SEPARATE OPINION OF JUDGE RIGAUX

[Translation]

362

Asymmetry of the two Parties’ positions — Reasoning underlying dismissal of
the counter-claim — Absence of proof of Iran’s responsibility — Non-American
nationality of vessels attacked — Reasoning underlying dismissal of the original
claim — Defence based on paragraph I (d) of Article XX of the 1955 Treaty —
Self-defence — Impact of the damage to the platforms from the Iraqi attacks —
Effect of Executive Order 12613 of 29 October 1987 — “Indirect” commerce
between the territories of the High Contracting Parties — Contradiction between
the reasons for dismissal of the original claim and the terms of the operative
paragraph — Prohibition of the use of force as fundamental principle of inter-

national law.

Paragraphs
I. THE ASYMMETRY OF THE TWO PARTIES’ POSITIONS 1-3
II. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL OF THE
COUNTER-CLAIM 4-13
III. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL OF THE
ORIGINAL CLAIM 14-30
(a) The distinction drawn between the defence based on Ar-
ticle XX, paragraph 1 (d), of the 1955 Treaty and that
based on the right of self-defence 14-19
(b) Observations on the interpretation and application of
Article X, paragraph 1, of the 1955 Treaty 20-29
(i) The causal link between the damage to the Reshadat
platforms and the length of the period during which
they remained out of commission 21-25
(ii) The effect on freedom of commerce of Executive Order
12613 of 29 October 1987 26
(iii) The existence and relevance of “indirect” commerce
between the territories of the two High Contracting
Parties 27-29
(c) Is there not a contradiction between the reasons for the dis-
missal of the original claim and the terms of the operative
paragraph? 30
IV. THE PROHIBITION OF THE USE OF Force Is A FUNDAMENTAL PRIN-
CIPLE OF INTERNATIONAL LAW 31-33

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OIL PLATFORMS (SEP. OP. RIGAUX) 363
I. THE ASYMMETRY OF THE TWO PARTIES’ POSITIONS

1. Seised of two crossing actions, the claim brought by the Islamic
Republic of Iran against the United States and a counter-claim by the
Respondent to the original proceedings, the Court has found that both
claims must be rejected. In even-handedly dismissing both Parties, the
operative paragraph of the Judgment presents a simplified image of their
respective claims. I can accept point 2 and the first part of point 1 of the
operative paragraph without being in agreement on all aspects of their
underlying reasoning. On the other hand, I must distance myself more
radically from the Court’s finding set out in the second part of point 1.
This opinion is thus a dissenting one only in relation to that part and
concurring on the other elements of the operative paragraph.

2. In adopting two substantially equivalent dispositifs the Court ignores
the asymmetry in the Parties’ respective positions and in the dispute’s
underlying issues. Although each Party accuses the other of illegal use of
armed force, which constitutes the legal subject-matter common to the
two actions, the approach to verification of the facts and determination
of jurisdiction under paragraph 1 of Article X of the 1955 Treaty will be
radically different according to whether those issues are addressed in
relation to the original claim or to the counter-claim.

As regards the facts, it is not disputed — and moreover could not be
disputed — that three oil platforms belonging to the NIOC were inten-
tionally destroyed or damaged by American armed attacks (see paras. 66
to 68 of the Judgment). By contrast, the charges against Iran, whether in
regard to the laying of mines or to the firing of missiles at vessels navi-
gating in the Persian Gulf, have not been proved to the satisfaction of the
Court.

In addition to this asymmetry as to the facts, there is a comparable
lack of symmetry in terms of the nationality of the objects of verified or
alleged attacks. The oil platforms were an Iranian public asset, whereas
the ships damaged by mines or missiles did not satisfy the condition of
nationality required by Article X of the 1955 Treaty (see paras. 9 and 10
below), one of them being moreover excluded from the scope of that
Article because it was a warship.

3. It follows from this dual asymmetry that Iran could have confined
itself to disputing the truth and relevance of facts in respect of which the
counter-claimant had failed to provide adequate proof, whereas the
United States was obliged to seek out legal grounds which would strip the
proven facts of their illegal character. The United States position varied
on this point. In the period immediately following the armed attacks,
the American Government relied on its “inherent right of self-defence”
(see paras. 67 and 72 of the Judgment). Later, and in particular before
the Court, justification was sought in paragraph 1 of Article XX of the

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OIL PLATFORMS (SEP. OP. RIGAUX) 364

1955 Treaty, although the self-defence argument was never totally aban-
doned. In reality, as is confirmed by the objection to jurisdiction raised
before the Court, it was not initially the intention of the American
Government to justify its military action under a provision of the 1955
Treaty. However, the Court was in any event bound to consider the inter-
national legality of the United States armed attacks both in light of para-
graph 1 of the above-mentioned Article XX and of general international
law governing the use of force (see para. 41 of the Judgment). It was to
address the defences raised by the United States that the Court was com-
pelled to interpret and apply Article XX of the 1955 Treaty in light of
general international law. .

II. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL
OF THE COUNTER-CLAIM

4. The counter-claim is dealt with in paragraphs 101 to 124 of the
Judgment. Subject to the following observations, which relate in particu-
lar to paragraph 123, I have no difficulty in subscribing to the Court’s
findings and to point 2 of the operative paragraph. I do, however, regret
the excessively narrow limits within which the Court confined the grounds
for its decision. As it explains in paragraph 120 of the Judgment, the
Court sets out “in chronological order” Iran’s alleged attacks and, in
relation to each of them, confines itself to examining whether the vessel
mentioned in the counter-claim was engaged in commerce or navigation
between the territories of the two High Contracting Parties (para. 120 of
the Judgment). The overall conclusion, as set out in paragraph 121, is
negative: “none of the vessels described by the United States as being
damaged by Iran’s alleged attacks was engaged in commerce or naviga-

LEE)

tion “between the territories of the two High Contracting Parties’ ”.

5. Two further grounds, either of which would have sufficed for the
counter-claim to be dismissed, were omitted by the Court.

The first concerns the attributability of the acts alleged against Iran.
That the events in question occurred was not in doubt, but it still
remained to be shown that they were attributable to an agency of the
Respondent to the counter-claim. Not only did Iran consistently dispute
that its responsibility had been established for any of the incidents set out
in the American claim, but the Court itself was not convinced by the
arguments presented by the American Government on this point (see in
particular paras. 58-59 and 71-72 of the Judgment). However, the argu-
ments relied on by the Court to dismiss the grounds of justification or
defence put forward by the Respondent to the original action are not re-
addressed when the counter-claim is considered.

6. During the war between Iran and Iraq, what became known as the
“Tanker War” consisted in the use of force against ships, mainly oil

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OIL PLATFORMS (SEP. OP. RIGAUX) 365

tankers, flying the flag of States other than the two belligerents. For the
latter, the export of petroleum products, their principal economic resource,
was indispensable to the pursuit of the war, which required substantial
financial resources. This was particularly so for Iran, which, unlike Iraq,
was receiving no outside aid. Another difference between the two States
concerned the means used to transport the oil abroad: whilst a part at
. least of the Iraqi oil was exported overland, the entirety of the Iranian
oil had to be shipped by sea through the Persian Gulf.

The Tanker War has been analysed in two studies, which largely con-
cur on the facts, one by an Egyptian researcher, Ms Nadia El-Sayed El-
Shazly', the other by an American professor, George K. Walker?.
During the initial years of the war between Iran and Iraq (1981-1984),
the main protagonist in the Tanker War was Iraq (Walker, p. 46), which
sought to interrupt the export flow of Iranian oil and achieved a degree
of success (Walker, p. 51). The Iranian attacks began only in February
1984 (El-Shazly, p. 202). The number of vessels, almost all of them
tankers, hit by attacks by one or other of the two States exceeded 400
(Walker, p. 74), and according to El-Shazly (p. 307) reached a total of
463. Other sources, consistent with these, report that Iraq attacked 234
vessels and Iran 1637. Ms El-Shazly and Professor Walker provide rele-
vant data regarding the composition of tanker traffic in the Persian Gulf.
According to Walker:

“By 1986, US-flag foreign-trade tankers were almost non-existent;
their role had been taken by other nations’ vessels, particularly
those flying flags of convenience but often beneficially owned by US
business interests.” (P. 37.)

This is confirmed by Ms El-Shazly:

! Nadia El-Sayed El-Shazly, The Gulf Tanker War, Iran and [raq’s Maritime Sword-
play, 1998.

2 George K. Walker, The Tanker War, 1980-88: Law and Policy, International Law
Studies, 2000, Vol. 74.

3 David L. Peace, “Major Maritime Events in the Persian Gulf War”, paper presented
at the 82nd Annual Meeting of the American Society of International Law, 21 April 1988,
p. 3, cited by Mark W. Janis, “Neutrality”, Chap. VI of The Law of Naval Operations,
International Law Studies, 1991, Vol. 64, ed. Horace B. Robertson Jr., p. 150. The figure
of approximately 400 is also quoted by Francis V. Russo, Jr., “Neutrality at Sea: State
Practice in the Gulf War as Emerging International Customary Law”, 19 Ocean Devel-
opment and International Law (1988), p. 381. F. L. Wiswall, “Neutrality, the Rights of
Shipping and the Use of Force in the Persian Gulf”, 31 Virginia Journal of International
Law (1991), p. 620, is alone in proposing a figure of 536 attacks.

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OIL PLATFORMS (SEP. OP. RIGAUX) 366

“Owners of ageing tanker fleets, registered with poorly regulated
countries, motivated them to send their old tankers to the Gulf.
They were mostly flying flags of convenience, manned by cheap and
poorly trained crews, and had structural defects.” (P. 44.)

