or weighty arguments against this Jurisdiction such measures cannot
be indicated.” (/hid., p. 97.)

In my opinion such doubts do exist in the present case.

The Exchange of Notes on which the Application founds the jurisdic-
tion of the Court, dated 19 July 1961, makes reference to the Resolution
of the Parliament of Iceland of 5 May 1959, which declared that a recog-
nition of the rights of Iceland to fisheries limits extending fo the whole
continental shelf “should be sought”.

In the Note of 19 July 1961 it is stated that: “The Icelandic Government
shall continue to work for the implementation of the Althing Resolution
of 5 May 1959, regarding the extension of the fishery jurisdiction of Ice-
land...”

The claim of Iceland that its continental shelf must be considered to be
a part of the country itself, has support in the Convention on this subject,
done at Geneva on 29 April 1958.

This Court, in its Judgment of 20 February 1969, stated:

‘... the most fundamental of all the rules of law relating to the conti-
nental shelf, enshrined in Article 2 of the 1958 Geneva Convention, ...
namely that the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso factoand ab initio, by virtue of
its sovereignty over the land, and as an extension of it in an exercise
of sovereign rights for the purpose of exploring the seabed and
exploiting its natural resources. In short, there is here an inherent
right. In order to exercise it, no special legal process has to be gone
through, nor have any special legal acts to be performed. Its existence
can be declared (and many States have done this) but does not need
to be constituted. Furthermore the right does not depend on its being
exercised. To echo the language of the Geneva Convention, it is
‘exclusive’ in the sense that if the coastal State does not choose to
explore or exploit the areas of shelf appertaining to it, that is its
own affair, but no one else may do so without its express consent.”
(.C.J. Reports 1969, p. 22, para. 19.)

The Government of Iceland in its information and documents sent
to the Court, has given well-founded reasons and explanations of tts
sovereign right to extend its fisheries jurisdiction to the entire continental
shelf area.

13
40 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

The coastal fisheries in Iceland have always been the foundation of the
country’s economy.

The coastal fisheries are the conditio sine qua non for the Icelandic
economy; without them the country would not have been habitable.

Iceland rests on a platform or continental shelf whose outlines follow
those of the country itself. In these shallow underwater terraces, ideal
conditions are found for spawning areas and nursery grounds upon whose
preservation and utilization the livelihood of the nation depends. It is
increasingly being recognized that coastal fisheries are based on the special
conditions prevailing in the coastal areas which provide the necessary
environment for the fishstocks. This environment is an integral part of the
natural resources of the coastal State.

The continental shelf is really the platform of the country and must be
considered to be a part of the country itself.

The vital interests of the Icelandic people are therefore at stake. They
must be protected.

The priority position of the coastal State has then always been recog-
nized through the system of fishery limits. In the past these limits have to
a great extent not been established with any regard to the interests of the
coastal State. They owe their origin rather to the preponderant influence
of distant water fishery nations, who wished to fish as close as possible to
the shores of other nations, frequently destroying one area and then pro-
ceeding to another.

In a system of progressive development of international law the ques-
tion of fishery limits has to be reconsidered in terms of the protection and
utilization of coastal resources regardless of other considerations which
apply to the extent of the territorial sea. The international community
has increasingly recognized that the coastal fishery resources are to be
considered as a part of the natural resources of the coastal State. The
special situation of countries who are overwhelmingly dependent on
coastal fisheries, was generally recognized at both Geneva Conferences in
1958 and 1960. Since then this view has found frequent expression both
in the legislation of various countries and in important political state-
ments. The course of events is decidedly progressing in this direction.

Reiterating the considerations which lead the Government of Iceland
to issue new regulations relating to exclusive fisheries jurisdiction in the
continental shelf area, it stated the following:

“In the aide-mémoire of 31 August, 1971, it was intimated that
in order to strengthen the measures of protection essential to safe-
guard the vital interests of the Icelandic People in the seas surroun-
ding its coasts, the Government of Iceland now finds it essential to
extend further the zone of exclusive fisheries jurisdiction around its
coasts to include the areas of sea covering the continental shelf.

