324

SEPARATE OPINION OF JUDGE SIMMA

Matters relating to United States use of force are at the heart of the case,
therefore the approach of dealing with Article XX before turning to Article X of
the 1955 Treaty is acceptable — The Court’s position regarding the United
States attacks on the oil platforms, although correct as such, is marked through-
out by inappropriate self-restraint —- While hostile military action not reaching
the threshold of an “armed attack” within the meaning of Article 51 of the
United Nations Charter may be countered by proportionate and immediate
defensive measures equally of a military character, the United States actions did
not qualify as such proportionate counter-measures — The Court’s treatment of
Article X on “freedom of commerce” between the territories of the Parties fol-
lows a step-by-step approach which is correct up to a certain point but then
takes turns in two wrong directions: first, the platforms attacked in October
1987 did not lose protection under Article X through being temporarily inopera-
tive because the freedom under the Treaty embraces also the possibility of com-
merce in the future; secondly, the indirect commerce in Iranian oil going on
during the time of the United States embargo is also protected by the Treaty —
The Court’s finding on the United States counter-claim is profoundly inadequate
particularly with regard to the so-called “generic” counter-claim which should
have been upheld — The problems of attribution and causality posed by the
existence of several tortfeasors in the case could have been solved by recourse
to a general principle of joint-and-several responsibility recognized by major
domestic legal systems — Neither would the “indispensable-third-party” doctrine
have stood in the way of declaring Iran responsible for breaches of Article X.

I have voted in favour of the first part of the dispositif of the present
Judgment with great hesitation. In fact, I see myself in a position to con-
cur — in principle — with the Court’s treatment of only one of the two
issues dealt with there, namely that of the alleged security interests of the
United States measured against the international law on self-defence. As
to the remaining parts of the dispositif, neither can I agree with the
Court’s decision that the United States attacks on the Iranian oil plat-
forms ultimately did not infringe upon Iran’s treaty right to respect for its
freedom of commerce with the United States; nor do I consider that the
way in which the Court disposed of the so-called “generic” counter-claim
of the United States is correct. In my view, this counter-claim ought to
have been upheld. Regarding the part of the dispositif devoted to this
counter-claim, I thus had no choice but to dissent.

The reason why I have not done so also with regard to the first part of

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the dispositif, even though, as I have just pointed out, I concur with the
Court’s decisions on only the first of the two issues decided therein ', lies
in a consideration of Rechtspolitik: 1 welcome that the Court has taken
the opportunity, offered by United States reliance on Article XX of the
1955 Treaty, to state its view on the legal limits on the use of force at
a moment when these limits find themselves under the greatest stress.
Although I am of the view that the Court has fulfilled what I consider to
be its duty in this regard with inappropriate restraint, I do not want to
dissociate myself from what after all does result in a confirmation, albeit
too hesitant, of the jus cogens of the United Nations Charter.

I. IRAN’s CLAIMS

A. Introduction

1. As paragraph 37 of the Judgment pertinently reminds us, the origi-
nal dispute between the Parties to the present case related to the legality
under the international law on the use of force, that is to say, under the
Charter of the United Nations and customary international law, of the
attacks of the United States against the oil platforms. Paragraph 37 also
points out that, at the time of those attacks, neither Party made any ref-
erence to the 1955 Treaty of Amity. When subsequently that Treaty was
brought into play by Iran as a basis for the Court’s jurisdiction, Iran
attempted to ground jurisdiction not only in Article X, paragraph 1, but
also Articles I and IV, paragraph 1, of the Treaty. In its 1996 Judgment
on the United States Preliminary Objection the Court accepted only
Article X, paragraph 1, as the basis of its jurisdiction? — which might
seem surprising in the face of Article I of the Treaty which reads that
“It]here shall be firm and enduring peace and sincere friendship between
the United States . . . and Iran”. In the Court’s opinion, however,
Article I was not to be interpreted as incorporating into the Treaty all of
the provisions of international law concerning peaceful and friendly
relations. Rather, this Article would have to be regarded as fixing an
objective in the light of which the other treaty provisions are to be
interpreted and applied?. Thus, the Court concluded, Article I was “not
without legal significance” for the interpretation of other Treaty pro-
visions relevant in the case, in particular that of Article X, paragraph 1‘.

' As well as the reason why I prefer to label the present opinion a “separate” and not a
“dissenting” opinion despite disagreeing with the majority of the Court’s main findings in
the case.

2 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, 1 C.J. Reports 1996 (II), at pp. 817 ff., 821.

3 Ibid., p. 814, para. 28.

4 Ibid., p. 815, para. 31.

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In effect, the relevance ultimately assigned to Article I by the present Judg-
ment can only be considered minimal*.

2. Be this as it may, the 1996 Judgment did decide that “[mJatters
relating to the use of force are . .. not per se excluded from the reach of
the Treaty of 1955”°. As a result, the rather businesslike Article X, para-
graph 1, on freedom of commerce’ now serves as the proverbial eye of
the needle through which the Court’s treatment of the question of the use
of armed force by the United States has to be squeezed. In effect, this
needle’s eye has now been made even smaller, impenetrable in the present
case, in the Court’s decision on the merits of Iran’s claim of violation of
Article X, paragraph 1.

3. From the viewpoint of legal policy and political relevance, however,
there can be no doubt that in the present case the emphasis is squarely on
the question of the legality vel non of the use of armed force by the
United States against the oil platforms. I therefore accept the Judgment’s
approach of dealing with Article XX, paragraph 1 (d), of the Treaty
before turning to Article X, paragraph 1, not only for the more technical
reasons advanced in the Judgment — all of which I consider convin-
cing —-, but also out of this broader consideration. For the same reason,
I see no problem in the fact that the part of the Judgment devoted to
the issue of United States use of armed force is considerably larger than
that dealing with the question of the violation of the Treaty as such.

4. Returning to the order in which these matters are taken up in the
Judgment, the United States itself has argued that there was no compel-
ling reason for the Court to examine the question of a breach of Article X
before turning to the question under Article XX. According to the
Respondent, therefore the order in which the issues are to be treated is a
matter for the discretion of the Court®. The manner in which the Court
has exercised such discretion thus appears to me to be indisputable.

B. Article XX, Paragraph I (d)

5. In accordance with what I stated at the outset, the reason why I
decided to vote in favour of the first part of the Judgment’s dispositif is

> Article I is only referred to in the Judgment once (in paragraph 41) to support a con-
clusion which I consider cogent for rather more obvious reasons, namely that Article XX,
paragraph 1 (d), of the Treaty (on which infra) must not be read as allowing any use of
force between the parties that is not permissible, or justified, under the relevant rules of
international law. Paragraph 41 considers the opposite view “hardly consistent with
Article F”.

§ LC J. Reports 1996 (IT), p. 812, para. 21.
7 Respectively freedom of navigation; see infra on the United States counter-claim.

8 CR 2003/11, p. 16; CR 2003/12, p. 14.

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that I consider it of utmost importance, and a matter of principle, for the
Court to pronounce itself on questions of the threat or use of force in
international relations whenever it is given the opportunity to do so. In
this regard, the desirable standard of vigour and clarity was set already
in the Corfu Channel case where the Court condemned a right to self-
help by armed force claimed by the United Kingdom

“as the manifestation of a policy of force, such as has, in the past,
given rise to most serious abuses and such as cannot, whatever be
the present defects in international organization, find a place in
international law” ?.

Unfortunately, in the sombre light of developments over the 50 years that
have passed since the Corfu Channel case, but more particularly in the
recent past, this statement of the Court shows traits of a prophecy.

6. My agreement with the present position of the Court in principle
does not however keep me from criticizing the Judgment for what I
consider the half-heartedness of the manner in which it deals with the
question of the use of force.

I recognize of course that there are valid legal reasons for the Court to
keep what has to be said on the legality of United States military actions
against the oil platforms within the confines of the text of Article XX,
paragraph 1 (d), of the Treaty. In fact, my criticism of the Court’s treat-
ment of the issues arising under that provision does not stem from any
disagreement with what the text of the Judgment is saying. Rather, what
concerns me is what the Court has decided not to say. I find it regrettable
that the Court has not mustered the courage of restating, and thus re-
confirming, more fully fundamental principles of the law of the United
Nations as well as customary international law (principles that in my
view are of the nature of jus cogens) on the use of force, or rather the
prohibition on armed force, in a context and at a time when such a recon-
firmation is called for with the greatest urgency. I accept of course that,
since its jurisdiction is limited to the bases furnished by the 1955 Treaty,
it would not have been possible for the Court to go as far as stating in the
dispositif of its Judgment that, since the United States attacks on the oil
platforms involved a use of armed force that cannot be justified as self-
defence, these attacks must not only, for reasons of their own, be found
not to have been necessary to protect the essential security interests of the
United States within the meaning of Article XX of the Treaty; they must
also be found in breach of Article 2 (4) of the United Nations Charter.
What the Court could have done, without neglecting any jurisdictional
bounds as I see them, is to restate the backbone of the Charter law on use
of force by way of strong, unequivocal obiter dicta. Everybody will be

9 Corfu Channel, Merits, Judgment, I C.J. Reports 1949, p. 35.

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aware of the current crisis of the United Nations system of maintenance
of peace and security, of which Articles 2 (4) and 51 are cornerstones. We
currently find ourselves at the outset of an extremely controversial debate
on the further viability of the limits on unilateral military force estab-
lished by the United Nations Charter !°. In this debate, “supplied” with a
case allowing it to do so, the Court ought to take every opportunity to
secure that the voice of the law of the Charter rise above the current
cacophony. After all, the International Court of Justice is not an isolated
arbitral tribunal or some regional institution but the principal judicial
organ of the United Nations. What we cannot but see outside the court-
room is that, more and more, legal justification of use of force within the
system of the United Nations Charter is discarded even as a fig leaf, while
an increasing number of writers appear to prepare for the outright
funeral of international legal limitations on the use of force. If such
voices are an indication of the direction in which legal-political discourse
on use of force not authorized by the Charter might move, do we need
more to realize that for the Court to speak up as clearly and comprehen-
sively as possible on that issue is never more urgent than today? In effect,
what the Court has decided to say — or, rather, not to say — in the
present Judgment is an exercise in inappropriate self-restraint.