These two statements are mutually corroborative and explain why,
during the Tanker War, the United States assumed the duty of protecting
freedom of navigation in general, including that of vessels not flying its
own flag. Thus it is no surprise to find on the successive lists produced by
the United States in this case two Panamanian vessels (Texaco Carib-
bean, Grand Wisdom), five Liberian vessels (Lucy, Diane, Stena Explorer,
Stena Concordia, Sungari), and a Bahamian vessel (Esso Freeport).
Apart from the two Kuwaiti tankers flying an American flag of conven-
ience, to which I shall return, only the Esso Demetia bore the flag of
a State (the United Kingdom) not belonging to the category of States
notorious for the ease with which they register ships not having any
real link with them and for the laxity of the control exercised by them
over such vessels.

7. The most serious incident in the Tanker War, that which resulted in
the greatest number of victims (36 killed and 21 seriously injured), was
the destruction of the American warship USS Stark by two Iraqi Exocet
missiles on 17 May 1987. The Iraqi Government expressed its regrets to
the United States Government and in 1989 paid it compensation (Walker,
p. 60; El-Shazly, pp. 282-292). Ironically, after this attack (whose only
purpose may well have been to make it appear attributable to Iran and to
provoke the internationalization of the war), the position of the United
States continued to be favourable to Iraq. It was at the end of that same
month (29 May) that Assistant Secretary of Defense, Richard Armitage,
stated: “We can’t stand to see Iraq defeated.”* Ms El-Shazly, who
cites this statement, adds: “Thus he sealed the death certificate of US
neutrality in the Iran-Iraq war, and this myth was officially laid to
rest.” (P. 291.)

A no less paradoxical consequence of the Iraqi attack on the USS
Stark is that it accelerated the decision to reflag under American colours
tankers belonging to a Kuwaiti State company, the Kuwaiti Oil Tanker
Company (KOTC). Negotiations lasted several months, because the pro-
posal met with resistance in the United States, particularly in Congress.

4 Compare the information in an article by Eric Leser in Le Monde: “The United States
heavily armed Iraq during the 1980s” (8 March 2003, p. 4), and again in the same news-
paper on 27 March 2003, p. 8. See also Francis A. Boyle, “International Crisis and Neu-
trality: United States Foreign Policy toward the Iran-Iraq War”, 43 Mercer Law Review
(1992), pp. 523-562. See also the American statements cited by Mr. Bundy, CR 2003/5,
pp. 4 et seq.

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OIL PLATFORMS (SEP. OP. RIGAUX) 367

What was ultimately decisive was the fact that during the same period the
Soviet Union had offered Kuwait a similar service. The American deci-
sion may be seen as the expression of its determination not to allow the
USSR to gain a foothold in the Persian Gulf (El-Shazly, pp. 237, 271-
282, 301; Walker, pp. 60-62)°. One of the two United States-reflagged
vessels mentioned in the counter-claim, the Bridgeton, had also changed
its name (when flying the Kuwaiti flag, it had been called the A/ Rekkah;
El-Shazly, p. 292). It should further be noted that China and France had
refused to allow Kuwaiti tankers to fly their flags, whilst the United
Kingdom had stated that it was prepared to protect them without any
change of flag (El-Shazly, p. 273). The totally artificial nature of the
reflagging, an act of expediency inspired by the circumstances, can be
shown by the fact that from January 1989 these vessels were returned
to the Kuwaiti flag (“deflagging”: see Walker, p. 73; Wiswall, p. 623,
note 13).

In order to persuade the Senate Foreign Relations Committee that
the American reflagging of 11 Kuwaiti tankers was justified, Michael H.
Armacost, Under Secretary for Political Affairs, gave a detailed explana-
tion of American policy in the Persian Gulf:

“It is to frustrate Iranian hegemonic aspirations that the Arab gulf
states continue to support Iraq. It is for similar reasons that other
close friends, such as Egypt and Jordan, also assist Iraq . . .”°

The aid to Kuwait was subsequently justified by the financial support
provided by that State and by other Arab countries to Iraq.

“We understand why Kuwait and many Arab nations believe their
own security and stability depend on Iraq not collapsing before Iran.
We do not wish to see an Iranian victory in that terrible conflict.

Nevertheless, the United States remains formally neutral in the
war.” 7

8. Only from a rapid and superficial reading of Security Council reso-
lution 552 (1984) of 1 January 1984 can any condemnation, even an
implicit one, of the attacks attributed to Iran be inferred. The resolution
was adopted following a letter of 21 May 1984, “in which the Repre-
sentatives of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the
United Arab Emirates complain[ed] against Iranian attacks on commer-
cial ships en route to and from the ports of Kuwait and Saudi Arabia”.
However, the State accused of these attacks is identified only in the first

5 As regards the role played by Soviet competition, see, apart from El-Shazly and
Walker, Ademuni-Odeka, “Merchant Shipping and the Gulf War”, 10 Marine Policy
Reports (1988), Vol. 10, No. 3, pp. 8-9, who describes the Soviet offer as “blackmail”.

6 26 International Legal Materials (1987), p. 1429.

? Ibid., p. 1430.

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OIL PLATFORMS (SEP. OP. RIGAUX) 368

recital of the preamble to the resolution, from which the text cited above
is taken. The operative part of the resolution confines itself to reaffirming
“the right of free navigation” (point 1), and applying this principle to
“shipping en route to and from all ports and installations of the littoral
States that are not parties to the hostilities” (point 2), to calling upon “all
States .. . to refrain from any act which may lead to a further escalation
and widening of the conflict” (point 3), and to condemning “the recent
attacks on commercial ships en route to and from the ports of Kuwait
and Saudi Arabia” (point 4). There is no trace of any condemnation of
Iran, despite its being clearly named in the letter of 1 June 1984, and it
can well be appreciated that the Security Council, which had not named
— or not dared to name — the aggressor in the war launched in 1980,
could hardly condemn Iran at a time when, in 1984, the initial and almost
exclusive responsibility for the Tanker War lay with Iraq. It would thus
be wrong to confuse the re-statement in the resolution’s first recital of
the text of the complaint by the littoral States of the Persian Gulf with
the Council’s own assessment. It may be considered, a contrario, that,
inasmuch as it did not expressly condemn the State named in the docu-
ment whereby it had been seised, the Security Council was deliberately
refraining from issuing the specific condemnation sought by the States
which had signed the letter.

9. There was a further ground for rejecting the counter-claim, namely
that which could — and should — have been derived from the national-
ity of the vessels victim of the attacks wrongly attributed to Iran.

If we apply the factor connecting a ship to a State by virtue of its flag,
i.e. its registration, to the list referred to in paragraph 6, we observe that
only one vessel, the USS Samuel B. Roberts, indisputably satisfied that
condition, but this was a warship, which, as such, must be exempted from
application of the 1955 Treaty, as the Court found (para. 120 (i) of the
Judgment). Apart from two Kuwaiti ships reflagged in the United States,
the Bridgeton and the Sea Isle City, which also merit special attention,
none of the tankers which Iran is accused of attacking was under the
United States flag. These were the Texaco Caribbean, a Panamanian
vessel, the Lucy and the Diane, registered in Liberia, and the Esso Freeport,
flying the Bahamian flag. Even if we accept the expanded list, first pro-
vided in the Rejoinder of 23 March 2001, we find that it does not include
any vessel satisfying the nationality requirement. Three of these vessels,
the Stena Explorer, the Stena Concordia and the Sungari, flew the
Liberian flag, one was Panamanian, the Grand Wisdom, and the last, the
Esso Demetia, British.

8 Cf., similarly, Russo, op. cit., pp. 395-396; W. J. Fenrick, “The Exclusion Zone
Device in the Law of Naval Warfare”, XXIV The Canadian Yearbook of International
Law (1986), p. 120.

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OIL PLATFORMS (SEP. OP. RIGAUX) 369

Both Article 6 of the Geneva Convention on the High Seas of 29 April
1958 and Article 92 of the Montego Bay Convention of 10 December
1982 recognize only one nationality for a ship, that of the flag State. This
principle has been applied by the Court of Justice of the European Com-
munities ?.

The United States attempts to respond in two ways to the question
whether vessels having the nationality of a third State fall within the
scope of the jurisdictional clause in the 1955 Treaty. First, it argues that
it had assumed responsibility for protecting freedom of navigation in gen-
eral in the Persian Gulf during the war between Iran and Iraq. It is true
that nothing prohibited the United States from taking this initiative, but
it cannot be relied on against Iran for purposes of applying and inter-
preting the 1955 Treaty. Moreover, none of the States appearing on the
list — neither the Bahamas, Liberia, Panama nor the United Kingdom —
gave notice to Iran of any claim and none of them entrusted the defence
of its interests to the United States. In paragraph 123 of the Judgment the
Court considered 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
navigation, and specifically for commerce and navigation between
the territories of the parties”.

In the second sentence of the second subparagraph of paragraph 123,
and in paragraph 124, the Judgment finds that for this reason it must dis-
miss the United States claim.