14
4! FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

It was further stated that in the opinion of the Icelandic Government,
the object and purpose of the provisions in the 1961 Exchange of
Notes for recourse to judicial settlement in certain eventualities have
been fully achieved. The Government of Iceland, therefore, considers
the provisions of the Notes exchanged no longer to be applicable and
consequently terminated.” (Government of Iceland’s Aide-Mémoire
of 24 February 1972, Annex H to Application of the Federal Re-
public.)

“...In the period of ten years which has elapsed, the Government
of the Federal Republic enjoyed the benefit of the Icelandic Govern-
ment’s policy to the effect that further extension of the limits of
exclusive fisheries jurisdiction would be placed in abeyance for a
reasonable and equitable period. Continuation of that policy by the
Icelandic Government, in the light of intervening scientific and
economic evolution (including the ever greater threat of increased
diversion of highly developed fishing effort to the Icelandic area) has
become excessively onerous and unacceptable, and is harmful to the
maintenance of the resources of the sea on which the livelihood of
the Icelandic people depends.’ (Government of Iceland's Aide-
Mémoire of 31 August 1971, Annex D to Application of the Federal
Republic.)

In the request by the Government of the Federal Republic for the indi-
cation of interim measures of protection the grounds of the request are
stated at length.

It is stated therein that Iceland’s regulations to extend the limits of its
fisheries jurisdiction, if carried into effect for any substantial period,
would result in an immediate and irreparable damage to the fisheries of
the Federal Republic of Germany and the related industries, and that such
damage could not be remedied by the payment of an indemnization by
Iceland.

Another argument is that the distant water fishing vessels of the Federal
Republic of Germany cannot compensate the loss of their fishing grounds
off Iceland by directing their activities to other areas; the range of wet
fish trawlers is limited by technical and economic factors.

It is claimed that any intensification of fishing effort by vessels of the
Federal Republic diverted from the Iceland area would (among other
things) depress the profits of the traditional coastal fisheries in the nearer
fishing grounds of the fleet of the Federal Republic.

The request for interim measures states (para. 13):

“Tt can be concluded therefore that trawlers such as have been
fishing traditionally in the high seas around Iceland which are
equipped with expensive technical gear and which operate on high
42 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

costs, could not, if excluded from the high seas around Iceland, hope
to find other fishing grounds where they could continue their activi-
ties under comparable and economic conditions.”

Not only Iceland but many coastal States in all regions of the world
know by experience the harmful effects of the ever greater threat of highly
developed fishing effort near their shores, by foreign fishing fleets equip-
ped—tike the modern trawlers of the Federal Republic of Germany—with
expensive technical gear.

The arguments developed in the request for measures of protection and
in the oral hearing of 2 August 1972, appear, in my view, to have as their
real object the protection of the interests, financial or economic, of private
fishing enterprises rather than the ‘rights’ of the Federal Republic.

Furthermore, the existence of those rights cannot be taken for granted.
This matter belongs to the merits of the case, to be decided when the Court
deals with them.

The assertion that the indication or interim measures of protection
in no way prejudges the rights which the Court may subsequently adjudge
to belong either to the Applicant or to the Respondent, is an assertion
contradicted by the obvious implication that questionable rights are
presumed to exist by the mere fact of indicating measures intended to
protect them.

The measures indicated in the Order have the character of a preliminary
decision on the merits. The implementation of those measures will amount
to execution of such a preliminary decision. This fact cannot be denied
simply by asserting that such measures in no way prejudge the substance
of the case.

The claim of immediate and irreparable damage is based on the
assumption that the dispute on the merits or even the jurisdictional issue,
will not be settled by the Court for many years.

That is a wrong assumption and therefore the plea of a disruption of the
whole fishing industry will not have any force or weight if the Court,
as should be expected, does consider the matter of jurisdiction before the
end of this year.

The Applicant has invoked Article 53 of the Statute and calls upon the
Court to decide in favour of its claim.

According to paragraph 2 of that Article, the Court must, first of all,
satisfy itself that it has jurisdiction.

Relevant to the issue of jurisdiction is the provision in Article 61, para-
graph 1, of the Rules: ‘A request for the indication of interim measures
of protection may be filed at any time during the proceedings in the case
in connection with which it is made.”