7. Paragraph 78 of the Judgment concludes that the United States
attacks against the oil platforms cannot be justified, under Article XX,
paragraph 1 (d), of the Treaty of 1955, as being measures necessary to
protect the essential security interests of the United States, since those
actions constituted recourse to armed force not qualifying as acts of self-
defence under “international.law. on the question” (see infra), and thus
did not fall within the category of measures that could be contemplated,
“upon its correct interpretation”, by the said provision of the Treaty. I
admit of course that this passage-can be read — indeed, it must be read
— as stating by way of implication that the United States actions, con-
stituting unilateral use of “armed' force not qualifying, under interna-
tional law . . . as acts of self-defence”, were therefore in breach of
Article 2 (4) of the United Nations Charter. Tertium non datur. It is a
great pity however that the reasoning of the Court does not draw this
necessary conclusion, and thus strengthen the Charter prohibition on the
threat or use of armed force, in straightforward, terms. To repeat, I can-
not see how in doing so the Court would have gone beyond the bounds

10 Cf. Secretary-General Kofi Annan’s Address to the General Assembly of 23 Septem-
ber 2003, General Assembly, 7th Plenary Meeting, 23 September 2003, A/58/PV.7, at p. 3.

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of its jurisdiction. The text of the Judgment should have included an
unambiguous statement to the effect that the United States military
operations against the oil platforms, since they were not conducted in jus-
tified self-defence against an armed attack by Iran, must be considered
breaches of the prohibition on the use of military force enshrined in the
United Nations Charter and in customary international law.

8. Instead of doing so, the text adopted by the majority of the Court
explains what is to be understood by the “international law on the ques-
tion” (para. 78) in a way that comes dangerously close to creating the
impression that the Court attempts to conceal the law of the Charter
rather than to emphasize it: it speaks throughout its extensive debate on
the United States attacks in light of Article XX of “international law on
the question” (i.e., the question of the use of force), “international law
applicable in the case” or “ the relevant rules of international law”. What
these relevant, applicable etc. rules actually are is spelled out only once,
and then in the subordinate part of a sentence: in paragraph 42, the
Judgment states that its jurisdiction under Article X XI, paragraph 2, of
the 1955 Treaty to decide any question of interpretation or application of
(inter alia) Article XX, paragraph 1 (d), of the Treaty extends, where
appropriate, to the determination whether action alleged to be justified
under that paragraph was or was not an unlawful use of force “by refer-
ence to international law applicable to this question, that is to say, the
provisions of the Charter of the United Nations and customary interna-
tional law” (emphasis added). Again: nowhere else in the part of the
Judgment dealing with the United States attacks’! is the United Nations
Charter expressly mentioned. It is difficult to view such hiding of the law
of the Charter behind the veil of terms like those that I have quoted
above as a mere matter of style; it could unfortunately also be under-
stood as a most unwelcome downgrading of the relevance and impor-
tance of the rules of the United Nations Charter on the use of force — as
I just said, precisely at a time when the effectiveness of these rules is being
challenged to the breaking-point.

Having said this, I turn to a number of more specific issues raised by
the text of the Judgment devoted to Article XX, paragraph 1 (d), of the
1955 Treaty.

9. I agree with the Judgment’s understanding of the relationship
between Article XX, paragraph 1 (d), and the limits of general interna-
tional law on unilateral use of force, according to which — in the words
of a former President of this Court — this Article “cannot have contem-

11 With the exception of a reference in paragraph 51 to Article 51 of the Charter as
determining the meaning of “armed attacks”.

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plated a measure which cannot, under general international law, be jus-
tified even as being part of an operation in legitimate self-defence” !?. The
Court, in paragraph 41 of the Judgment, thus accepts, and rightly so, the
principle according to which the provisions of any treaty have to be inter-
preted and applied in the light of the treaty law applicable between the
parties as well as of the rules of general international law “surrounding”
the treaty !. If these general rules of international law are of a peremp-
tory nature, as they undeniably are in our case, then the principle of
interpretation just mentioned turns into a legally insurmountable limit to
permissible treaty interpretation.

10. The scope of measures taken to protect the essential security inter-
ests of a party according to Article XX, paragraph 1 (d), is wider than
that of measures taken in self-defence. There are many measures that a
party may take on that basis, like import bans, which have nothing to do
with the notion of self-defence. On the other hand, any measure taken in
self-defence would equally constitute a measure necessary to protect
essential security interests within the meaning of the 1955 Treaty. How-
ever, only measures which fulfil all of the conditions required for the
exercise of the right of self-defence can qualify as action that is permis-
sible under Article XX, paragraph 1 (d). In the present case, to interpret
Article XX, paragraph 1 (d), more “liberally” would be both absurd and
destructive: absurd, because our provision could then be read to mean
that parties to treaties of, among other things, “amity” could be allowed
to contract out of the most fundamental of all obligations under present
international law, namely the prohibition on the threat or use of force —
an obligation which States owe any other State even if they cannot mus-
ter any degree of “amity” for each other. Furthermore, such a reading of
Article XX, paragraph 1 (d), would be destructive because it would
allow a mutual “emancipation” from some of the most cogent of all rules
of international law.

11. I also strongly subscribe to the view of the Court expressed in the
Judgment’s paragraph 73 according to which the requirement of inter-
national law that action taken avowedly in self-defence must have been
necessary for that purpose, is strict and objective, leaving no room for any
“measure of discretion”. In my view, this is also due to Article I of the
1955 Treaty (“There shall be firm and enduring peace and sincere friend-

12 Dissenting opinion of Judge Sir Robert Jennings, Military and Paramilitary Activi-
ties in and against Nicaragua (Nicaragua v. United States of America), Merits, Judg-
ment, 1. C.J. Reports 1986, p. 541. Sir Robert referred to the exact counterpart of
Article XX, paragraph 1 (d), in the FNC Treaty between the United States and Nicara-
gua. The remaining doubts in Sir Robert’s mind (cf. ibid.) were, in my view, unnecessary.

'3 Article 31, paragraph 3 (c), of the 1969 Vienna Convention on the Law of Treaties.

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ship between the United States . . . and Iran”) which, according to the
Court’s Judgment of 1996 on the Preliminary Objection of the United
States, must be regarded as fixing an objective, in the light of which the
other Treaty provisions are to be interpreted and applied!*. The least
which this objective must lead to is a particularly high demand on the
standard of “necessity” embodied in Article XX, paragraph 1 (d); every
one of the words used in the text of that provision must be carefully
weighed and given its full import. Hence, in order to relieve a party from
its obligation under Article X, paragraph 1, of the Treaty, a measure
must, first, be necessary, not just desirable or useful to protect that
State’s essential security interests. Second, the measure must be necessary
to actually protect these interests, not just to advance or support them.
Third, the measure must be necessary to protect the security interests
of the State taking it. Fourth, the security interests destined to be pro-
tected must be essential. And last, of course, the measure must be con-
cerned with the security of the Respondent itself. Since Article XX,
paragraph 1 (d), of the 1955 Treaty is the exception to the rule of free-
dom of commerce and navigation enshrined in the same Treaty, and,
as stated, in light of Article I, all these terms have to be subjected to
extremely careful scrutiny.

12. I am less satisfied with the argumentation used in the Judgment by
which the Court arrives at the — correct -— conclusion that, since the
Iranian mine, gunboat or helicopter attacks on United States shipping
did not amount to an “armed attack” within the meaning of Article 51 of
the Charter, the United States actions cannot be justified as recourse to
self-defence under that provision. The text of paragraph 51 of the Judg-
ment might create the impression that, if offensive military actions remain
below the — considerably high — threshold of Article 51 of the Charter,
the victim of such actions does not have the right to resort to — strictly
proportionate — defensive measures equally of a military nature. What
the present Judgment follows at this point are some of the less fortunate
statements in the Court’s Nicaragua Judgment of 1986 !$. In my view, the
permissibility of strictly defensive military action taken against attacks of
the type involving, for example, the Sea Isle City or the Samuel B. Rob-
erts cannot be denied. What we see in such instances is an unlawful use of
force “short of” an armed attack (“agression armée”) within the meaning
of Article 51, as indeed “the most grave form of the use of force” !$.
Against such smaller-scale use of force, defensive action — by force also

'4 ZCJ. Reports 1996 (IT), p. 814, para. 28.

15 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I C.J. Reports 1986, e.g., p. 101, para. 191; p. 103,
para. 194; p. 127, para. 249.