10. Another justification offered by the United States consists in an
attempt to identify an “American interest” in making good flag States’
failure to act. It is sufficient to point out, without addressing in detail the
arguments made in this regard, that they run directly counter to the very
firm position which the Court took more than 30 years ago in the Bar-
celona Traction case and has never repudiated, i.e., that by forming a
company under the laws of a particular State (or, as in the present case,
by registering a ship in a particular country), the shareholders in the com-
pany (or the shipowners) had sought certain advantages for which there
was a countervailing consideration, i.e., that that State alone was per-

9 Judgment of 24 November 1992, case C-286/90, Anklagemyndigheden v. Peter Michael
Poulsen and Diva Navigation Corp., ECR, p. I-6019, cited by Rosalyn Higgins, “The ICJ,
the ECJ and the Integrity of International Law”, 52 International and Comparative Law
Quarterly (2003), pp. 6-7. Paragraph 13 of that judgment recalls that: “under interna-
tional law a vessel in principle has only one nationality, that of the State in which it is
registered”. The judgment goes on to hold that, for purposes of an EEC Regulation,
a vessel cannot be treated as a vessel of a Member State “on the ground that it has a
genuine link with that Member State” (para. 16).

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OIL PLATFORMS (SEP. OP. RIGAUX) 370

mitted to grant its diplomatic protection to the company (or to rely on
a bilateral treaty in its favour). One of the reasons given by the Court for
not “adopt[ing] .. . the theory of diplomatic protection of shareholders as
such”, that it would open “the door to competing diplomatic claims” and
“could create an atmosphere of confusion and insecurity in international
and economic relations” (case concerning Barcelona Traction, Light and
Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970,
p. 49, para. 96), applies just as strongly to the right of protection of ships,
which could potentially be exercised concurrently by the flag State, the
national State of the individual or undertaking holding a majority of the
ownership interests in the undertaking owning the vessel, by the State of
the cargo owner, etc. In respect of the counter-claim brought by the
United States, the principle deriving from the Judgment in the Barcelona
Traction case is of particularly compelling force because the freedom of
navigation protected by Article X, paragraph 1, of the 1955 Treaty is not
freedom of navigation in general, on all seas throughout the world and in
favour of all vessels whatever their flag, but freedom of navigation of
“[vlessels under the flag of either High Contracting Party” exercising that
freedom “[b]etween the territories of two High Contracting Parties”. If
both of these conditions are not satisfied and one of them remains unmet,
the claim does not fall within the jurisdiction of the Court as defined in
Article XXI, paragraph 2, of the Treaty. In respect of vessels not meeting
the conditions laid down in Article X, paragraph 1, the Court lacks juris-
diction to decide whether the damage they suffered is imputable to Iran.

Three of the vessels referred to in the above-mentioned list merit
special attention. The Samuel B. Roberts is excluded as a warship
(see paragraph 9 above).

Equally, the reflagging of the two Kuwaiti tankers does not bring
the alleged damage within the scope of Article X, paragraph 1. Such
reflagging, carried out during the war between Iran and Iraq in order to
place under the aegis of the United States vessels having the nationality
of a State which supported Iraq in its war effort against Iran, cannot be
relied upon against Iran. It should be noted that by 1989 the Kuwaiti
ships which had temporarily adopted the United States flag had already
recovered their original registration (“deflagging”)'°. Moreover, since
this change occurred before the date on which the counter-claim was sub-
mitted, that claim fails to satisfy the rule requiring continuity of the
bond of nationality. Further, the terms under which these two vessels

10 See George K. Walker, op. cit, p. 73; George P. Politakis, “From Action Stations to
Action: US Naval Deployment, ‘Non-Belligerency’ and ‘Defensive Reprisals’ in the Final
Year of the Iran-Iraq War”, 25 Ocean Development and International Law (1994), p. 40.

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OIL PLATFORMS (SEP. OP. RIGAUX) 371

were reflagged with a United States flag of convenience prevent the
counter-claim from satisfying another condition laid down by Article X,
paragraph 1, i.e., it cannot claim the benefit of freedom of commerce
and navigation “[bletween the territories of the two High Contracting
Parties”, because under the United States own domestic law, vessels
having thus obtained United States registration are not granted access
to United States ports.

11. Several passages in the Judgment refer to the “context of the gen-
eral events that took place in the Persian Gulf between 1980 and 1988, in
particular the armed conflict that opposed Iran and Iraq” (para. 23 of the
Judgment). It is only in veiled terms that in the following sentence the
Court implies that Iraq was the aggressor State. The truth of this is gen-
erally accepted today, and I feel it would be not unhelpful to indicate
what the attitude of third States was, and in particular the United States,
in the course of the conflict.

At the start of the war, the United States and the other western Powers
adopted a wait-and-see attitude marked by a certain cynicism: after the
fall of the régime of the Shah of Iran, the alliance with whom had been
one of the key elements in America’s Middle East policy, there was a
vacuum in the region. At the start of the war, neither the United States
nor the other western Powers wished to see a total victory by either of the
two belligerents. They were waiting — and hoping — to see the two
adversaries exhaust themselves without either being able to achieve
hegemony in the region. The fact that neither of the two belligerents was
named as aggressor by the Security Council enabled the other States to
sell them arms, whereas it would have been unlawful to provide military
aid to a State defined as the aggressor. The relations between the United
States and Iran had just gone thorough a particularly severe crisis fol-
lowing the hostage-taking at the United States embassy in Tehran, and
the Court had condemned Iran for this!!. For their part, the Arab States
of the Gulf had no particular sympathy for the anti-monarchist views of
the Islamic Republic of Iran. All of these circumstances encouraged Iraq
to attack Iran.

After Iraq’s initial successes, which enabled it to occupy part of Iranian
territory, Iran succeeded in reversing the position, and it was then that
the United States began its about-turn. Compliance with the obligations
of neutrality was not incompatible with American interests in the Middle
East as long as an Iranian victory appeared out of reach. By contrast, as
soon as Iraq’s chances appeared to be fading, it became necessary to
restore the balance between the opposing forces. It was also from then on
that American aid to the Iraqi war effort increased substantially, a
phenomenon hardly compatible with the maintenance of strict neutrality

11 United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, I. C.J. Reports 1980, p. 3.

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OIL PLATFORMS (SEP. OP. RIGAUX) 372

in relation to the two belligerents: the launching of “Operation Staunch”,
a campaign seeking to dissuade the western allies from selling arms to
Iran (El-Shazly, p. 215); the transmission to Iraq of satellite intelligence
(El-Shazly, p. 323); authorization for the sale of 60 helicopters “for agri-
cultural purposes”, and a loan of $460 million for the purchase of rice
(Walker, p. 47). In addition, there was significant diplomatic support: in
1982, Iraq was removed from the list of countries supporting interna-
tional terrorism and in November 1984 diplomatic relations were resumed
(Walker, pp. 48, 55). Ms El-Shazly summarizes American policy during
the war between Iran and Iraq in the following terms:

“Washington conducted a realpolitik strategy. It repeatedly pro-
claimed its neutrality, stated its interests and clear objectives in the
Gulf, hand in hand with a concealed agenda, the blueprint of which
combined the leaning toward Iraq with the yet undisclosed licensing
of arms sales.” (P. 207.)

While Iran may have failed to establish decisively the relationship
between the American attack on Sassan and Sirri and Iraq’s reconquest
of the al-Faw area close to Basra, the coincidence of the two events is
disturbing to say the least. The operation termed “Praying Mantis”
resulted in the destruction of the two platforms and of two Iranian
frigates and was considered by Professor Walker as “[t]he largest com-
bined air and surface engagement in war at sea for the US Navy since
World War II” (p. 69).

While it is admittedly not for the Court to rule on the support given to
the Iraqi war effort by Saudi Arabia or by Kuwait, who are absent from
the present proceedings, yet the case of Kuwait deserves special mention
because of the aid provided by the United States to that State, in par-
ticular by authorizing the American reflagging of 11 Kuwaiti tankers. On
this point, I cannot do better than quote a distinguished American inter-
national lawyer, Professor Louis Henkin:

“In the Gulf, some spokesman said recently, the United States
remain formally neutral. But even if the concept of neutrality can
apply in some cases, can the United States be neutral here? No one
would accuse us of being a friend of Iran, but there is a strong case
that Iraq is probably the aggressor. No one has mentioned that for
some years now. It is true that the Security Council refrained from
so holding, in part because the United States would not permit it, or
because the Russians would not permit it. That raises some ques-
tions, but that doesn’t change the law; in the absence of a Security
Council determination that one party was the aggressor, do the laws
of the Charter not apply? In the absence of such a finding by the

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OIL PLATFORMS (SEP. OP. RIGAUX) 373

Security Council, are States free to be neutral even if it is clear that
one side launched the war in violation of the Charter? Is Kuwait
neutral, or is it, as the first speaker suggested, perhaps a co-belliger-
ent? Is the United States supporting Kuwait, and, if so, are we also
co-belligerents? If so, we may not be only supporting the aggressor
but if the old laws of war apply — we may also be violating the law
of war.

I suggest we may not only have slipped into the war but, from the
international lawyer’s point of view, we seem to have slipped into a
particular position of international law without much thought about
it and without any thought to the long-term consequences. In fact,
we seem to be taking seriously the outdated law of war, but not the
contemporary law against war. In the process we may have eroded
both. At least it cannot be said that the law on neutrality and
belligerency is what it was before 1945.” !?

12. On 9 December 1991 the supplementary report of the United
Nations Secretary-General on the implementation of Security Council
resolution 598 (1987) (doc. S/23273) expressed in unequivocal terms the
view that Iraq was responsible:

“6. The Iraqi reply to my letter of 14 August 1991 is not a substan-
tial one; therefore I am bound to rely on explanations given by Iraq
earlier. That these explanations do not appear sufficient or accept-
able to the international community is a fact. Accordingly, the out-
standing event under the violations referred to in paragraph 5 above
is the attack of 22 September 1980 against Iran, which cannot be jus-
tified under the Charter of the United Nations, any recognized rules
and principles of international law or any principles of international
morality and entails the responsibility for the conflict.