The objective requirement ratione temporis for the exercise of this juris-
diction is, that the request is filed during the proceedings in the case.

16
43 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

“If it is clear on the face of the document instituting proceedings
that the jurisdiction of the Court to hear the case on its merits
requires some step on the part of the respondent State for its per-
fection, then, ... there will be no ‘proceedings’ and consequently no
inherent jurisdiction to indicate provisional measures, until that step
has been taken.” (Rosenne, The Law and Practice of the International
Court, Chap. X11, Incidental Jurisdiction, p. 424.)

The Government of Iceland, on 28 July 1972, acknowledged receipt
of a telegram from the Registrar of the Court concerning the request of
the Federal Republic of Germany. for interim measures, filed 21 July
1972. The message from the Government of Iceland states in part:

“there is no basis for the request to which your telegram refers.
In any event the Application of 5 June 1972 refers to the legal position
of the two States and not to the economic position of certain private
enterprises or other interests in one of those States ... Without pre-
judice to any of its previous arguments the Government of Iceland
objects specifically to the indication by the Court of provisional
measures under Article 41 of the Statute and Article 61 of the Rules
of the Court in the case to which the Government of the Federal
Republic refers, where no basis for jurisdiction is established.”
(Emphasis added.)

In the Exchange of Notes of 19 July 1961, the agreement already
envisaged the prospect that the Republic of Iceland would extend the
fisheries jurisdiction beyond the 12-mile limit.

If it is contrary to international law to envisage such extension, the
Federal Republic of Germany and the United Kingdom would not have
accepted the inclusion of such statement in the formal exchange of notes.

There is in such exchange of notes an implicit recognition of the right
of Iceland to extend its fisheries jurisdiction.

The Federal Republic, in view of its recognition of the exceptional
importance of coastal fisheries to the Icelandic economy, accepted the
proposals put forward by the Government of Iceland, among them, the
proposal contained in paragraph 5, which states that “‘the Government of
Iceland shall continue to work for the implementation of the Althing
Resolution of 5 May 1959 regarding the extension of the fishery jurisdic-
tion of Iceland”, which declares that a recognition of its rights to the
whole continental shelf should be sought, as provided in the Law con-
cerning the Scientific Conservation of the Continental Shelf Fisheries of
1948.

The Federal Republic did not object to the existence of such rights, it
accepted the proposal which contained as counterpart or consideration

17
44 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

the obligation of Iceland to give six months’ notice of any such extension.

If a dispute did arise in respect of such extension, it would not affect the
previous implicit recognition of Iceland’s right to extend its fisheries
jurisdiction.

The most essential asset of coastal States is to be found in the living
resources of the sea covering their continental shelf and in the fishing zone
contiguous to their territorial sea.

The progressive development of international law entails the recognition
of the concept of the patrimonial sea, which extends from the territorial
waters to a distance fixed by the coastal State concerned, in exercise of
its sovereign rights, for the purpose of protecting the resources on which
its economic development and the livelihood of its people depends.

This concept is not a new one. It has found expression ir declarations
by many governments proclaiming as their international maritime policy,
their sovereignty and exclusive fisheries jurisdiction over the sea con-
tiguous to their shores.

There are nine States which have adopted a distance of 200 nautical
miles from their shores as their exclusive fisheries jurisdiction. Some
of them have enacted and enforced regulations to that effect since 20
years ago, when the “Santiago Declaration” was signed by the Govern-
ments of Chile, Ecuador and Peru in August 1952.

My last observation is the following. The claim of irremediable damages
to the Applicant has not, in my opinion, been proved. They are only
allegations that the fishing enterprises would suffer financial losses and
also allegations that the eating habits of people in the countries concerned
will be disturbed. Such an argument cannot, in my opinion, be opposed
to the sovereign rights of Iceland over its exclusive jurisdiction and the
protection of the living resources of the sea covering its continental shelf.
The Order does not strike, in my view, a fair balance between the two
sides as required by the relevant article of the Statute. The restrictions
indicated in the Order are obviously against Iceland, interfering with
its unlimited right to legislate over its own territory as it considers it
essential (cf. para. 1, sub-para. (d), of the operative clause of the Court’s
Order). In the measures indicated in that Order the only substantial
restriction to the Applicant consists in limiting the amount of its annual
catch to 119,000 metric tons instead of its claim to 120,000 metric tons,
1,000 metric tons less than the Applicant had asked for in its request for
measures of protection. All the other measures of protection requested in
the Application the Court had accepted. On this aspect also 1 am not
able to agree with the indication of measures in the Order of the Court.