16 Jbid., p. 101, para. 194.

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“short of” Article 51 — is to be regarded as lawful!’. In other words, I
would suggest a distinction between (full-scale) self-defence within the
meaning of Article 51 against an “armed attack” within the meaning of
the same Charter provision on the one hand and, on the other, the case of
hostile action, for instance against individual ships, below the level of
Article 51, justifying proportionate defensive measures on the part of the
victim, equally short of the quality and quantity of action in self-defence
expressly reserved in the United Nations Charter. Here I see a certain
analogy with the Nicaragua case, where the Court denied that the hostile
activities undertaken by Nicaragua against El Salvador amounted to an
“armed attack” within the meaning of Article 51, that would have given
the United States a right to engage in collective self-defence, and instead
qualified these activities as illegal military intervention. What the Court
did consider permissible against such unlawful acts were “proportionate
counter-measures”, but only those resorted to by the immediate victim.
The Court said:

“While an armed attack would give rise to an entitlement to col-
lective self-defence, a use of force of a lesser degree of gravity

cannot . . . produce any entitlement to take collective counter-
measures involving the use of force. The acts of which Nicaragua is
accused ... could only have justified proportionate counter-measures

on the part of the State which had been the victim of these acts, ...”'8

Hence, the Court drew a distinction between measures taken in legitimate
self-defence on the basis of Article 51 of the Charter and lower-level,
smaller-scale proportionate counter-measures which do not need to be
based on that provision. In view of the context of the Court’s above
dictum, by such proportionate counter-measures the Court cannot have
understood mere pacific reprisals, more recently, and also in the termi-
nology used by the International Law Commission, called “counter-
measures” !°,. Rather, in the circumstances of the Nicaragua case, the
Court can only have meant what I have just referred to as defensive
military action “short of” full-scale self-defence. Unfortunately, the
present Judgment decided not to address this issue at all.

17 T have not developed this view ad hoc, under the impact of the present case, but as
long as 20 years ago; see A. Verdross and B. Simma, Universelles Vülkerrecht. Theorie
und Praxis, 3rd ed., 1984, p. 240, para. 472.

18 TCU. Reports 1986, p. 127, para. 249.

19 Cf. Articles 49-54 of the ILC’s text on the Responsibility of States for Internationally
Wrongful Acts, adopted in 2001; cf. International Law Commission, Report on the Work
of its Fifty-Third Session, Official Records of the General Assembly, Fifty-sixth Session,
Supplement No. 10 (A/56/10). The Commission strictly excluded from its concept
of “counter-measures” any such measures amounting to a threat or use of force; cf.
Article 50, para. 1 (a).

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13. To sum up my view on the use of force/self-defence aspects of the
present case, there are two levels to be distinguished: there is, first, the
level of “armed attacks” in the substantial, massive sense of amounting to
“une agression armée”, to quote the French authentic text of Article SI.
Against such armed attacks, self-defence in its not infinite, but still
considerable, variety would be justified. But we may encounter also a
lower level of hostile military action, not reaching the threshold of an
“armed attack” within the meaning of Article 51 of the United Nations
Charter. Against such hostile acts, a State may of course defend itself,
but only within a more limited range and quality of responses (the main
difference being that the possibility of collective self-defence does not
arise, cf. Nicaragua) and bound to necessity, proportionality and imme-
diacy in time in a particularly strict way.

14. In the present case, I agree with the Court that neither the broad
pattern of unlawful use of force by Iran against United States vessels and
their naval escorts nor the two specific attacks against the Sea Isle City
and the Samuel B. Roberts amounted to an “armed attack” within the
meaning of Article 51 of the United Nations Charter. These hostile
activities could, as I have pointed out, have been countered immediately
by “proportionate counter-measures” also of a military nature, consisting
of defensive measures designed to eliminate the specific source of the
threat or harm to affected ships in, and at the time of, the specific inci-
dents. The Iranian oil platforms and their possible non-commercial activi-
ties during the Gulf War were too remote from these incidents (in every
sense of this word) to provide a legitimate target for counter-measures
within the meaning given to this term in the Nicaragua Judgment. Also,
there is in the international law on the use of force no “qualitative jump”
from iterative activities remaining below the threshold of Article 51 of the
Charter to the type of “armed attack” envisaged there. However, as I
read the facts of the present case, there was on the part of Iran no itera-
tive or continued pattern of armed attacks against United States ships to
begin with. Attacks on ships flying foreign flags could not be relied on by
the United States in order to trigger Article 51 action. Furthermore, not
a single Security Council resolution adopted at the material time deter-
mined that it was Iran (alone) which had engaged in “armed attacks”
against neutral shipping in the Gulf.

15. But even if we assume, for the sake of discussion, that the United
States had been the victim of an armed attack by Iran within the meaning
of Article 51 of the United Nations Charter, the United States attacks on
the oil platforms would not qualify as legitimate acts of self-defence
under that provision. The United States actions fulfilled neither the con-
dition of necessity nor that of proportionality. In the light of the material
before the Court relating to the political and military considerations on

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the part of United States authorities that led to the attacks on the oil
platforms, the selection of these platforms as targets was made on the
basis of decisions by military commanders which may well be considered
state of the art from the viewpoint of military efficiency, etc., but to
which the notion of “self-defence” was quite foreign. It is possible, indeed
probable, that some monitoring of United States as well as any other
neutral shipping had actually taken place from aboard the oil platforms.
Obviously this was a nuisance to United States military decision-makers.
The United States authorities might also have been right in assuming a
connection between information flowing, as it were, from the oil plat-
forms and the harassing of neutral shipping in the Gulf. Thus, as I see it,
either following the incidents involving the Sea Isle City and the Samuel
B. Roberts, the United States military considered that enough was enough,
and thus decided to neutralize the oil platforms, or, rather, the United
States used these two incidents to teach Iran a broader lesson. The
material put before the Court by the United States contains several
more or less convincing reasons as to why it was the oil platforms and
not some other military targets that were chosen for the purpose of a
“reply” to the specific incidents involving the Sea Isle City and the
Samuel B. Roberts, respectively the broader pattern of unlawful force
engaged in by Iran. But nowhere in these materials do we encounter any
trace of the considerations that an international lawyer would regard
as necessary in order to justify action taken in self-defence.

16. I arrive at the conclusion that the United States military actions
against the oil platforms were not of the defensive nature required both
by Article 51 of the United Nations Charter and the general international
law governing “proportionate counter-measures”, to refer again to the
Nicaragua Court’s tantalizing phrase. As I interpret the law on the limits
of unilateral use of armed force as it has evolved since 1945, there is no
way to regard such actions as lawful or justified.

C. Article X, Paragraph 1

17. With regard to the question whether the United States attacks on
the oil platforms constitute a breach of Article X, paragraph 1, of the
1955 Treaty, the Judgment follows a step-by-step approach with which I
am able to concur throughout several of its argumentative stages. For
instance, I agree with the statement of the Court in paragraph 82 accord-
ing to which it is oil exports from Iran to the United States that are rele-
vant to the case, not such exports in general. In the same paragraph the
Court rightly disposes of the United States argument calling for a distinc-
tion between oil produced on Iranian land territory or in the territorial
sea of Iran, on the one hand, and oil produced on the Iranian continental
shelf, on the other.

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18. I also agree with the gist of paragraph 89 of the Judgment, in
which the Court considers that where a State destroys another State’s
means of production and transport of goods destined for export, or
means ancillary or pertaining to such production or transport, there is an
interference with freedom of international commerce being carried on by
those means at that time. However, the Court relativizes this finding by
saying that this consideration is valid “in principle”. The Court thus
introduces a distinction between “freedom of international commerce” in
the Treaty sense (which it interprets later on) and the same freedom “in
principle”, that is, in some more general sense. This is the point from
which the present Judgment appears to begin its retreat from the Court’s
position of 1996 or, to return to the metaphor used above, to close again
the needle’s eye offered to Iran at that earlier stage. I will turn to this
change of course in more detail in paragraphs 21 ff. of my opinion.

19. In paragraph 91 of the Judgment, the Court reminds us that it
remains uncontested between the Parties that “oil exports from Iran to
the United States were — to some degree — ongoing at least until after
the destruction of the first set of oil platforms” on 19 October 1987. In
the same paragraph, the Court also points out that it is accepted by both
Parties that the oil or petroleum products reaching the United States
during this period were to some extent derived from crude oil produced
by the platforms that were later subjected to attack. Thus the Court
confirms that Iranian oil exports did right up to the beginning of the
United States oil embargo constitute “commerce between the territories
of the High Contracting Parties” within the meaning of Article X, para-
graph 1, of the 1955 Treaty.

20. I also draw attention to paragraph 96 of the Judgment, according
to which the Court sees no reason to question the view that, over the
period during which the United States embargo was in effect, petroleum
products that were derived in part from Iranian crude oil were reaching
the United States in considerable quantities. The Court continues:

“It could reasonably be argued that, had the platforms not been
attacked, some of the oil that they would have produced would have
been included in the consignments processed in Western Europe so
as to produce the petroleum products reaching the United States.”

21. Thus far, I can agree with the Court’s build-up of the arguments
concerning Article X, paragraph 1, of the Treaty. I have gone through
the relevant stages of these arguments in order to demonstrate more
clearly that from this point onwards the Court’s reasoning begins to be
flawed.

Where these flaws are summarized, as it were, and where therefore I
part company with the reasoning of the Judgment, is at paragraph 98
which encapsulates the two main findings of the Court relating to

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Article X, paragraph 1, of the Treaty. Paragraph 98 states that the
two United States attacks cannot be said to have infringed upon Iran’s
rights under Article X, paragraph 1, of the Treaty because

— at the time of the United States attack of 19 October 1987 on the
Reshadat platforms there was no commerce between the territories of
Iran and the United States in respect of oil produced by those plat-
forms and the Resalat platforms’°, inasmuch as those platforms were
under repair and inoperative;

— at the time of the attacks of 18 April 1988 on the Salman and Nasr
platforms, all direct commerce in oil between the territories of Iran
and the United States had been suspended in pursuance of the United
States embargo; consequently there was at that time no commerce
“between the territories” of the parties within the meaning of the
Treaty.