7. Even if before the outbreak of the conflict there had been some
encroachment by Iran on Iraqi territory, such encroachment did not
justify Iraq’s aggression against Iran — which was followed by
Iraq’s continuous occupation of Iranian territory during the conflict
— in violation of the prohibition of the use of force, which is
regarded as one of the rules of jus cogens.”

'2 “The Persian/Arabian Gulf Tanker War: International Law or International Chaos”,
26 January 1988, 19 Ocean Development and International Law (1988), pp. 309-310. Cf.
Tod A. Phillips, “Exchanging Excuses for Uses of Force — The Tug of War in the Persian
Gulf”, 10 Houston Journal of International Law (1987), pp. 275-293.

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OIL PLATFORMS (SEP. OP. RIGAUX) 374

The supplementary report confines itself to responsibility for land
operations; it contains no observation regarding the war at sea, and in
particular the Tanker War.

13. Thus there were two grounds for dismissal of the counter-claim
that were not invoked by the Court. The first is that the claim was not
justified in terms of fact (paras. 5-7 above), the second being that it did
not satisfy the nationality requirement in respect of the vessels attacked
during the war between Iran and Iraq. Yet either of these two grounds
should logically have taken precedence over the sole ground relied on in
the Judgment, namely that none of the vessels “was engaged in commerce
or navigation ‘between the territories of the two High Contracting
Parties’” (para. 121 of the Judgment).

The choice of this ground alone is doubtless explicable by the Court’s
desire to establish an artificial parallel between the two claims, both being
rejected for the same reason.

III. OBSERVATIONS ON THE REASONING UNDERLYING DISMISSAL
OF THE ORIGINAL CLAIM

(a) The Distinction Drawn between the Defence Based on Article XX,
Paragraph I (d), of the 1955 Treaty and That Based on the Right of
Self-defence

14. In paragraph 78 of the Judgment the Court finds that the actions
carried out by United States forces against Iranian oil installations can-
not be justified either under Article XX, paragraph 1 (d), of the 1955
Treaty or as acts of self-defence. This is a situation analogous to that in
criminal law where one and the same act is covered by two offences, and
thus falls to be assessed by reference to the terms of each of those
offences.

Paragraph 41 of the Judgment fails to do proper justice to this dual
characterization. Thus in that paragraph the Court interprets subpara-
graph (d) in light of general international law without first addressing
the issue of the High Contracting Parties’ intention. And yet this is a pro-
vision which occurs in a number of treaties of friendship similar to that
signed in 1955 by Iran with the United States and also in Article XXI of
the GATT, and on which there exists a substantial body of comment in
the literature.

Paragraph 1 (d) reads as follows:

“Article XX

1. The present Treaty shall not preclude the application of
measures:

(d) [French translation: Ou nécessaires a l’exécution des obliga-
tions de l’une ou l’autre des Hautes Parties contractantes rela-
tives au maintien ou au rétablissement de la paix et de la sécu-

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OIL PLATFORMS (SEP. OP. RIGAUX) 375

rité internationales ou a la protection des intéréts vitaux de
cette Haute Partie contractante sur le plan de la sécurité.]”

This translation, which is taken from the United Nations Recueil des
traités, does not correspond entirely to the English-language text of the
Treaty, which is equally authoritative with the original Farsi. The English
text reads as follows:

“(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”.

In repeating the adjective “necessary”, the original text avoids an
ambiguity to which the French translation could lead. The repetition
brings out more clearly the distinction between what is necessary to fulfil
a State’s international obligations and what is necessary to protect the
essential (or vital) interests of the State itself. In the French translation,
the repetition of the conjunction “ou” (“or”) could suggest that the State is
under a duty to protect its own interests. On the other hand, the distinc-
tion between the adjective “essential” and the French translation “vitaux”
(“vital”) appears to be of little significance. In any event, in case of doubt
we should rely on the English text.

15. The question of interpretation faced by the Court today was also
addressed by it in the case concerning Military and Paramilitary Activi-
ties in and against Nicaragua (Nicaragua v. United States of America) in
relation to Article XXI, paragraph 1 (d), of the Treaty of Friendship,
Commerce and Navigation concluded in 1956 between the United States
and Nicaragua, which was drafted in similar terms to Article XX, para-
graph 1 (d), of the 1955 Treaty with Iran!?.

A passage from the 1986 Judgment has been given differing interpre-
tations by the Parties to the present dispute. What is the relationship
between the use of force exceptionally permitted in exercise of the right of
self-defence and the measures which a State may take because they are
“nécessaires a la protection de ses intéréts vitaux sur le plan de la sécu-
rité/necessary to protect its essential security interests”? (The English text
is clearer and more concise.)

According to the 1986 Judgment:

“224. On the other hand, action taken in self-defence, individual
or collective, might be considered as part of the wider category of
measures qualified in Article XXI as ‘necessary to protect’ the ‘essen-
tial security interests’ of a party.

It is difficult to deny that self-defence against an armed attack cor-

'3 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 115-116, para. 221.

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OIL PLATFORMS (SEP. OP. RIGAUX) 376

responds to measures necessary to protect essential security interests.
But the concepts of essential security interests certainly extends
beyond the concept of an armed attack, and has been subject to very
broad interpretations in the past. The Court has therefore to assess
whether the risk run by these ‘essential security interests’ is reason-
able, and secondly, whether the measures presented as being designed
to protect these interests are not merely useful but ‘necessary’.” !4

In reality, there are three issues here: what are the circumstances in
which, respectively, Article 51 of the Charter and Article XX of the 1955
Treaty apply? What measures is it lawful to take in either case? What
power of review does the Court have over the lawfulness of action taken
by a State having accepted a jurisdictional clause?

16. The answer to the first question can be gleaned more clearly from
Article 51 of the Charter than from paragraph 1 (d) of Article XX of the
1955 Treaty. Exercise of the “inherent right of individual or collective
self-defence” is authorized only where a Member of the United Nations
has been the subject of “an armed attack”. It is necessary, but suffices,
that the facts alleged in support of the exercise of self-defence satisfy this
requirement. The situation referred to in paragraph 1 (d) of Article XX
of the 1955 Treaty is described in much vaguer terms: in order for the
measure taken to satisfy the requirements of this provision, it must be
necessary to protect a State’s essential security interests. This requirement
contains three undefined or poorly defined concepts: “necessary to pro-

tect”, “essential” and “security”.

There is a similar difference in regard to the form and scope of the
authorized response. In a system where self-defence constitutes the sole
exception to the prohibition of the use of force laid down in Article 2,
paragraph 4, of the Charter, Article 51 authorizes, to the extent necessary
and subject to compliance with the principle of proportionality, a reac-
tion to an “armed attack” by the use of force which, in other circum-
stances, would have been prohibited. In paragraph 1 (d) of Article XX
of the 1955 Treaty, the lack of definition in regard to the relevant circum-
stances is matched by a vagueness in respect to the “measures” which a
State may take where its security is at risk.

What measures may be considered “necessary” (subject always to

respect for the principle of proportionality) to protect a State’s essential
security interests? More specifically, the lack of a clear definition of

4 JZ.C.J. Reports 1986, p. 117, para. 224.

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OIL PLATFORMS (SEP. OP. RIGAUX) 377

“necessity” operates at two levels: the characterization of the situation
and the measures which it justifies.

Of the three questions, the third is the easiest. If the application of
Article 51 of the Charter or of Article XX of the 1955 Treaty becomes the
subject of a judicial dispute, then the competent court undoubtedly has
the power — and indeed the duty — to verify that the rules of interna-
tional law have been applied correctly. The Court had already reached
this conclusion in the case concerning Military and Paramilitary Activi-
ties in and against Nicaragua ( Nicaragua v. United States of America) :

“But by the terms of the Treaty itself, whether a measure is
necessary to protect the essential security interests of a party is
not, as the Court has emphasized (paragraph 222 above), purely a
question for the subjective judgment of the party; the text does not
refer to what the party ‘considers necessary’ for that purpose.” !>

This explanation is necessary in order to dispel an apparent ambiguity
in the text of paragraph 224 of the 1986 Judgment: action taken in self-
defence may be considered as part of the wider category of measures
described in Article XXI only on the implied condition that the State
exercising its right of self-defence has a choice from among various types
of forcible action, some more far-going than others. In the case concern-
ing Military and Paramilitary Activities in and against Nicaragua ( Nica-
ragua Vv. United States of America), the Court itself stated that it was
“necessary to distinguish the most grave forms of the use of force (those
constituting an armed attack) from other less grave forms” !6. By the
same token, the proposition that “the concept of essential security inter-
ests certainly extends beyond the concept of an armed attack” is accept-
able only if it signifies that there is a difference in kind (rather than the
one of degree suggested by the phrase “extends beyond”) between an
armed attack and the various other kinds of conduct of a State against
which another State considers it “necessary”, by appropriate measures,
to protect its essential security interests.

17. The question to be answered for purposes of applying and inter-
preting Article XX, paragraph 1 (d), of the 1955 Treaty is whether the
use of force falls within the “measures” that a State may take to protect
its essential security interests. Or, in other words, do the measures from
which a State may choose in order to protect its essential security inter-
ests include the use of armed force against another State? For that was
certainly what the attack on the oil platforms was, since these, being
located on Iran’s continental shelf, fall within the exclusive jurisdiction of
that State.

There are two ways of answering the question as posed in these specific
terms. Either we accept that paragraph 1 (d) of Article XX falls to be

IS ZC.J. Reports 1986, p. 141, para. 282.
16 Jbid., p. 101, para. 191.