(Signed) Luis PADILLA NERVO.


217

SEPARATE OPINION OF JUDGE HIGGINS

I agree with the Court’s finding that the counter-claim presented by the
United States in its Counter-Memorial is admissible and now forms part
of the current proceedings.

There is, however, one point which the Court has not at all addressed,
while nevertheless apparently making a negative finding on it; and there
are two further points which it seems to hold over for the merits, when
arguably they should have been disposed of at this juncture.

As the present Order recalls, Iran instituted proceedings against the
United States claiming breaches by the latter of Article I, Article IV, para-
graph 1, and Article X, paragraph 1, of the Treaty of Amity of 1955. The
Court, having heard the preliminary objections to its jurisdiction of the
United States, in its Judgment of 12 December 1996 determined that it
had jurisdiction “to entertain the claims made by the Islamic Republic of
Iran under Article X, paragraph 1, of that Treaty”. It found it did not
have jurisdiction to entertain the claims under Article J and Article IV,
paragraph 1.

On 23 June 1997 the United States presented both a defence to
Iran’s Memorial and the counter-claim which is the subject of the
present Order. The United States contended that Iran, for its part, had
engaged in actions which violated Article X of the Treaty. In Section 1
of its counter-claim it based its application on Article X, paragraph 1,
of the Treaty. In Section 2 it based its application on “the remainder of
Article X” and went on to refer particularly to acts it alleged constituted
violations of Article X, paragraph 3. In its submissions the Court
was asked to adjudge and declare that Iran had breached its obligations
under Article X, generally.

In its reply to the Court’s invitation to present its views on Iran’s
observations on the counter-claims (see paragraph 9 of this Order), the
United States further referred at paragraph 39 to “paragraphs X (2)
through X (5)”. It both claimed violations of these provisions by refer-
ence to particular events and it objected that “Iran’s jurisdictional argu-
ments seek to force all of the US counter-claim into the confines of
Article X (1) of the 1955 Treaty”.

The Court’s Order makes no reference whatsoever to these exchanges
of the Parties save that it recalls in paragraph 26 that the United States
did indeed make claims under Article X, paragraphs 2 to 5. However,

31
218 OIL PLATFORMS (SEP. OP. HIGGINS)

although the dispositif in paragraph A, as is customary, merely finds that
the counter-claim is admissible, it seems from the text of the Order that
this is only in relation to Article X, paragraph 1. In paragraph 34 the
Court states that “its jurisdiction in the present case covers claims under
Article X, paragraph 1, of the 1955 Treaty”, the text of which it then
cites. In paragraph 36 it finds that the counter-claim falls

“within the scope of Article X, paragraph 1, of the 1955 Treaty as
interpreted by the Court; and whereas 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”.

It may thus be that while Article X, paragraph 1, is the sole basis of juris-
diction identified by the Court, paragraphs 2 to 6 still have relevance to
the task of ascertaining the freedoms guaranteed under paragraph 1.

In the first place, findings that reject the contentions of a party should
be based on reasons. The disturbing tendency to offer conclusions but
not reasons is not to be welcomed. In the second place, the inarticulate
assumption that the jurisdictional basis established for a claim necessarily
is the only jurisdictional basis for, and sets the limits to, a counter-claim,
is open to challenge.

In both civil and common law domestic systems, as in the Rules of the
Court, a defendant seeking to bring a counter-claim must show that the
Court has jurisdiction to pronounce upon them. But it is not essential
that the basis of jurisdiction in the claim and in the counter-claim be
identical. It is sufficient that there is jurisdiction. (Indeed, were it other-
wise, counter-claims in, for example, tort could never be brought, as they
routinely are, to actions initiated in contract.)