22. My disagreement with those two conclusions is as follows: as the
Permanent Court has observed in the Oscar Chinn case?', freedom of
trade consists in the right to engage in any commercial activity, such
activity comprising not only the purchase and sale of goods, but also
industry, and in particular the transport business. This observation was
the basis for the Court’s 1996 Judgment on the United States Preliminary
Objection to arrive at what it calls the “natural interpretation” according
to which the word “commerce” in Article X, paragraph 1, includes com-
mercial activities in general — not merely the immediate act of purchase
and sale, but also the ancillary activities integrally related to commerce??.
In conformity with this finding, the present Judgment includes the oil
platforms among the installations performing such ancillary activities.

23. What I cannot agree with is that those oil platforms that at the
time of the 1987 attacks were under repair could have lost the protection
rendered by Article X, paragraph 1, of the 1955 Treaty by the fact of
their thus being temporarily inoperative. First, according to Iran, the
Reshadat platforms were at the time of the United States attacks close to
being recommissioned??: according to Iran, it was contemplated that
production would resume several days before the United States embargo
set in. But even if the Reshadat platforms had taken up production again
at a later date, that is, during the period of the embargo, they would have

20 Paragraph 47 of the Judgment clarifies that, while the United States attack was made
solely on two platforms belonging to the Reshadat complex, it affected also the operation
of the Resalat complex.

21 Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65.

22 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, 1. C.J. Reports 1996 (IT), p. 819, para. 49.

23 Cf. paragraph 92 of the Judgment.

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participated in indirect commerce in oil (on which see infra), just like the
Salman and Nasr platforms.

24. Concerning the time needed for the repair of the platforms, I see
no reason to deny credibility to the Iranian claims as paragraph 93 of the
Judgment chooses to do: Iraqi attacks on the Reshadat platforms had
taken place way back in 1986 and I would not categorically exclude the
possibility that the United States, resolved to “teach Iran a lesson’, timed
its attacks precisely so as to destroy the installations as imminently before
they could resume their function as possible.

25. More importantly, however, I consider, first, that “freedom of
commerce” within the meaning of Article X, paragraph 1, of the Treaty
implies the coverage by that Treaty provision not only of actual, ongoing
commerce but of commerce on a continuing basis. Secondly, with Iran, I
read that freedom as embodying an undertaking by the Parties to refrain
from any action, not authorized by general international law or expressly
contemplated by the Treaty between them, which may be the source of
impediments on the other Party related to international commerce’‘.
Thus, according to this view, which I consider to be correct on this point,
the key issue is not damage to commerce in practice but the violation of
the freedom to engage in commerce, whether or not there actually was
any commerce going on at the time of the violation.

26. To conclude from this interpretation of the Treaty-based “freedom
of commerce” that one party to a treaty stipulating such freedom would
be obligated to enhance the other party’s capabilities to bring about
goods destined for such commerce would be absurd. But what certainly
follows from it is that the parties are prohibited to prevent each other’s
use of existing capabilities, particularly by destroying respective installa-
tions altogether. I see no other way to interpret the Court’s statement of
1996, according to which “any act which would impede that ‘freedom’ is
thereby prohibited” *°. Further, as a consequence of that — abstract, as it
were — understanding of freedom of commerce followed here, such free-
dom is not founded on momentary reality, it implies a possibility for the
future*°. Thus the destruction of the Reshadat installations did impair
the freedom of Iran to engage in commerce in oil also with the United
States, irrespective of the fact that at the time of the attacks the platforms
were out of order. Even if it had taken Iran longer to render the instal-
lations attacked in 1987 operational again, reducing them to ruins is to

24 Pellet, CR 2003/6, p. 28.

25 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I C.J. Reports 1996 (II), p. 819, para. 50.

26 Pellet, CR 2003/6, p. 33, paras. 68 and 70; p. 34, para. 73.

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me as obvious a violation of Iran’s freedom of commerce as it could pos-
sibly be. Hence, for a violation of Article X, paragraph 1, to occur, no oil
must have been flowing at the time of the United States attacks; it is suf-
ficient that the attacks impeded the possibility of such flow. To give an
example: let us assume that a person is suffering from a sore throat,
depriving her of her voice, the chances being however that the person
would be fully able to speak again in a few hours’ time. If somebody
gagged that person in order to prevent her from then speaking her mind,
would such action be seen as an infringement upon that person’s respec-
tive rights or not? The answer would certainly be yes. Thus I would ven-
ture to disagree with the view expressed in paragraph 92 of the Judgment
according to which “{iJnjury to potential for future commerce 1s . .. not
necessarily to be identified with injury to freedom of commerce, within
the meaning of Article X, paragraph 1, of the 1955 Treaty”.

27. From the view taken here, the exact time of the projected resump-
tion of operation of the oil platforms is not really relevant.

28. Further, I find myself in disagreement with the view expressed in
paragraph 98 of the Judgment that, since at the time of the attacks on the
Salman and Nasr platforms in April 1988, commerce in oil between the
territories of Iran and the United States had been suspended through the
United States President’s Executive Order 12613, these platforms had
lost protection under Article X, paragraph 1, of the 1955 Treaty as well.
Thus, in the view of the Court, even though it recognizes that during the
period of the United States embargo petroleum products were reaching
the United States in considerable quantities that were derived in part
from Iranian crude oil?’, commerce in such products did not constitute
“commerce between the territories of Iran and the United States”, under-
stood exclusively as direct commerce. Also, the Judgment apparently
views the “directness” of commerce in oil and petroleum products as
eliminated not by the fact that, having been mixed with oil from other
destinations, refined or otherwise processed, for instance in Rotterdam,
Iranian crude oil could have lost its Iranian nationality, as it were, but
rather by the existence in the context of indirect commerce of a succes-
sion of commercial transactions involving in addition to an Iranian seller
and a United States buyer some intermediate participant(s) in a third
country #.

29. I find this interpretation of Article X, paragraph 1, plainly wrong.
It is too formalistic and due to render the inter-State “commerce” pro-

27 Cf. paragraph 96 of the present Judgment and infra paragraph 30.

28 Cf. Judgment, paras. 96 ff. In the Court’s view “[t]his is not ‘commerce’ between Iran
and the United States, but commerce between Iran and an intermediate purchaser; and
‘commerce’ between an intermediate seller and the United States” (ibid., para. 97).

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339 OIL PLATFORMS (SEP. OP. SIMMA)

tected under the Treaty a prey to private manipulations. In order to
assess the ambit of this protection correctly, I would submit that a sharp
distinction ought to be drawn between the level of international commer-
cial law, that is, the law and the contractual relationships governing
transactions in oil between private parties on the one hand and the level
of public international, i.e., treaty law on the other: the 1955 Treaty
intends to protect “commerce between the territories of the Parties” as a
value, or as a good, belonging, as it were, to the States parties to it; it in
no way focuses on the private transactions that make such commerce
flow from Iran to the United States. Thus, what the Treaty protection of
commerce aims at is the macro-economic aspect of oil trade. And in this
regard, the situation was as follows: according to the information before
the Court, Iran’s economy benefited from an increase in sales of crude oil
to Western European markets during the period of the embargo, and this
corresponded to increased spending by United States importers on petro-
leum products in those markets. Just as there was, in some sense, a flow
of Iranian oil into the United States in the form of “mixed” crude oil or
refined products, so there was also a corresponding flow of capital out of
the United States and, ultimately, into Iran to pay for the products. In
my view, this is all there is needed to represent “commerce between the
territories” of the two Parties for the purposes of a commercial treaty of
the kind exemplified by the 1955 Treaty. Trade in oil has to be viewed in
light of the realities of that trade*®. I would presume that even before the
enactment of the embargo, indirect trade in oil (products), as such trade
is understood by the Judgment, was taking place. Subsequent to the
United States President’s Executive Order 12613, what happened was
that all Iran-United States oil trade became indirect in that way.

30. The figures in that regard are quite telling. According to the report
by Professor Odell submitted by Iran, trade in oil between Iran and
Europe and Europe and the United States increased very significantly
around the time in which the embargo was enacted. Thus Iranian crude
exported to European OECD countries rapidly expanded from only
25.2 million tons in 1986 to 37.7 million in 1987, and to 43.0 million
tons in 1988: a 70 per cent increase in two years.

In the course of the same two years, exports of oil products from
Western Europe to the United States rose by 60 per cent, from 11.2 to
17.9 million tons, while exports of such products as a whole from
Europe increased much more modestly by 35 per cent from 24.3 to
32.7 million tons. In 1986, 46.1 per cent of Western Europe’s exports
of relevant products went to the United States; in 1988, the United

29 Crawford, CR 2003/5, pp. 3 ff.

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States was the destination for 54.7 per cent of the total. Professor
Odell concludes:

“One can reasonably presume that these much larger than previ-
ously reported levels of geographically non-specified destinations for
oil products ex-Europe for 1988 could have been related to actions
which sought to disguise an Iranian origin for large volumes of oil
going to the United States through Europe.” ?!

Again according to Professor Odell, the “denationalization” process
that Jranian oil underwent in Europe was substantial so that it would be
very difficult to trace the oil to its origin. Odell states that “it was thus an
ideal system into which US embargoed Iranian crude could be intro-
duced” *”.

31. Another critical observation in place would be that the Judgment
is rather oblique in its treatment of the exception made in Executive
Order 12613. After all, the Order provided that the embargo was not to
apply, inter alia, to “petroleum products refined from Iranian crude oil in
a third country”. Must the very existence of this exception from the
embargo not be seen as an implicit acknowledgment by the United States
that indirect commerce was also to be regarded as “commerce” between
itself and Iran? If it had been taken to be otherwise, the exception would
not have been necessary at all.