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OIL PLATFORMS (SEP. OP. RIGAUX) 378

considered in some form of isolation which cuts it off from the other
rules of international law, in particular the United Nations Charter and
the norms of customary international law prohibiting the use of force, or
we accept that the prohibition of the use of force in accordance with the
terms of Article 2, paragraph 4, of the Charter and with customary inter-
national law forms part of jus cogens, which would prohibit States from
derogating therefrom in their bilateral treaty relations. For that would
indeed be the consequence to which the first reply to the question would
lead: paragraph 1 (d) of Article XX would permit either of the contract-
ing States to use armed force against the other State in circumstances
which would not have to satisfy the requirements of Article 51 of the
Charter but
guise of “measures to protect its essential security interests”.

18. In its 1986 Judgment in the case concerning Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), the Court did indeed reject the United States defence based on
paragraph 1 (d) of Article XXI of the Treaty of Friendship with Nica-
ragua (having first rejected the self-defence argument). However, in hold-
ing that “the mining of Nicaraguan ports, and the direct attacks on ports
and oil installations, cannot possibly be justified as ‘necessary’ to protect
the essential security interests of the United States” '’, the Court does not
expressly explain the reason for its decision: is it because the actions
attributed to the United States go beyond the nature and scope of
measures which may be taken under Article XXI of the Treaty of Friend-
ship, or, more simply, because such actions were not necessary to protect
essential security interests, but would not have been unlawful if they had
satisfied that requirement? Point 2 of the operative paragraph of the 1986
Judgment expressly rejects “the justification of collective self-defence
maintained by the United States of America”, whilst no other part of that
operative paragraph refers to Article XXI of the Treaty of Friendship.

In order to decide that the measures which a State is authorized to take
under paragraph | (d) of Article XX of the 1955 Treaty and numerous
similar provisions in other bilateral treaties of friendship and commerce
do not include the use of force, the Court need not have recourse to the
United Nations Charter or the customary rules of international law on
the use of force. It is open to the Court, while confining itself to inter-

to conclude, simply by interpreting paragraph 1 (d), that the High Con-
tracting Parties did not intend to confer upon one another a mutual
freedom to have recourse to armed force in the context of a measure
necessary to protect essential security interests.

17 ZC.J. Reports 1986, p. 141, para. 282.

221
OIL PLATFORMS (SEP. OP. RIGAUX) 379

American jurists who have written commentaries on treaties of friend-
ship or on the GATT article which similarly authorizes derogations from
the Agreement’s other provisions where this is necessary to protect a
State’s essential security interests categorically reject the idea that the use
of armed force can be one of the “measures” envisaged by such a provi-
sion!®, M. J. Hahn very clearly excludes the use of force in the context of
measures authorized under Article XXI (d) of the GATT Rules. He then
gives a list of examples, taken from State practice, of the implementation
of that Article, but not one of them includes the use of force. An
embargo or measures of economic retaliation are what are generally
used, such as the United States embargo on Cuba (Hahn, p. 571).

Not one of the recent works on GATT even suggests that Article XXI
of the GATT would authorize a State to use force to protect a serious
security interest. According to Andreas F. Lowenfeld:

“Well before the United Nations Security Council began to use
economic sanctions as a primary tool, individual countries used eco-
nomic sanctions as an important instrument of foreign policy, less
dangerous than military force, but more serious — and sometimes
more effective — than diplomacy alone .. . A variety of sanctions
have been employed, from total embargoes to selective controls on
exports and imports, to freezing of assets, blocking of financial
transactions, and restrictions on shipping and aviation.” !°

The same applies to measures of retaliation or reprisal, with which
the American action against the oil platforms would bear a certain com-
parison, if armed reprisals were not prohibited by general international
law?° (see also the resolution of the Institut de droit international,

18 See inter alia Pamela B. Gann, “The U.S. Bilateral Investment Treaty Program”,
XXI Stanford Journal of International Law (1985), pp. 373-457, at p. 425; Michael J.
Hahn, “Vital Interests and the Law of GATT: An Analysis of GATT’s Security Excep-
tion”, 12 Michigan Journal of International Law (1991), pp. 558-620. See also Olivia Q.
Swaak-Goldman, “Who Defines Members’ Security Interest in the WTO?”, 9 Leiden
Journal of International Law (1996), pp. 361-371. The latter, moreover, cites only embargo
cases, in particular at the time of the Falklands War (pp. 365-366) or under the Helms-
Burton Act (pp. 367-368).

19 Andreas F. Lowenfeld, International Economic Law, 2002, p. 764. See similarly
Legal Problems of International Economic Relations, Cases, Materials and Text. .., 4th
ed. by John H. Jackson, William J. Davey and Alan O. Sykes, Jr., 2002, Section 21.5,
pp. 1045 et seg. ; Raj Bhala, International Trade Law, Theory and Practice, 2nd ed., 2001,
pp. 594-604.

20 See, for example, Rosalyn Higgins, Problems and Process, International Law and
How We Use It, 1994, pp. 240-241, 244-245; Michel Virally, “Le principe de réciprocité

222
OIL PLATFORMS (SEP. OP. RIGAUX) 380

“Régime des représailles en temps de paix”, Art. 4, Annuaire de I’ Institut
de droit international, 1934, p. 709).

19. It may be concluded on this point that the Court could have better
distinguished between the arguments deriving from the exception pro-
vided for in Article XX, paragraph | (d), of the 1955 Treaty and those
based on the right of self-defence. While the Court did indeed reject both
defences relied on by the United States, it failed to rule expressly on the
specific nature of subparagraph (d). Only in the event of a finding that
the High Contracting Parties had intended to authorize each other to
derogate from the provisions of the Charter concerning the use of force
should the Court have decided that such an attempt to circumvent a
peremptory norm of international law (jus cogens) was outside their
treaty-making power.

This analysis is not at variance with the solutions reached by the Court
in the case concerning Military and Paramilitary Activities in and against
Nicaragua. The 1986 Judgment is neither clear nor decisive on issues con-
cerning the relationship between the clause in the Treaty of Friendship
and the Charter rules on self-defence.

(b) Observations on the Interpretation and Application of Article X,
Paragraph 1, of the 1955 Treaty

20. The Judgment devotes lengthy passages to the issue of whether
Iran’s claim falls within the terms of Article X, paragraph 1, of the 1955
Treaty (paras. 79-98 of the Judgment). The questions of interpretation
on which I feel myself bound to differ from the Court’s decision and its
reasoning relate to the following points:

(i) in respect of the Reshadat platforms, the finding that, because the
damage which they had suffered as a result of an attack by Iraq had
rendered them inoperative, there was no activity capable of being
interrupted by the subsequent American attack;

(ii) in respect of the Salman and Nasr platforms, the finding that the
export of Iranian oil to the United States was in any event pre-
vented for a different reason, namely the embargo on imports of

dans le droit international contemporain”, Recueil des cours de l’Académie de droit inter-
national de La Haye, Vol. 122 (1967), pp. 51-54; Avra Constantinou, The Right of Self-
Defence under Contemporary International Law under Article 51 of the United Nations
Charter, 2000, pp. 129-155, in regard to counter-measures, which are lawful only in so far
as they are not accompanied by the use of force; D. W. Bowett, “Reprisals Involving
Recourse to Armed Force”, 66 American Journal of International Law (1972), pp. 1-36;
Robert W. Tucker, “Reprisals and Self-Defence: The Customary Law”, eod. loco, pp. 586-
594; Richard A. Falk, “The Beirut Raid and the International Law of Retaliation”, 63
American Journal of International Law (1969), pp. 415-443; Serge Regourd, “Raids ‘anti-
terroristes’ et développements récents des atteintes illicites au principe de non-interven-
tion”, 32 Annuaire français de droit international (1986), p. 88.

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OIL PLATFORMS (SEP. OP. RIGAUX) 381

Iranian oil imposed by Executive Order 12613 of 29 October
1987;

(iii) the finding that Iran had not succeeded in showing that the damage
to the Iranian oil platforms had interfered with freedom of trade
“between the territories of the High Contracting Parties”.

(i) The causal link between the damage to the Reshadat platforms and
the length of the period during which they remained out of commis-
sion

21. At the time when the Iranian oil platforms were attacked by the
United States armed forces, some of them were already temporarily out
of commission because of damage previously caused by Iraqi attacks.
According to the statements of Mr. Zeinoddin and Mr. Sellers at the
hearing on 18 February 2003 (CR 2003/6, pp. 39 et seq.), the R-7 plat-
form of the Reshadat complex was attacked by Iraq on 19 October 1986
and this temporarily stopped oil production at the Reshadat and Resalat
complexes. A second Iraqi attack occurred on 15 July 1987, when repair
work was under way, but it was anticipated that production would
resume at the end of October 1987 at a level of 20,000 barrels per day.
The Salman complex, made up of seven interconnected platforms, was
also attacked by Iraq on 16 October 1986 but suffered only light damage
and production resumed three days later.