There is nothing in the Rules or practice of the Court to suggest that
the very identical jurisdictional nexus must be established by a counter-
claimant. The travaux préparatoires to the various formulations of what
is now Article 80 of the Rules of Court contain no suggestion whatever
that this was thought of as a requirement. The rule on counter-claims has
gone through successive changes. But neither in the discussions of 1922,
nor of 1934, 1935, 1936, nor again of 1946, 1968, 1970, 1972, does this
thought anywhere appear.

Attention was focused on the one hand on the required “connection”
and on the other on certain matters relating to jurisdiction, notably Gn
1922) whether counter-claims were limited to compulsory jurisdiction
cases and whether objections to counter-claim jurisdiction would be
allowed. At no stage was it even proposed, much less accepted, that the
jurisdictional basis for the claim and counter-claim must be identical.

32
219 OIL PLATFORMS (SEP. OP. HIGGINS)

Nor does the wording of Article 80, paragraph 1, suggest this. It requires
that a counter-claim “comes within the jurisdiction of the Court”, not
that it “was within the jurisdiction established by the Court in respect of
the claims of the applicant”.

Of course, the very requirement of a direct connection with the subject-
matter of the claim is likely to bring a counter-claimant into the same
general jurisdictional area, i.e., the same treaty may well form the basis of
the claimed jurisdiction for the bringing of a counter-claim. But that is
all.

The view of the Committee for the Revision of the Rules, when decid-
ing to retain the phrase “and that it comes within the jurisdiction of the
Court” from the old Rule, was that the phrase meant that a counter-
claimant could not introduce a matter which the Court would not have
had jurisdiction to deal with had it been the subject of an ordinary applica-
tion to the Court.

And that remains the position under Article 80 of the present Rules of
Court, which continues simply to require that a counter-claim “comes
within the jurisdiction of the Court”. The correct and necessary pro-
cedure in the present case would have been for the Court to enquire
whether it would have had jurisdiction to deal with the claims of the
United States, as they related to Article X, paragraphs 2 to 5, had they
“been the subject of an ordinary application to the Court”.

In its Judgment of 12 December 1996 (case concerning Oil Platforms
(Islamic Republic of Iran v. United States of America), Preliminary
Objection, I.C.J. Reports 1996, p. 803) the Court established the metho-
dology for doing this where there is contested jurisdiction under a
treaty. The test is whether the facts as claimed by the applicant might
give to a violation of a specified provision (whether the facts are in fact
correct, whether they do constitute a violation, and if there is a defence,
are then all matters for the merits). There is no reason why the Court
should not have engaged in this exercise in relation to the counter-claim
of the United States based on Article X, paragraphs 2 to 5, of the 1955
Treaty and thus to provide it with a reasoned response, one way or the
other.

Iran, too, seems not really to expect any eligible counter-claim to be
limited to matters falling under Article X, paragraph 1, of the Treaty of
Amity. Its document of 18 November 1997, entitled “Request for Hear-
ing in Relation to the United States Counter-Claim Pursuant to Ar-
ticle 80 (3) of the Rules of Court” is replete with arguments directed
towards showing that the specific counter-claims of the United States are
excluded by their facts from falling under Article X, paragraphs 3 to 5
(paras. 17, 19 (b), 19 (d), 19 fe), 19 (f), 21 and footnotes 21 and 24.)

33
220 OIL PLATFORMS (SEP. OP. HIGGINS)

Implicit in the Court’s unexplained reliance on Article X, paragraph 1,
as the apparent sole basis of jurisdiction is the thought that a counter-
claim can only arise out of an initial claim, and therefore cannot be on a
wider jurisdiction basis than the initial claim. But it is not a question of a
counter-claimant being able to “expand” the jurisdiction initially estab-
lished by the Court. The Court first establishes its jurisdiction by refer-
ence to the facts as alleged by the claimant. But that does not mean to say
that it might not have jurisdiction in relation to allegations brought by
the defendant under other clauses of the same treaty.

The Order which the Court issued on 17 December 1997 in respect of
the Genocide Convention case (also concerning treaty-based jurisdiction)
referred to the matter in the following terms:

“Whereas the Respondent cannot use a counter-claim as a means
of referring to an international court claims which exceed the limits
of its jurisdiction as recognized by the parties...” (Application of
the Convention on the Prevention and Punishment of the Crime of
Genocide, Counter-Claims, Order of 17 December 1997, LCJ.
Reports 1997, p. 257, para. 31; emphasis added).