32. The economic interests at the basis of indirect trade in oil (prod-
ucts) between Iran and the United States appear to me quite clear-cut:
Iran had an interest in sending its oil to Western Europe because there
the oil was mixed with crude from other geographical origins or refined
to some degree, so that it was impossible to determine whether oil prod-
ucts subsequently imported into the United States from Western Europe
had come from Iran or not. But it is apparent that the United States also
had an interest in maintaining this arrangement. It permitted the United
States to claim that it had placed an embargo on Iran while at the same
time allowing American companies to indirectly import oil products from
that country. It allowed Iran to hide the “nationality” of its oil by send-
ing it to a third country where it was mixed with oil from other sources
and then could be sold on to the United States without complaints. Thus
it seems that one of the main motives behind shipping the oil to Europe
before it went on to its final destination, the United States, was to cir-
cumvent the embargo rather than substantively change the product by
adding significant value to it. The United States clearly had knowledge of
these facts but its importers still bought greatly increased quantities of oil
from Europe, as described in the Odell Report.

30 Reply and Defence to Counter-Claim submitted by Iran (RD), Vol. III, Odell Report,
p. 10.

31 Jbid., p. 12.

32 Jbid., p. 9.

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33. Again, what I cannot but see here is “commerce between the ter-
ritories” of the two Parties, well within the meaning of Article X, para-
graph 1, of the 1955 Treaty. Nowhere does that Treaty require that such
commerce be carried on between Iranian and United States natural or
legal persons, without any foreign intermediaries, or that the oil should
be shipped between the territories of the Parties without any interruption.

Paragraph 97 of the Judgment seeks to strengthen the opposite point
of view by saying that:

“If, for example, the process of ‘indirect commerce’ in Iranian oil
through Western European refineries . . . were interfered with at
some stage subsequent to Iran’s having parted with a consignment,
Iran’s commitment and entitlement to freedom of commerce vis-a-
vis the United States could not be regarded as having been violated.”

But let us assume that it would have been the United States itself that
would have thus interfered, would in such case Iran not have regarded its
entitlement to freedom of commerce as having been violated by the other
Contracting Party? The answer will be a clear no. Thus, the very example
chosen by the Court shows that the (as it were, “macro-” rather than
“micro-”) economic link characterizing the “commerce between the
territories . . .” protected by the Treaty would not be severed by any
intermediate private transactions involving third-country nationals.

34. With regard to the two groups of oil platforms attacked by the
United States I therefore reach the following result:

(a) as far as the Reshadat** platforms attacked in October 1987 are
concerned, there is the possibility that they could even have returned
to contributing to direct commerce between the territories of the two
countries before the United States embargo set in. After resumption
of performance, they would with certainty have participated in
indirect commerce;

(b) the same is valid for the Salman platform attacked in April 1988; as
far as the Nasr platform attacked at the same date is concerned, it
was operating at the time of the attack, that is, it was participating
in Treaty-protected commerce.

Thus, the destruction of the oil platforms violated Iran’s freedom of
commerce

— given (correctly) what could be called the “abstract” meaning of such
freedom in the case of the Reshadat, Resalat and Salman platforms;

— also understood in the “concrete” sense (as done by the Judgment) in
case of the Nasr platform.

33 And Resalat, see supra, footnote 20.

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Since, in my view, indirect commerce is protected by Article X, para-
graph 1, of the Treaty, both United States attacks constituted breaches of
the Treaty. The Court should therefore have upheld Iran’s respective
claim.

II. THE UNITED STATES COUNTER-CLAIM

A, Introduction

35. While the Judgment discusses at length the issues of jurisdiction
and admissibility of the United States counter-claim, in comparison it
devotes very little attention to the substantive questions raised therein. In
particular, the reasons for the dismissal of the generic counter-claim
given in paragraph 123 of the Judgment appear to me to be plainly
inadequate: all the Judgment has to say in this regard is that the high risk
for navigation in the Gulf during the Iraq-Iran war is not sufficient for
the Court to decide that Article X, paragraph 1, of the 1955 Treaty was
breached by Iran, and, further, that the United States was unable to
demonstrate an actual impediment to trade or navigation between the
territories of the Parties resulting from Iran’s hostile activities. After all,
paragraph 123 of the Judgment tells us commerce and navigation between
Iran and the United States did continue during the war. According to
the Court, in the circumstances of this case, a generic claim of breach of
Article X, paragraph 1, cannot be sustained independently of the specific
incidents involving a number of ships, the entirety of which the Court
found as not having led to an interference with the freedom of commerce
and navigation protected by the Treaty.

36. Thus far the Court’s reasoning, contained in one single paragraph

34 More precisely, paragraph 123 states that

“according to the material before the Court the commerce and navigation between
Iran and the United States continued during the war until the issuance of the United
States embargo on 29 October 1987, and subsequently at least to the extent permitted
by the exceptions to the embargo”.

As set forth in paragraph 90 of the Judgment, the embargo prohibited the import into the
United States of most goods, including oil, and services of Iranian origin. Most but not all
goods were affected by the embargo, which means that certain goods could still be
imported freely into the United States from Iran. Commerce between the two Parties,
which is not limited to commerce in oil, therefore continued even after the issuance of the
embargo. However, the fact that commerce between the two Parties continued during the
war does not, in and of itself, demonstrate that Iran’s actions did not impede on the free-
dom of commerce and navigation between the two Parties. Had it not been for the
impediments resulting from Iranian actions, there might have been more commerce
between the two Parties. In other words, some commerce was still going on during the
war, but not as much as would have been the case absent Iran’s actions detrimental to
commercial shipping between the Parties.

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of the Judgment, and the little there is is borrowed in part from the argu-
ments used by the Court before to dismiss the specific variant of the
United States counter-claims. Possibly such short shrift thus given to
the generic counter-claim can be explained as the Court’s reaction to
the somewhat unpersuasive way in which it was pleaded. Indeed, what
I would regard as a full-fledged reasoning in support of the generic
counter-claim was never really articulated by the United States. I would
submit however that there is more merit to this counter-claim than meets
the eye.

37. In the following, after a brief explanation of the meaning of
“generic counter-claim” underlying the present case, I will scrutinize the
main arguments in favour of the United States counter-claim of this
nature, as they can be developed on the modest basis of what the United
States did actually muster by way of reasoning. In doing so, I do
not assume to violate the ultra petita partium rule because the generic
counter-claim was actually made, if only insufficiently argued.

38. Iran, in its written pleadings on the counter-claim, made a distinc-
tion between the general context and worsening conditions for shipping
in the Persian Gulf during the period in question, and the specific inci-
dents referred to by the United States as constituting breaches of Iran’s
obligations under the Treaty**. Looking at the written pleadings of the
United States, however, one finds no mentioning of an express distinction
between a “generic” and a “specific” counter-claim*. Rather, in the
United States Counter-Memorial and Counter-Claim, the counter-claim
was formulated as a single claim. At the stage of the oral pleadings, the
United States actually seemed to reject the distinction *’. I use the word
“seemed” because the position of the United States was unclear: after
what could be regarded as a rejection of the distinction proposed by Iran,
counsel for the United States went on to say that, in the Nicaragua case,

35 Tran found it

“useful to analyse the US’s claims in two ways: first, to the extent the United States
refers to attacks on specific vessels (the specific claims), and secondly, to the extent
that it refers to a more general impairment of the freedom of commerce between the
territories of the High Contracting Parties (the generic claim)” (RI, para. 9.22).

Iran then proceeded to analyse both “claims”.
36 Specific incidents were mentioned by the United States in order to illustrate the asser-
tion that

“Tran’s actions resulted in extremely dangerous conditions for all vessels operating in
the Gulf, including a number of United States vessels which suffered severe property
damage and injury to their crews” (Counter-Memorial and Counter-Claim submitted
by the United States of America (CMUS), para. 6.09).

37 CR 2003/13, pp. 42-43, paras. 21.61-21.63.

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344 OIL PLATFORMS (SEP. OP. SIMMA)

“[tlhe Court did not feel compelled to treat each of the incidents placed
before it as individual claims ... We urge the Court to do the same in this
case.” 38 In thus requesting the Court not to examine the incidents indi-
vidually, the United States in fact embraced a more generic approach to
the counter-claim implicitly.

39. Regardless of what the position of the United States on this prob-
lem of nomenclature ultimately was, the Court found the distinction
suggested by Iran useful and took it up in its Judgment. I will therefore
also follow it in my analysis. The way in which the Judgment proceeds is
to reject the two types of counter-claims independently of each other, even
though applying to the generic counter-claim more or less the same cri-
teria that it applies earlier on to its specific variety. I submit that this
approach cannot do justice to the generic counter-claim. To be able to
stand on its own, the generic counter-claim must be given its distinct sub-
stance — a substance independent of that of the various specific incidents
referred to by the United States. The Court’s way of dealing with the
matter in paragraph 123 reduces the generic counter-claim to an empty
shell, which is then summarily disposed of.

40. To delineate the contours of the generic counter-claim in an
adequate way, it is useful to refer to the 1986 Nicaragua Judgment. In the
Nicaragua case, the Court was faced with similar violations of a similar
treaty, which also protected the freedom of commerce and navigation
“between the territories” of the two parties. When the Court assessed the
impediment to the freedom of commerce and navigation caused by the
United States attacks on Nicaraguan ships, it did not consider it neces-
sary to establish whether the particular vessels harmed by mines were fly-
ing the Nicaraguan flag, and whether the ships in question were trans-
porting cargo between the United States and Nicaragua * (even though
Article XIX, paragraph 1, of the FCN Treaty between the United States
and Nicaragua of 1956, like Article X of our Treaty, reads: “Between the
territories of the two parties there shall be freedom of commerce and
navigation”).