The United States attacks on 19 October 1987 completely destroyed
the Reshadat production complex and R-7 at a time when engineers were
busy repairing it. The R-4 platform was also attacked. Production could
only resume at a lower level three years later and did not reach its normal
level until 1993. On 18 April 1988 the United States attacked the Salman
and Nasr complexes. The Americans had left explosives on the power
generating platform but the detonator failed. The damage was however
substantial enough that production could not return to its normal level
until 1993. According to the information provided by Mr. Zeinoddin at
the hearing on 18 February 2003 (CR 2003/6, pp. 32 et seq.), the Resha-
dat and Resalat complexes, according to the diagram at tab No. 7 in the
judges’ folder submitted by the Applicant, worked together in the follow-
ing way. The Reshadat complex consisted of three drilling and produc-
tion platforms (R-3, R-4 and R-7) linked to a total of 27 oil wells. The oil
produced by the R-3 platform was transported by submarine pipeline to
the R-4 platform and thence, together with the crude oil extracted at the
R-4 platform, to the R-7 platform, from which the oil, after initial water
and gas separation, was transported by submarine pipeline to Lavan
Island, 108 km away.

22. The Resalat offshore complex consisted of three linked drilling and

224
OIL PLATFORMS (SEP. OP. RIGAUX) 382

production platforms, referred to as R-1, to which 14 wells were con-
nected. The crude oil produced by them was transported by a 29-km sub-
marine pipeline to the Reshadat R-7 platform, where it underwent the
same treatment as the oil produced by the R-3, R-4 and R-7 platforms.
Thus, R-7 was the key platform on which the whole of the Reshadat and
Resalat fields depended.

The Salman complex, a diagram of which appears at tab No. 9, con-
sisted of seven interconnected platforms, including one drilling and two
production platforms. Oil from 21 wells was transported by pipeline to
this complex and from there to Lavan Island after initial water and gas
separation. Like the crude oil from Reshadat and Resalat, oil from Sal-
man underwent further water and gas separation on Lavan Island and
was either refined there for domestic consumption or exported.

The Nasr complex, a diagram of which appears at tab No. 11, com-
prised a central platform (A), a flaming point and six oil producing plat-
forms grouped around the central platform, supplied by 44 wells in the
Sirri field and four wells in the Nosrat field. Crude oil from all of these
wells was transported by submarine pipeline to the central platform and
from there to Sirri Island for secondary processing and export, as there
are no refineries on Sirri Island. Unlike the two complexes previously
described, the Nasr complex was not attacked by Iraq and was function-
ing normally at the time of the United States attack.

Normal daily production at Reshadat-Resalat was 20,000 barrels, at
Salman 125,000 barrels. At the time of the United States attack, the Nasr
complex was producing some 36,000 barrels daily, although it was
capable of producing 120,000 barrels per day.

23. In order for Article X, paragraph 1, to apply to the destruction of
the three oil complexes of Reshadat-Resalat, Salman and Nasr, three
conditions must be satisfied: the platforms must have been the site of
commercial activity, freedom of commerce must have been prejudiced
and that freedom must have been exercised, or been capable of being
exercised, between the territories of the two High Contracting Parties.

By their very nature, the three oil platform complexes.were intended
for the production, processing and transport of oil to a place where it
could be “placed in commerce”. The fact that platforms are artificially
erected on the continental shelf of a State for the purpose of extracting
oil resources lying in that State’s exclusive economic zone and that
advanced technology is applied to produce crude oil with a view to its
commercialization unquestionably places the resultant activities within
the realm of the exercise of “freedom of commerce”. To this must be
added the vulnerability and therefore fragility of the effective enjoyment

225
OIL PLATFORMS (SEP. OP. RIGAUX) 383

of that freedom. The damage inflicted on just one part of facilities which
are necessarily interconnected unavoidably breaks the chain of produc-
tion and, consequently, the chain of commercialization. When, moreover,
the destruction takes place during a war in which those same installations
are under constant threat of attack by enemy forces, their repair requires
particularly arduous efforts.

24. The second condition concerns the notion of freedom of com-
merce. In order for such a freedom to be prejudiced, it is not necessary
for the actual or immediate conduct of the commercial activity, in the
present case the protected oil production activity, to be brought to a halt.
It is no defence to argue that two of the oil complexes were temporarily
out of commission as a result of the Iraqi attacks, since repair work was
in progress. Even in a country like Iran, which possesses abundant oil
resources and numerous production centres, the disabling of even one
part of the machinery of production prejudices freedom of commerce,
that is to say, the ability to choose from production sites for purposes of
commercialization.

I cannot in particular subscribe to the following statement by the
Court in paragraph 92 of the Judgment: “Injury to potential for future
commerce is however, in the Court’s view, not necessarily to be identified
with injury to freedom of commerce, within the meeting of Article X,
paragraph 1, of the 1955 Treaty.”

Freedom of commerce implies not only freedom for Iran to choose
where it will produce and sell its petroleum wealth, but also includes con-
trol over the future development of that commerce.

25. The third and last question concerns the spatial or relational ele-
ment of freedom of commerce: that freedom is protected in so far as it is
exercised between the territories of the two High Contracting Parties.
Having been built on the Iranian continental shelf, the oil platforms are
part of Iranian territory. The same is true of Lavan Island, to which oil
from the Salman complex is transported, and of Sirri Island, through
which oil from the Nasr complex passes. But was there infringement of
freedom of commerce between this territory and the territory of the
United States? The response to this question is bound up with that just
given to the preceding question. Throughout the war between Iran and
Iraq, Iran never stopped supplying oil to the United States. The tempo-
rary disabling of the facilities of the three oil complexes prejudiced Iran’s
freedom of commerce because it was restricted in its freedom to choose
the centres of production from which oil was to be exported to the
United States.

(ii) The effect on freedom of commerce of Executive Order 12613 of
29 October 1987

26. In its Rejoinder of 23 March 2001 (Nos. 3.55 to 3.59) the United
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OIL PLATFORMS (SEP. OP. RIGAUX) 384

States puts forward two arguments in justification, one erroneous and the
other audacious. The first has already been refuted: the fact that produc-
tion at some installations had to be halted as a result of the Iraqi attacks
is irrelevant because the subsequent destruction of those installations by
United States forces destroyed the repair work being completed and
delayed the resumption of operations. The justification which must be
adjudged audacious seeks to found itself on the United States President’s
Executive Order of 29 October 1987, as a result of which all Iranian oil
imports by the United States purportedly ceased. The Court is wrong in
accepting this ground for holding Article X, paragraph 1, inapplicable
(see paras. 93 and 94 of the Judgment). In so doing, it upholds the right
of a State party to a bilateral treaty to exonerate itself by a unilateral
administrative act from responsibility engaged by an earlier act commit-
ted in violation of that treaty. In the case concerning Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), the Court found that the unilateral decision to impose an
embargo on ships registered in Nicaragua constituted per se a violation
of the Treaty of Friendship between the United States and Nicaragua
(.C.J. Reports 1986, p. 140, para. 279). Whether viewed as cumulative to
the use of force, as in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), or as potentially exonerating the State from responsibility
incurred as a result of the use of force, as is claimed in the present case,
a unilateral administrative measure adopted by a State party to a treaty
has to be assessed in the light of the treaty obligations of both parties; it
cannot have the effect of discharging one of the States from any of those
obligations.
According ito ithe Judgment:

“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 questions which Iran has
chosen not to put formally in issue, and on which the Court has thus
not heard full argument.” (Para. 94.)

This is to misrepresent the “Iranian contention”. It is not a question of
determining whether the embargo “was a breach of the 1955 Treaty” but,
which is something altogether different, whether the embargo could be
invoked in order to escape the consequences of a prior illegal act, the
destruction of the Iranian oil platforms.

(iii) The existence and relevance of “indirect” commerce between the
territories of the two High Contracting Parties

27. Both in their oral statements and in their written pleadings, the
two Parties referred to the report drawn up by Mr. Peter Odell at Iran’s
request, which explained that the embargo did not prevent continued
Iranian oil exports to the United States, but that this was done indirectly,

227
OIL PLATFORMS (SEP. OP. RIGAUX) 385

Iranian crude oil being exported to Western Europe and then re-exported
to the United States after refining. The report by Mr. Odell, a British
expert, confirms the statement by Mr. Seyed-Hossein Hosseini, NIOC
Director of International Affairs. The statement and report appear,
together with their annexes, in Volume III of Iran’s Reply of 10 March
1999. This commerce, characterized as “indirect”, raises two questions
concerning the interpretation of Article X, paragraph 1: if a product
originating in Iran transits through a third country before arriving in the
United States, does it fall within the scope of freedom of commerce
“Tbjetween the territories of the two High Contracting Parties”? Did the
refining process carried out in the third country result in changing the
nature of the oil to the point of breaking the flow of commerce between
the two States?

28. The beginnings of a response, if not the response itself, to these
two questions can be found in the Judgment delivered on 12 December
1996 by the Court on the Preliminary Objection of the United States. The
extremely broad conception of the notion of commerce which emerges
from the long discussion devoted by the Judgment to this point (C.J.
Reports 1996 (II), pp. 817-820, paras. 42-52) enables it to encompass the
multiple, diversified operations characterizing contemporary international
commerce and the myriad participants therein. Paragraph 42 of the 1996
Judgment is particularly significant in this respect, notably when it refers
to “the entire range of activities dealt with in the Treaty” (“toute la
gamme d'activités auxquelles le traité s'étend”). Today, a product typi-
cally passes through several countries before reaching its final destination
and undergoes successive transformations adapting it for the use to
which it is to be put by the end-user. The transformation of crude oil into
a refined product does not result in a product of a nature different from
that which it had at the outset. Oil production comprises successive
phases leading to the final product and it would be artificial to draw lines
between them. To decide otherwise would be to introduce a metaphysical
distinction in objects of international commerce between substance and
treatment, the successive stages in the processing of the initial “crude”
product resulting in the identification of different “substances” depend-
ing on the form of the final product.