What matters in a counter-claim is the jurisdiction mutually recognized
by the parties under the Treaty — not the jurisdiction established by the
Court in respect of particular facts initially alleged by the claimant. (It so
happens in the Genocide Convention that the identical basis of jurisdic-
tion was in issue for both parties, in relation to erga omnes obligations.)

The test in the Genocide Convention case of “jurisdiction as recognized
by the parties” will only be met when the Court decides whether Ar-
ticle X, paragraphs 2 to 5, on the facts alleged by the Defendant, might
sustain claims of violations by the Applicant. The Order, which is the
vehicle for dealing with preliminary matters in the counter-claim, should
have contained a reasoned decision on this point.

The matter may usefully be looked at in the following way. There
either is, or is not, jurisdiction to sustain claims, on the basis of the facts
alleged by the United States, in relation to Article X, paragraphs 2 to 5.
If an initial claim could have been brought claiming breaches of these
provisions, that cannot be taken away by virtue of the fact that the Court
has already established its jurisdiction, in respect of another provision
(Art. X, para. 1) in respect of claims articulated by Iran.

This would in effect revise treaty jurisdiction “as recognized by the

parties” through a judicial finding on jurisdiction relating to an initial
claimant under a particular provision.

34
221 OIL PLATFORMS (SEP. OP. HIGGINS)

If, arguendo, the treaty provisions of Article X, paragraphs 2 to 5,
would have founded jurisdiction in an initial claim then presumably the
United States could still bring a claim de novo even if it is not allowed to
do so as a counter-claim under the Court’s Order. Such a result is hardly
consistent with the stated purpose of counter-claims, namely, conven-
ience of court management. It underlines that what is required under
Article 80, paragraph 1, of the Rules is that a counter-claim “comes
within the jurisdiction of the Court” by reference to the normal juris-
dictional principles rather than by reference to the particular basis of
jurisdiction that the initial claimant happens to have relied on in relation
to its own particular facts.

* OK

If the United States might reasonably have expected a reasoned
response to its claim that the Court has jurisdiction under Article X, para-
graphs 2 to 5, as well as under Article X, paragraph 1, Iran might
reasonably have expected that, on the basis of equality of treatment,
this Order would have resolved two items on which it is in fact silent.

In the counter-claim the facts alleged concern destruction of vessels
rather than oil platforms. The issue of whether Article X, paragraph 1, is
restricted to commerce between the two Parties was fully canvassed as an
issue relevant to jurisdiction in the jurisdictional phase of this case. In the
event, the Court stated that it did “not have to enter into the question
whether [Article X, paragraph 1] is restricted to commerce ‘between’ the
Parties” as it was “not contested between them that oil exports from Iran
to the United States were — to some degree — ongoing” (Oil Platforms
(Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I.C.J. Reports 1996, pp. 817-818, para. 44). And in
the context of the counter-claim there is not agreement as to the existence
that all the vessels were engaged in commerce between the Parties. Iran
argues that in many of the incidents cited by the United States in its
counter-claim, the vessels “were not (even arguably) engaged in com-
merce or even navigation between the territories of the High Contracting
Parties” (Iranian Request, para. 21). It would seem that, in order to
determine whether it has jurisdiction in respect of claims relating to dam-
age to warships under Article X, paragraph 1, of the Treaty, the matter
which it was not necessary to decide in 1996 must now be decided in
1998. Iran has treated this question as going to jurisdiction and as rele-
vant to the conditions laid down in Article 80, paragraph 1, of the Rules
of Court.

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Parties to litigation should be treated in a comparable manner. But,
from the silence of the Court in the present Order, it seems that what it
saw as a jurisdictional question when determining United States prelimi-
nary objections to the main claim it treats as a matter for the merits when
considering Iran’s response to the counter-claim.