41. Most importantly, in the Nicaragua case, the Court did not ana-
lyse each incident in detail. Rather, it gave a broad picture of the context
prevailing at the time, and assessed the nature and the extent of United
States involvement and, consequently, its responsibility for the resulting
violations of general international law and the FCN Treaty. Nowhere do
we find a specific account of what happened to each ship. The Court’s

38 CR 2003/13, p. 43, para. 21.64.
39 Military and Paramilitary Activities in and against Nicaragua { Nicaragua v. United
States of America), Merits, Judgment, I C.J. Reports 1986, p. 48, para. 81.

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345 OIL PLATFORMS (SEP. OP. SIMMA)

approach, in this sense, was more “generic” than “specific”. In our case
as well, the analysis of the generic counter-claim should not entail an
analysis of what happened to the specific ships named by the United
States.

42. One difference, of course, has to be pointed out at once: whereas,
in the Nicaragua case, responsibility for the military actions taken against
Nicaragua could be attributed only to the United States, in the present
case two States created the situation adverse to neutral shipping in the
Gulf: Iran and Iraq or, to be more precise, Iran or Iraq. I do not believe
however that this difference is determinant. With respect to the generic
counter-claim, all that matters is that Iran was responsible for a signifi-
cant portion of the actions that impaired the freedom of commerce and
navigation between the United States and Iran. This is sufficient to hold
Iran in breach of its obligations under Article X, paragraph 1, of the 1955
Treaty, and it is not necessary to determine the particular extent to which
Iran was responsible for these actions.

43. Another point is of even greater importance: against the reasoning
that follows it cannot be argued that all the impediments to free com-
merce and navigation which neutral ships faced in the Gulf were caused
by legitimate acts of war carried out by the two belligerents, Iran and
Iraq, and that therefore neutral shipping had nothing to complain about,
so to speak, because it entered the maritime areas affected by the Gulf
war at its own risk — a risk which all neutrals must bear if they decide to
navigate and trade in such a dangerous environment. This argument
appears ill founded because it is well recognized that both Iran and Iraq
conducted their activities against neutral shipping in and around the Gulf
that are at issue here widely in disregard of the rules of international jus
in bello, in particular the laws of maritime neutrality. I will exemplify
such illegal activities on the part of Iran in the following analysis, but
what has to be emphasized already at this point is that these activities
were not justified simply because a state of war existed between Iran and
Iraq.

B. Analysis

44. In my view, in the present case the purpose of the generic counter-
claim is to compensate the United States for the harm done by Iran
to commerce and navigation with the United States rather than for the
harm done to specific vessels. For the reasons now to be outlined, I will
argue (1) that Iran’s actions constitute a violation of Article X, para-
graph 1, of the 1955 Treaty, and (2) that the impediment on the freedom
of commerce and navigation caused by those actions is evidenced by the
increase in labour, insurance, and other costs resulting for the partici-

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pants in commerce between the two countries during the relevant
period.

1. Iran’s violation of Article X, paragraph 1

45. The United States described in detail the various actions taken
by Iran which caused damage to vessels, higher navigational risks, and
delayed passage*!. Let us look at these hostile activities.

First, I consider undeniable that Iran laid mines for the purpose of
sinking and damaging ships —- also United States-flagged ships and other
vessels engaged in commerce between Iran and the United States — sail-
ing in the Gulf and surrounding waters. In this regard, the Texaco Carib-
bean incident of 10 August 1987 is very instructive. A week after this
tanker had struck a mine, Iran assisted in minesweeping operations in the
area and destroyed a number of mines*?. A Reuters wire report indicates
that six mines were found in the area in the three days following the inci-
dent. It is striking that Iran did not identify any of the mines which it
found and destroyed; at least no such information appears in any of the
reports. Then, from 21 to 28 September 1987, France and the United
Kingdom conducted minesweeping operations in the area where the
Texaco Caribbean incident had taken place. In the course of these opera-
tions, no mines could be detected. On 10 October 1987 (that is, two
months after the mining of the tanker), warships of the two countries
returned to the site and undertook a second minesweeping operation.
This time five mines were detected. The United Kingdom Ministry of
Defence identified those mines as Iranian-manufactured SADAF-02
mines, on the basis of the serial numbers and characteristics of these
weapons*. This evidence suggests that Iran had laid mines again, after it
had cleaned up the area following the Texaco Caribbean incident. It also

40 According to Iran, the United States had to prove the following with respect to the
generic claim:

1. the existence of commerce between the territories of the High Contracting Parties,
independently of any individually named ship or other instrumentality ;

2. that conduct attributable to Iran violated the freedom of that commerce, contrary to
Article X (1) of the Treaty of Amity; and

3. (eventually) the guantum of damages or compensation directly attributable to that vio-
lation.

Iran’s response to the counter-claim at paragraph 9.24 (emphasis added).
41 CR 2003/13, pp. 20-21, paras. 20.7-20.14.
42 Observations and Submissions of Iran on the United States Preliminary Objection,

Exhibit 27.
43 CMUS, Exhibit 52.

44 Jbid., Exhibit 53.
45 [bid., Exhibit 43, para. 15, Exhibit 53.

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347 OIL PLATFORMS (SEP. OP. SIMMA)

appears highly probable that the mines which Iran destroyed without
identifying them back in August were its own“.

46. To the evidence related to the Texaco Caribbean incident can be
added that resulting from minesweeping operations undertaken by the
United States Navy off the coast of Kuwait in June 19877, and such
operations undertaken by Kuwait itself in July 198748. The mines swept
during those operations were identified as Iranian following the boarding
and search of the Jran Ajr on 21 September 1987, because they were iden-
tical to the mines found on board that vessel. Then, in November 1987,
minesweeping operations detected Iranian mines in the location where
the Bridgeton had been hit. Those are only examples of the evidence
showing that Iran repeatedly laid mines in the Persian Gulf during the
relevant period.

47. Moreover, Iran gave no warning to ships travelling in the area that
mines had in fact been laid. When belligerents lay mines, Article 3 of the
1907 Hague Convention (VIII) Relating to the Laying of Automatic Sub-
marine Contact Mines requires that “every possible precaution must be
taken for the security of peaceful shipping” *. Even States which did not
ratify or accede to the Hague Convention, among them Iran“, have a
duty of notification when laying mines*!. This prohibition dating from
1907 was reconfirmed by the Court in its Nicaragua Judgment of 1986,
which stated that:

“if a State lays mines in any waters whatever in which the vessels of
another State have rights of access or passage, and fails to give any
warning or notification whatsoever, in disregard of the security of
peaceful shipping, it commits a breach of the principles of humani-

46 The only response provided by Iran was that it could not have laid those mines there
since Iranian ships used that route too. See CR 2003/14, p. 21, at para. 39.

47 CMUS, Exhibit 37.

48 Jbid., Exhibit 34.

49 D. Schindler and J. Toman, Droit des conflits armés, Comité International de la
Croix Rouge & Institut Henry-Dunant (eds.), 1996, pp. 1115-1120.

°° Information available at www.icrc.org/ihl.nsf/ WebNORM ?OpenView&Start=1&Count=
150&Expand=1919 (last visited 28 October 2003).

$1 CMUS, Annex, Vol. VI, Exhibit 172, p. 282:

“It is probably also true that [the States which did not accede to the Hague Con-
vention (VIID] may not lay mines off the enemy coast merely to intercept neutral
shipping, that they are bound to observe the duty to notify the laying of mines, that
they have to take additional safety measures to protect innocent shipping and that
they must also remove mines at the end of the war.” (Emphasis added.)

See also ibid., Exhibit 173, pp. 168-169.

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348 OIL PLATFORMS (SEP. OP. SIMMA)

tarian law underlying the specific provisions of Convention No. VIII
of 1907” *2.

It is certainly not within the jurisdiction of the Court in the present
case to determine whether Iran’s failure to notify ships travelling in the
Gulf of the existence of the mines it laid violated the above Hague Con-
vention, or even the principles of humanitarian law underlying that Con-
vention. Yet, it is obvious, and well within jurisdictional reach in the
present case, that, had Iran notified neutral ships of its minelaying activi-
ties, it would have mitigated the disruption to the freedom of commerce
and navigation. There can be no doubt that the laying of the mines,
aggravated by Iran’s failure to notify, created dangerous conditions for
maritime commerce and navigation between Iran and the United States.

48. Secondly, ships engaged in commerce between Iran and the United
States were attacked by Iranian aircraft°?. Whether such attacks were
launched from or with the assistance of the oil platforms is irrelevant at
this stage. They were carried out by fixed-wing aircraft and helicopters **.
These attacks, like the mining attacks, disrupted maritime commerce in
the Gulf>>.

49. Thirdly, ships engaged in commerce between Iran and the United
States were also attacked by Iranian gunboats equipped with machine
guns and rocket launchers*f. The United States listed three attacks of this
type in its counter-claim: the attacks on the Lucy, the Esso Freeport and
the Diane>*’. Iran argued that close to no damage had been caused by
those attacks. However, the impediment to freedom of commerce was
not caused by damage to the ships but rather by the insecure environ-
ment which these attacks created for merchant shipping, including
shipping between Iran and the United States.

2. Evidence of the impediment to freedom of commerce and navigation

50. Concerning, first, freedom of navigation, the Court stated in 1998
that it had jurisdiction “to entertain the United States counter-claim in so
far as the acts alleged may have prejudiced the freedoms guaranteed by
Article X, paragraph 1”>°8, thereby including the freedom of navigation.
All the vessels mentioned in the United States counter-claim had a right

52 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I CT. Reports 1986, p. 112, para. 215.
53 CMUS, p. 64, paras. 1.91-1.95.