29. The reasoning in the Judgment focuses not so much on the “suc-
cessive technical processes that [the oil] underwent” as on the “nature of
the successive commercial transactions relating to the oil”. The Judgment
continues:

“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 inter-
mediate 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

228
OIL PLATFORMS (SEP. OP. RIGAUX) 386

intermediate purchaser; and ‘commerce’ between an intermediate
seller and the United States.” (Para. 97.)

This is a plausible scenario, but the Court presents it as if it had been
verified in practice. However, there is nothing either in the Parties’ writ-
ten pleadings or in their oral statements which lends any support for
what can only be regarded as pure speculation, to which the Judgment
appears to accord a substance which it does not merit.

It could equally well be assumed that “indirect” commerce took the
form of the sale of crude oil to an American customer, with the contract
providing for refining to take place in a third State. Such a hypothesis is
indeed more plausible than that assumed by the Court in its reasoning,
since it relieves the “intermediary” of the risk of purchasing crude oil
without any assurance of finding a market for the finished product.

“Direct” commerce of this kind is all the more credible in that Sec-
tion 2 (b) of Executive Order 12613 contained an exception whereby the
embargo was not to apply to “petroleum products refined from Iranian
crude oil in a third country” (para. 96 of the Judgment). The consequence
of this exception is twofold. First, it means that, in its absence, such an
operation would have been caught by Section 1 and accordingly been
prohibited. Secondly, it implies that the Iranian origin of a product
refined in a third State could have been detected, making the exception
necessary so as to forestall a consequence which the President of the
United States wished to avoid in light of his country’s energy needs.

(c) Is There Not a Contradiction between the Reasons for the Dismissal
of the Original Claim and the Terms of the Operative Paragraph?

30. In paragraph 42 of the Judgment the Court declares itself compe-
tent to rule on the compatibility of the American military actions against
the oil platforms with international law regarding the use of force. After
examining the factual and legal issues enabling it to reach its decision
(paras. 43-77 of the Judgment), the Court concludes in paragraph 78 that
those actions

“cannot be justified, under Article XX, paragraph | (d), of the 1955
Treaty, as being measures necessary to protect the essential security
interests of the United States, since those actions constituted recourse
to armed force not qualifying, under international law on the ques-
tion, as acts of self-defence, and thus did not fall within the category
of measures contemplated, upon its correct interpretation, by that
provision of the Treaty”.

This purely negative conclusion is reproduced in the first part of
point 1 of the Judgment’s operative paragraph. In paragraphs 96 to 98,
the Court absolves from all responsibility a State which it has found
guilty of violation of a principle of international law as fundamental as

229
OIL PLATFORMS (SEP. OP. RIGAUX) 387

the prohibition on the use of force in relations between States. Even if
one were to accept — contrary to what has been demonstrated above —
that the destruction of the Iranian oil platforms did not violate freedom
of commerce between the two High Contracting Parties, it would still be
illogical to find that the destruction of those platforms was carried out by
an unlawful use of armed force and yet did not entitle the State victim of
that wrongful act to reparation. Already in paragraph 41 of the Judg-
ment, the Court states:

“The application of the relevant rules of international law relating
to this question thus forms an integral part of the task of interpreta-
tion entrusted to the Court by Article XXI, paragraph 2, of the 1955
Treaty.”

Having, in execution of that task, found that there has been a breach
of the prohibition on the use of force in connection with Iran’s claim
based on Article X, paragraph 1, of the Treaty, the Court has failed to
complete its mission in leaving that breach uncompensated.

IV. THE PROHIBITION OF THE USE OF FORCE IS A FUNDAMENTAL
PRINCIPLE OF INTERNATIONAL LAW

31. If, notwithstanding my reservations as set out above, I voted in
favour of the first point in the operative paragraph, it was because, not
being offered the possibility of choosing between the Court’s conclusion
on the use of force and its refusal to uphold Iran’s legitimate claim, I con-
sidered that I must in all conscience give preference to the first of these
two limbs of point 1 of the operative paragraph.

In recent decades, some distinguished American jurists have deplored
the retreat from support for the principle on the prohibition on the use of
force. Among many others, I would cite: Thomas M. Franck, “Who
Killed Article 2, Paragraph 4? Or: Changing Norms Governing the Use
of Force by States”, 64 American Journal of International Law (1970),
pp. 809-837; Oscar Schachter, “In Defence of International Rules on the
Use of Force”, 53 University of Chicago Law Review (1986), pp. 113-146;
Oscar Schachter, “The Role of Power in International Law”, Proceedings
of the 93rd Annual Meeting of the American Society of International Law
(1999), pp. 200-205. These two eminent jurists have stressed in particular
the perverse effect of a justification founded on a misconception of the
“inherent right of self-defence”. It cannot, however, be said that everyone
subscribes today to the view that Article 2, paragraph 4, of the Charter
still remains in force. Thus we find published works which categorically
deny this. See, for example, the recent article by John. R. Bolton, “Is
There Really ‘Law’ in International Affairs?”, 10 Transnational Law and
Contemporary Problems (2000), pp. 1-48.

230
OIL PLATFORMS (SEP. OP. RIGAUX) 388

Such a position carries a certain weight, for its author was for five
years (1989-1993) Assistant Secretary of State for International Organi-
zation Affairs. The article begins with a theoretical discussion of the legal
status of international law: “Is it Law or isn’t it?” This is a piece of out-
dated dogma, for it is based on a restrictive definition of the notion of
“law” or legal order. The author then proceeds to base his argument on
the United States Supreme Court’s application of the “last-in-time rule”,
under which courts must apply a domestic statute in preference to a prior
treaty, from which the legislator is deemed to have derogated. This con-
stitutional doctrine is presented in far too summary a manner, failing to
mention the efforts of jurisprudence to reconcile two contradictory
sources of law. One means employed to this end is the principle that
courts should seek to interpret a statute conflicting with a directly appli-
cable provision of an international treaty in a manner rendering it com-
patible with the treaty?!. Moreover, the status of international law within
a State’s domestic order tells us nothing about the nature of the legal
order governing inter-State relations. Finally, the dismissal of interna-
tional law as not being “law”, which is based inter alia on the proposition
that no court exists capable of settling inter-State disputes, is contra-
dicted by the circumstances of the present case: there is an international
court, and it has clearly ruled on the respect owed to the prohibition of
the use of force.

32. In reality, this “doctrine” defended by Mr. Bolton is a grievously
outdated one. It seeks, without daring to say so, to restore to the agenda
the teachings of Hobbes and Spinoza.

The two leading works of Thomas Hobbes (1588-1679) are: De Cive
(1642) and Leviathan, seu de civitate ecclesiastica et civili (1651). The
author has a conception of natural law diametrically opposed to that
offered by scholastic tradition. The state of nature (status naturae) is the
site of an unending struggle, bellum omnium in omnes (De Cive, I, XII),
which the establishment of civil society has failed to bring to an end. The
modern State has succeeded in imposing peace thanks to the power
exercised by its rulers, the citizens having agreed to give up their natural
freedom in return for peace. States as between themselves remain in this
state of nature. The strongest dominates by conquest, subjecting other
peoples to its rule.

“To this war of every man, against every man, this also is conse-
quent; that nothing can be unjust. The notions of right and wrong,
justice and injustice have there no place. Where there is no common
power, there is no law: where no law, no injustice. Force, and fraud,
are in war the two cardinal virtues. Justice, and injustice are none of
the faculties neither of the body, nor mind. If they were, they might
be in a man that were alone in the world, as well as his senses, and

21 Since Murray v. The Charming Betsy, 6 US (2 Cranch) 64 (1804), pp. 117-118.

231
OIL PLATFORMS (SEP. OP. RIGAUX) 389

passions. They are qualities, that relate to men in society, not in soli-
tude. It is consequent also to the same condition, that there be no
propriety no dominion, no mine and thine distinct; but only that to
be every man’s, that he can get: and for so long, as he can keep it.
And thus much for the ill condition, which man by mere nature is
actually placed in; though with a possibility to come out of it, con-
sisting partly in the passions, partly in his reason.” (Leviathan,
Chap. XIII.)

“The liberty, whereof there is so frequent and honourable men-
tion, in the histories, and philosophy of the ancient Greeks, and
Romans, and in the writings, and discourse of those that from them
have received all their learning in the politics, is not the liberty of
particular men; but the liberty of the commonwealth: which is the
same with that which every man then should have, if there were no
civil laws, nor commonwealth at all. And the effects of it also be the
same. For as amongst masterless men, there is perpetual war, of
every man against his neighbour; no inheritance, to transmit to the
son, nor to expect from the father; no propriety of goods, or lands;
no security; but a full and absolute liberty in every particular man: so
in states, and commonwealths not dependent on one another, every
commonwealth, not every man, has an absolute liberty, to do what it
shall judge, that is to say, what that man, or assembly that represen-
teth it, shall judge most conducing to their benefit. But withal, they
live in the condition of a perpetual war, and upon the confines of
battle, with their frontiers armed, and cannons planted against their
neighbours round about.” (Leviathan, Chap. XXI.)??

Since the community of States lacks any superior power, any govern-
ing authority, the notions of justice and injustice can have no currency
there, being the product of a duly constituted society. Hobbes’s view of
international law was a voluntarist one: jus gentium is totally distinct
from natural law, the law of nature (rather than natural law) being that
of the triumph of force, of the domination of the weak by the strong.

We find an echo of certain of Hobbes’s ideas in Spinoza (1632-1677).
According to the Tractatus politicus and the Tractatus theologico-politi-
cus, published posthumously in 1677, the irresistible power of the supreme
authority (summa potestas) within the State is reflected in the State’s
external sovereignty.