Second, Iran claims that those itemized vessels identified as warships
are excluded from the reach of Article X, paragraph 1, by the terms of
Article X, paragraph 2. This may or may not be correct in the particular
context. But the silence of the Order on this question — which Iran
clearly saw as relevant to the “direct connection” requirement in
Article 80, paragraph 1, of the Rules, and thus as preliminary -— means
that Iran will perforce have to answer on the merits all contentions of fact
and law relating to the claims concerning warships. The Court has not
applied the same procedures, in determining the scope of its jurisdiction
under the Treaty, to both of the Parties.

Undoubtedly, some of the difficulties stem from the terms of Article 80
itself. Paragraph 1 of Article 80 contains two requirements for counter-
claims to be admissible — that they have a direct connection with the
subject-matter of the claim and that they come within the jurisdiction of
the Court. Paragraph 3 of Article 80 provides that the Court shall hear
the parties “In the event of doubt as to the connection between the ques-
tion presented by way of counter-claim and the subject-matter of the
claim of the other party.” No provision is made to hear the parties in the
event of doubt as to whether the counter-claim comes within the jurisdic-
tion of the Court. It might be thought that this was perhaps deliberate,
and that the intention was that the Court would resolve any doubts as to
its jurisdiction only when it got to the merits. This would be a sort of
standing exception to Article 79, paragraph 6, of the Rules (or, put dif-
ferently, a counter-claim where jurisdiction is contested would always
and necessarily be treated as not having an exclusively preliminary char-
acter under Article 79, paragraph 7). In any event, the idea that “direct
connection” within the meaning of Article 80, paragraph 1, should be
disposed of as a preliminary matter, while the jurisdiction requirement in
Article 80, paragraph 1, should be dealt with on the merits finds no sup-
port at all in the travaux préparatoires of the various versions of the
Rules, including the present Rules. The failure of Article 80, paragraph 3,
to “match” Article 80, paragraph 1, seems to have been inadvertent and
there was no intention to distinguish between objections relating to “con-
nection” and those to “jurisdiction”.

What can be said is that the travaux do show that the Court has, since
1922, resolved to keep ample room for discretion in the handling of these

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223 OIL PLATFORMS (SEP. OP. HIGGINS)

matters, on a case-by-case basis. In the exercise of this discretion the
Court has determined that the reference in Article 80, paragraph 3, in
case of doubt as to “connection”, to the phrase “after hearing the
parties” may be taken in a particular case as the receipt of written
submissions!. Oral submissions are neither required by the terms of
Article 80, paragraph 3, nor excluded. Further, the Court has also
found sufficient freedom to decide, notwithstanding the apparently limit-
ing terminology of Article 80, paragraph 3, that the Parties may be
heard (whether in writing or orally) on the question of jurisdiction as well
as on the question of connection.

The exception allowed in Article 79, paragraph 7, whereby prelimi-
nary matters are not disposed of at the preliminary phase, is to be used
sparingly, lest the purpose underlying the 1978 alteration to that Article
be negated. Further, the tests applied to Iran to see if its claims came
under the 1955 Treaty should equally have been applied to the United
States (1e., to see, if on the facts alleged, a counter-claim could pos-
sibly lie under particular articles and clauses). The process by which
certain claims of Iran were found not to be within the jurisdiction of
the Court under the Treaty of Amity, and would thus not proceed to
the merits, should be equally applied to the counter-claims of the United
States to see whether or not they should advance in their entirety to the
merits.

There is much to be said for three judicial principles. First, judicial
conclusions should be justified by legal reasons. Second, matters going to
jurisdiction should, whenever possible, be disposed of before proceeding
to the merits. Third, parties to litigation are entitled to an equality of
treatment (see, for example, Barcelona Traction, Light and Power Com-
pany, Limited, Preliminary Objections, .C.J. Reports 1964, p. 25;
Request for an Examination of the Situation in Accordance with Para-
graph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case, Order of 22 September 1995,
LC.J. Reports 1995, p. 296).

(Signed) Rosalyn HiGains.

' This matter is raised in footnote 2 of Iran’s Request and in the declaration of Judge ad
hoc Kreéa and the separate opinion of Judge ad hoc Lauterpacht in the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Counter-Claims,
Order of 17 December 1997, . C.J. Reports 1997, pp. 262-271 and 278-286, respectively.

37