54 Jbid., p. 161, para. 6.04.

55 Ibid., Exhibit 6; Exhibit 17, pp. 3-4; Exhibit 19; Exhibit 52, p. 19.

56 Jbid., p. 161, para. 6.04. See also ibid., Exhibit 22, p. 2, and Exhibit 32, p. 3.

57 Jbid., p. 166, para. 6.08.

°8 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-
Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 204, para. 36 (emphasis added).

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349 OIL PLATFORMS (SEP. OP. SIMMA)

to pass innocently, and follow the route of their choice, through Iranian
territorial waters on their way to and from the United States, by virtue
of the 1955 Treaty. I do not believe that the fact that merchant ships
engaged in Treaty-protected commerce were in effect forced to navigate
in a narrow channel in the Gulf created an impediment to their freedom
of navigation, guaranteed by Article X, paragraph 1. In my view, this
was a result of the general military situation in the Gulf rather than due
to a deliberate hostile measure taken by Iran. It was simply advisable for
ships to keep out of the Iranian war zone. The ensuing factual restriction
to the passage of ships therefore does not amount to a violation of
Article X, paragraph 1, of the 1955 Treaty by Iran.

51. On the other hand, Iranian attacks on ships engaged in commerce
between the Parties through mining, and attacks by aircraft or patrol
boats, did very well prevent these vessels from navigating freely and
safely through the Gulf. Such vessels had to navigate so as to avoid the
areas where Iranian mines had been discovered or were suspected to
have been laid, thus effectively being forced to use indirect routes which
were lengthier and therefore more expensive. In addition, ships began
travelling at night for safety reasons. Thus, by creating conditions too
dangerous for ships to travel by daylight, Iran also impeded upon the
United States freedom of navigation.

52. Concerning, second, freedom of commerce, measuring the impact
of a given hostile measure or action on such freedom is a difficult task.
Nevertheless, there is substantial evidence supporting a finding that Iran’s
actions impeded on the freedom of commerce between the two countries
guaranteed by Article X, paragraph 1, of the 1955 Treaty. Let me set out
this evidence.

53. As concerns, first, minelaying, the Court declared in the Nicaragua
case that, when a right of access to a port “is hindered by the laying of
mines, this constitutes an infringement of the freedom of communica-
tions and of maritime commerce” *?. In our case, as demonstrated above,
the evidence shows that Iran repeatedly laid mines in order to disrupt
neutral shipping in the Gulf, which necessarily included shipping between
Iran and the United States. Thus, through these minelaying activities,
Iran clearly infringed upon the freedom of commerce protected by
Article X, paragraph 1, or in the words of the Court in Nicaragua,
acted in “manifest contradiction” © to the freedom of commerce guaran-
teed by the 1955 Treaty.

5° Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United
States of America), Merits, Judgment, 1.C.J. Reports 1986, pp. 128 ff., para. 253.
6° Jbid., pp. 139 ff., para. 278.

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350 OIL PLATFORMS (SEP. OP. SIMMA)

54. The Iranian activities also led to an increase in labour costs. In
general, wages of crew members had to be raised in order to reflect the
increasingly dangerous sailing conditions in the Gulf. As travelling by
daylight became more dangerous, ships began travelling at night to avoid
attacks by Iranian helicopters, etc., resulting in a further increase of crew
members’ wages®! . For instance, Chevron, an American oil company
whose tankers transported crude oil from the Gulf to the United States
during the Tanker War‘,

“gave each crewmember the option of disembarking before his or
her ship entered the Gulf... Virtually all crewmembers stayed with
their vessels, and they received a 100 percent pay bonus during the
time that they were in the Gulf.” ©?

55. Further, because of the war raging between the two countries,
insurance premiums related to commerce in the Gulf also increased. For
instance, two days following the Texaco Caribbean incident, Lloyd’s
underwriters in London decided to impose an immediately effective war-
risk premium charge equivalent to 0.125 per cent of the insured value of
the vessels’ hull for ships visiting the United Arab Emirates ports before
entering the Gulf. At the time, most shipping insurance policies did not
include damage caused by military hostilities in war zones, and com-
panies were compelled to purchase additional insurance policies covering
the risks the ships now faced in the Gulf®. These extra costs contributed
to making shipping between the countries of the Gulf Gncluding Iran)
and the United States more expensive.

56. Iran dismissed this argument by saying that such costs are

5! “Our routing obviously cost KOTC considerable time and money. The day spent
waiting in Jubayl was an extra day of war zone bonuses to the crews and war risk
premiums, since war risk premiums had to be paid for the whole period the vessel
was within the Arabian Gulf...” (CMUS, Exhibit 31, p. 3, para. 8; see also ibid.,
para. 6.)

62 Rejoinder of the United States (RUS), Exhibit 180, p. 1, paras. 1-3.
63 Jbid., para. 7.
64 CMUS, Exhibit 52.

65 RUS, Exhibit 180, p. 2, para. 8; see also CMUS, Exhibit 7.

66 It is instructive that in the Nicaragua case the Court also noted that the explosion of
mines created “risks causing a rise in marine insurance rates” (1 C.J. Reports 1986, p. 48,
para. 80). Later, the Court stated again that “Nicaragua’s claim is justified not only as to
the physical damage to its vessels, but also the consequential damage to its trade and com-
merce” (ibid., p. 139, para. 278).

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351 OIL PLATFORMS (SEP. OP. SIMMA)

unrecoverable under international law®’. Whether or not there is merit
to this claim is irrelevant in the present context. What is relevant, how-
ever, is that the increased cost of commerce constituted an impediment to
the freedom of such commerce between the two Parties.

57. In addition, Iran argued that evidence relating to ships travelling
to and from Kuwait and Saudi Arabia is “strictly irrelevant to any claim
based on Article X (1) of the 1955 Treaty” ®*®. This argument is to be dis-
missed since such evidence is indicative of the conditions — military, eco-
nomic, etc. — prevailing in the Persian Gulf at the time for all its “users”.
The fact that commercial shipping to and from Kuwait was disturbed
reflects a wider, more general context in which shipping in the Gulf was
made more dangerous and thus more costly. Since all ships took similar
routes within the Gulf, the conditions affecting commercial shipping
between the United States and Iran also affected shipping between the
United States and Kuwait or Saudi Arabia. As the Court stated in the
case concerning Military and Paramilitary Activities in and against
Nicaragua,

“it is clear that interference with a right of access to the ports of
Nicaragua is likely to have an adverse effect on Nicaragua’s economy
and its trading relations with any State whose vessels enjoy the right
of access to its ports” *?.

58. To finally mention some other financial impact of Iran’s actions
on commercial shipping between Iran and the United States, before
entering the Gulf, tankers had to remove any oil remaining on board for
fear of dangerous explosions that could occur if a ship carrying oil
struck a mine or was hit by a missile. The cost of such measures was
$50,000 for each voyage in the Gulf’°. Further, ships travelling through
the Gulf had to sail at faster speed (17 knots instead of 12-14 knots),
resulting in significant penalties and, incidentally, higher navigational
risks’!, In addition, while the passage through the Gulf was normally
made without stopping, many vessels actually stopped twice en route to
avoid a daylight passage and to allow management to assess the poten-
tial for attack. As a result, passage through the Gulf was longer, and
thus more expensive for shipping companies. Chevron, for instance,
incurred as much as $40,000 a day in additional operating costs while
ships were stranded in the Gulf, a loss to which had to be added the

67 CR 2003/14, p. 61, paras. 41-43.
68 RI, Vol. I, p. 220, para. 11.5.

6° Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United
States of America), Merits, Judgment, I C.J. Reports 1986, p. 129, para. 253; emphasis
added.

70 RUS, Exhibit 180, para. 11.

71 Jbid., para. 14.

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352 OIL PLATFORMS (SEP. OP. SIMMA)

amount of capital (oil barrels) tied up on board (as high as $50,000,000
for a very large crude oil carrier)’*. Other costs included escort protec-
tion for ships to help them avoiding striking mines *.

C. Conclusions

59. By laying mines without warning commercial ships, by not notify-
ing neutral ships of the presence of mines, and by harassing commercial
shipping of all nationalities in the Persian Gulf also in other ways, Iran
created dangerous and more onerous conditions for commercial shipping
also between the two Parties’*. As J have emphasized at the outset, the
state of war between Iran and Iraq did not provide Iran with a general
justification for its hostile activities because these were, for the greatest
part, in violation of the laws of war and neutrality. Therefore, Iran ought
to have been found in violation of its obligations under the 1955 Treaty,
and the generic counter-claim of the United States should have been
upheld.

60. To emphasize once again: in order to reach this conclusion, we
need not look at each of the specific incidents described by the United
States independently, or prove that each of these incidents is attributable
to Iran. In fact, doing so would be inappropriate in the context of a
generic claim. As long as it is clear that, during the Tanker War, Iran and
Iraq were both engaging in actions detrimental to neutral commercial
shipping in the Gulf (including, of course, commercial shipping between
Iran and the United States)’>, the particular extent to which Iran was
responsible for these actions need not be determined with precision. It is
sufficient to establish that Iran, because of the Iran-Iraq war, was respon-
sible for a significant portion of those actions, and that such actions
impaired the freedom of commerce between the United States and Iran
guaranteed by the 1955 Treaty in ways not justifiable simply because of
the existence of a state of war.

72 RUS, Exhibit 180, para. 15.

73 [bid., para. 16. For Chevron, such protection amounted up to $40,000 a day.

74 CMUS, p. 160. While I believe that Iran’s actions were inconsistent with Article X of
the 1955 Treaty, it is not my view that such actions reached the level of an “armed attack”
against the United States in the meaning of Article 51 of the United Nations Charter.
There is thus no inconsistency between what I conclude here and what I have said on
Article XX of the 1955 Treaty (see the respective section of the present opinion).