22 Thomas Hobbes, Leviathan, or the Matter, Forme and Power of A Commonwealth
Ecclesiasticall and Civil, ed. Michael Oakeshott, 1946.

232
OIL PLATFORMS (SEP. OP. RIGAUX) 390

Hence, if a nation wishes to make war on another nation and is
prepared to have recourse to any appropriate means in order to force
that nation into dependency, it is perfectly entitled to attack it. For
all it requires, in order to find itself in a state of war, is to have the will
to do so (Tractatus politicus, Chap. II, para. 13).

33. The legal régime to which the United Nations Charter has sub-
jected the use of force between States must be regarded as the “funda-
mental norm” (Grundnorm) of international law in Kelsen’s sense of the
term. The principal judicial organ of the United Nations should have
taken the opportunity offered it by the present case to recall that
Article 2, paragraph 4, of the Charter is a provision possessing binding
force. The Court had jurisdiction to do so, for the two actions of which
it was seised both had as their subject-matter a claim based on a use
of force alleged to have been unlawful, the focus of the dispute being
the nature and extent of the right of self-defence.

(Signed) François RIGAUX.

233


               DECLARATION BY JUDGE RANJEVA

 ranslation]

Notion of law prevailing at the time — Relations between Johor and the Brit-
 Crown — Notion of non-“civilized” “nation” — Hence : lack of valid acqui-
ence by the Sultan of Johor — Malaysia’s conduct in the post-colonial
iod — Transfer of title.

1. The present Judgment raises no substantive objection : Malaysia’s
memorial historic title to Pedra Branca/Pulau Batu Puteh has received
equate consideration and the exercise of sovereignty over that island
 Singapore on the date of the Court’s Judgment cannot seriously be
estioned. On the other hand, the analysis and characterization of the
ssage of sovereignty from Johor to the British Crown and, subse-
ently, Singapore, are not convincing. But as this declaration refers to
 approach which the Parties did not adopt, the general outlines of this
ernative basis need to be set out here.

 2. The Judgment could rightly not be founded on an agreement at
hose expiry Johor would tacitly have consented to the passage of sov-
eignty to the British Crown, in the absence of any relevant proof. In the
 sence of the probatio probatissima, failing agreement between the
 rties concerned and without any reference to the notion of acquisitive
escription, the Judgment concludes, in paragraph 276, that : “the rele-
 nt facts, including the conduct of the Parties . . . reflect a convergent
olution of the positions of the Parties regarding title to Pedra Branca”.
 is conclusion is set out as follows in paragraph 121 : “sovereignty over
 ritory might pass as a result of the failure of the State which has sov-
eignty to respond to conduct à titre de souverain of the other State”.
 e Judgment is based on the award by Max Huber in the Island of Pal-
as case, and on the Judgment of the Chamber in the Gulf of Maine
se. The failure to respond may perfectly well be tantamount to acqui-
cence following
   “from the fundamental principles of good faith and . . . equivalent to
   tacit recognition manifested by unilateral conduct which the other
   party may interpret as consent” (Delimitation of the Maritime Bound-
   ary in the Gulf of Maine Area (Canada/United States of America),
   Judgment, I.C.J. Reports 1984, p. 305, para. 130).

3. Acquiescence is presented as a title, in other words, a substantive
sis for the right of territorial sovereignty. In this case, the Judgment
cribes to Johor consent to the progressive transfer of the right to the

                                                                         95

 itish Power. This method of transfer of the title of sovereignty would
 ve benefited from further explanation for the Court’s analysis in this
se to be convincing. As the transfer of territorial sovereignty cannot be
esumed in international law, the Judgment cannot confine itself to
  nsposing traditional conceptual categories under judicial and arbitral
  isprudence. The Judgment reasons on the basis of the formal concepts
 sovereignty and conventional liberty. On analysis, it is not certain that
 s approach is relevant, for in the case law cited, the context is directly
 ernational relations : United States of America/Spain in the Island of
 lmas case ; the United States of America and Canada in the Gulf of
aine case. Acquiescence in the area of territorial claims might also be
  tanced in connection with the conduct of the Siamese authorities
emple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment,
C.J. Reports 1962, p. 23) or with the protest by Honduras (Land, Island
d Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua inter-
ning), Judgment, I.C.J. Reports 1992, p. 577). In all these precedents,
e notion of title is used ambiguously, as it refers to the means of the
  nsfer of sovereignty, but not to the actual cause of this legal process.
 ansfer of sovereignty may only result from two factors : either through
  equivalent act, a hypothesis rightly referred to in paragraph 120, or by
e emergence of a superior legal title. Where the second hypothesis does
 t arise, it is hard to see how Johor’s title could have been extinguished
thout its consent ; all the more so as the Judgment relies on the pre-
mption of consent in order to conclude that sovereignty was transferred.

4. The Judgment seeks to rehabilitate the history of peoples and
tions by constructing its edifice on the axiomatic bases of international
w, a praiseworthy intention from the angle of history and the demands
 cultural diversity. But this reduction of the reality of the facts to suit
e interpretation of the concepts and techniques of international law
 es not tally with the legal and political order which prevailed when
vereignty was transferred.
5. A glance at the history of the law of international relations reveals
at there have been double standards in the application of the applicable
 rms. In the circumstances of the case, relations between the United
ngdom and the Netherlands are governed by public international law,
thout consideration of the territorial object of the agreement. The pur-
 se of the Anglo-Dutch Treaty of 1824 was the apportionment of
heres of influence between the two colonial Powers. In the policy of
pansion and the practice of colonial apportionment, these agreements
ralded the advent of the international colonial order. Relations between
e sovereign colonial Powers fell within the domain of international law.
On the other hand, it is difficult to assert that relations between the
nited Kingdom and the Sultanate of Johor were established on the
sis of relations between sovereign, equal subjects of international law.
 view of the characteristics of colonial expansion, it is difficult to avoid

                                                                         96

course to the historical-critical method. To begin with, in the nine-
 nth century, agreements signed between the European Powers and the
digenous political authorities were not recognized as international trea-
s. The award in the Delagoa Bay case is the acknowledged authority
   this issue (Delagoa Bay (Great Britain/Portugal), S.A. MacMahon,
  July 1875, in A. de Lapradelle and N. Politis, Recueil des arbitrages
 ernationaux, Vol. III, 1954, p. 633). The text of Article 38 (c) of the
atute of the Permanent Court, and then of the present Court, still con-
 ns traces of this philosophy. A contrario, it recognizes the possibility of
e existence in law of non-civilized nations who would have no access to
 ernational law. Also, the sovereignty granted to indigenous authorities
d not have the same significance as that in relations between colonial
 wers : sovereignty could not be held against the latter. The indigenous
 thority had but one right and one obligation, to submit to the will of
e colonial Power, whereas for the colonial Powers vis-à-vis the indig-
ous authorities, it was not certain that pacta sunt servanda. This was
e characteristic of classical colonial international law : public interna-
 nal law in relations between European Powers, and unequal domina-
 n in relations with the indigenous authorities. Hence the Sultan of
hor could not express the slightest opposition to a decision by the Brit-
 . The consultation of the Sultan of Johor, of which the Judgment
akes so much, was not the expression of a request for legal approval,
 t an administrative measure situated somewhere between courteously
 orming him and inviting him to endorse unhesitatingly and unreserv-
ly the proposals of the colonial authority. Conscious as he was of the
 licy of colonial expansion, the Sultan had no alternative but to pursue
policy of evasion : to contemplate the machinations of the colonial
 wer as a passive and impotent spectator. Great Britain thus gradually
 d discreetly substituted the exercise of its territorial colonial authority
r the power of running and administering the navigation and maritime
 ety service on Pedra Branca/Pulau Batu Puteh, accepted by the Sultan
 Johor.
Thus it is surreal to speak of the international transfer of title by acqui-
cence when, according to the rules and practice of the colonial Powers,
was the exercising of colonial territorial title. To follow the reasoning
  the Judgment, requiring Malaysia to provide proof of its refusal to
cept the act progressively performed by the United Kingdom means
king it to organize a war for the liberation of Pedra Branca/Pulau Batu
 teh ! The exercising of the territorial title by the United Kingdom was
 t legitimate under international law, but is a fact of colonial law, which
ganized the map of the world and apportioned all its areas.
In the specific circumstances of the case, Johor could not be blamed for
  silence, even if it is established that proof of the acceptance of the ces-
 n of the island exists.
6. But where relations between Malaysia and Singapore on the Pedra
 anca/Pulau Batu Puteh question are concerned, international law redis-
vers its titles. Johor’s reply to the request for information from the

                                                                          97

olonial Secretary of Singapore may also be considered unimportant in
 ms of establishing Johor’s acquiescence to the transfer of territorial
 e. Johor’s reply is not an answer to the question raised, since Singa-
 re took no decision whatever following Johor’s assertion. Yet one cer-
 nty remains : the problem of the territorial title over the island which
rms the subject of the dispute. Singapore’s succession to the United
 ngdom’s rights also obliged it to take over the practices of its predeces-
r. In law, and during the colonial period, silence could not be held
 ainst Malaysia. But since the accession of the Parties to independence,
alaysia cannot rely on its indifference and silence in the light of con-
 ct that simply and irrebuttably presumes Singapore’s sovereignty over
 dra Branca/Pulau Batu Puteh.

7. In conclusion, through succession to the colonial territorial title,
ngapore has sovereignty over Pedra Branca/Pulau Batu Puteh.

                                        (Signed) Raymond RANJEVA.

                                                                        98