75 In this regard, cf. paragraph 44 of the Judgment:

“the Court notes that it is not disputed between the Parties that neutral shipping in
the Persian Gulf was caused considerable inconvenience and loss, and grave damage,
during the Iran-Iraq war. It notes also that this was to a great extent due to the
presence of mines and minefields laid by both sides.”

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353 OIL PLATFORMS (SEP. OP. SIMMA)

61. An obstacle to admitting the United States counter-claim could be
seen in the argument that the acts alleged to have constituted an impedi-
ment to the freedom of commerce and navigation under the Treaty can-
not be attributed to Iran with certainty. Therefore, the argument would
go, it is impossible to find Iran responsible for those acts. I will now pro-
ceed to show how this obstacle may be overcome.

62. One remark is to be made right at the outset: in the present case
the problem of attribution poses itself almost exclusively with regard to
minelaying by the parties to the Gulf war. But as referred to above, in
addition to mine attacks, Iran also carried out attacks by helicopters,
other aircraft and patrol boats, which largely contributed to the unsafe
shipping conditions in the Gulf. Whereas identifying the State respon-
sible for particular minelaying activities is not an easy exercise, identify-
ing the State engaging in attacks by helicopters or patrol] boats is much
less difficult. Attribution of responsibility therefore can only be prob-
lematic with respect to minelaying. As for attacks by helicopters, patrol
boats, etc., against ships engaged in commerce between Iran and the
United States, there is hardly any doubt that they were carried out by
Iran. Therefore, when we move away from the mines, so to speak, the
generic counter-claim becomes free of the problem of attribution. Hence,
the following reasoning is in essence devoted to the problem of attribu-
tion of minelaying in the Gulf.

63. As I have just demonstrated, attribution of responsibility for such
minelaying activities certainly represents the principal challenge to the
generic counter-claim. Against this challenge militates a sense of fairness.
Yet, the thought that Iran could be held responsible for acts that could
not be attributed to it beyond a certain threshold of proof is also
troubling. The question we face is thus the following: how can we hold
Iran responsible for acts which, even though they did create impediments
to the freedom of commerce and navigation, cannot be attributed to
Iran with certainty?

64. It is common knowledge that the Iran-Iraq war had a destabilizing
effect on the regional economy, including American commerce going
through the Gulf. This destabilizing effect is easily measurable by the
increase in costs for doing commerce in the Gulf, as the evidence dis-
cussed above shows. It is more difficult — if not impossible — to measure
with any exactitude the negative impact of individual Iraqi or Iranian
actions on the economic conditions of commerce, let alone on American
commerce specifically. The damage caused by these actions, ie. the
impediment to the freedom of commerce and navigation protected by the
1955 Treaty, is indivisible and as such cannot be apportioned between
Iran and Iraq.

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354 OIL PLATFORMS (SEP. OP. SIMMA)

65. Responsibility, however, is another matter. It is clear that a series
of actions taken by each party to the war necessarily disturbed the eco-
nomic environment (even if unintentionally). But what conclusion is to
be drawn from this? Should we hold both States equally responsible for
the impediments caused to commerce and navigation? Or can neither of
the two States be held responsible because it is impossible to determine
precisely who did what?

66. In order to find a solution to our dilemma, I have engaged in some
research in comparative Jaw to see whether anything resembling a “gen-
eral principle of law” within the meaning of Article 38, paragraph 1 (c),
of the Statute of the Court can be developed from solutions arrived at in
domestic law to come to terms with the problem of multiple tortfeasors.
I submit that we find ourselves here in what I would call a textbook
situation calling for such an exercise in legal analogy. To state its
result forthwith: research into various common law jurisdictions as
well as French, Swiss and German tort law indicates that the question
has been taken up and solved by these legal systems with a consistency
that is striking.

67. To begin with common law jurisprudence, in a well-known case
heard by the Supreme Court of California”, the plaintiff sued two
defendants for injury to his right eye and face as a result of having been
struck by birdshot discharged from a shotgun while the two defendants
had been hunting in an open range. It was admitted that both defendants
had fired at a quail, and that one piece of birdshot had hit the plaintiffs
eye and another his lip. However, there was no means of determining
which injury had been caused by which defendant. The defendants argued
that they were not joint tortfeasors because they had not been acting in
concert, and that there was not sufficient evidence to show which of the
two was guilty of the negligence that caused the injuries’.

The trial court had determined that “the negligence of both defendants
was the legal cause of the injury — or that both were responsible” 7’, even
though “the court was unable to ascertain whether the shots were from
the gun of one defendant or the other or one shot from each of them” ?°.
The California Supreme Court went on to quote Dean Wigmore, a
United States authority on tort law:

“When two or more persons by their acts are possibly the sole
cause of a harm... and the plaintiff has introduced evidence that
the one of the two persons. . . is culpable, then the defendant has the

76 Summers v. Tice, 33 Cal. 2d 80 (1948).
77 Ibid., p. 83.

78 Ibid., p. 84.

79 Ibid.

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355 OIL PLATFORMS (SEP. OP. SIMMA)

burden of proving that the other person . . . was the sole cause of the
harm. The real reason for the rule that each joint tortfeasor is
responsible for the whole damage is the practical unfairness of deny-
ing the injured person redress simply because he cannot prove how
much damage each did, when it is certain that between them they did
all.” 8°

As a matter of fairness to the plaintiff, the court then reversed the
burden of proof: each defendant had to prove that he had not caused the
injury. Since such proof could not be put forward, the court held both
defendants liable. The court dismissed the defendants’ argument that
causation was lacking between their acts and the plaintiff's damage®’.
Most importantly, the court also dismissed the argument that the plain-
tiff should establish the portion of the damage caused by each tortfeasor
in cases where there is a plurality of tortfeasors and where the damage
cannot be apportioned among them *®.

68. This solution, which has since been embodied in the Restatement
of Torts 83, is interesting in many ways. On the one hand, it recognizes the
difficulty of a finding of responsibility where apportionment is impos-
sible. On the other hand, it excludes as unfair a solution in which no one
would be held responsible. Finally, this provides an answer by shifting
the burden of proof on to each defendant. The solution provides the
wrongdoer a way out — acknowledging the peculiarity of a situation
where facts cannot be ascertained with certainty —, while at the same
time ensuring the plaintiff recovery for his injury if the defendant fails to
show his innocence.

69. The same solution was adopted by Canadian courts in Cook v.
Lewis**, According to Markesinis and Deakin, English courts faced with
the question of multiple tortfeasors are likely to take a similar approach ®°.

70. In French law, too, multiple tortfeasors (irrespective of whether
they are acting in concert) causing an indivisible damage are each respon-
sible for the entirety of such damage. Each tortfeasor is considered as
having caused the entire prejudice to the victim, who can recover in full

80 Summers v. Tice, 33 Cal. 2d 80 (1948), p. 85.

81 Jbid., p. 87.

82 Jbid., p. 88.

83 Rest. 2d Torts, s. 433B, subsec. (3).

84 [1951] SCR 830. On Canadian law, see also Jean-Louis Baudoin, La responsabilité
civile délictuelle, 1973, p. 164, para. 235.

85 Markesinis and Deakin, Tort Law, 4th ed., 1999, p. 185.

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356 OIL PLATFORMS (SEP. OP. SIMMA)

from any of them®®. In any event, when French courts dealt with this
question in the past, they typically discussed the extent of each tort-
feasor’s responsibility (partial or total) rather than responsibility as such.
When unable to hold each defendant liable on the basis of a specific dam-
age, French courts resorted to interpretations such as “collective breach
of duty” or “collective duty to look after the object which caused the
damage” even when tortfeasors had evidently not been acting with a
common motive, merely out of fairness for the injured plaintiff®’. In fact,
this solution had already been adopted in Roman law in the form of the
cause of action concerning “effusis et dejectis” (things spilled or thrown
out): whenever someone was injured by an object that had fallen from
the unidentified window of an apartment building, all residents of such
building were considered liable for the damage caused *®.

71. The same principles can be found in Swiss law, where Article 51 of
the Code des Obligations states that, when multiple tortfeasors acting
independently of each other cause a damage that cannot be divided
among them, any of the tortfeasors can be held responsible in full — just
like in the case of tortfeasors acting in concert®®. A commentary reads as
follows:

“Whether the unlawful acts have been committed by a number of
persons knowingly acting in concert (Art. 50, ‘solidarité parfaite . . .’),
or acting independently of each other, and even where liability is
based on different legal grounds (Art. 51, ‘solidarité imparfaite’),
the injured party enjoys an entitlement to concurrent claims, with-
out being concerned by any relationship between the joint tort-
feasors; he can only make a single claim to reparation, but each tort-
feasor will be liable towards him in respect of that claim as a whole
and, if he so wishes, the action need only be brought against any one
tortfeasor.” °°

72. The way, finally, in which German tort law addresses our issue is

86 H., L. and J. Mazeaud, Traité théorique et pratique de la responsabilité civile délic-
tuelle et contractuelle, Vol. Il, 6th ed., 1970, p. 1078, para. 1952; see also Boris Starck,
Henri Roland and Laurent Boyer, Obligations: 1. Responsabilité délictuelle, Sth ed.,
1996, p. 468, para. 1142; René Rodiére, La responsabilité délictuelle dans la jurisprudence
(1978), pp. 346-348, para. 119. In particular, Rodiére reproduces a decision of the Cour de
Cassation dating from 1892, which, as he notes, has been consistently followed by various
jurisdictions and approved by doctrine (Civ. 11 juillet 1892).

87 Boris Starck et al. (ibid.), p. 454, para. 1102.

88 Jbid., p. 455, para. 1104.

89 Georges Scyboz and Pierre-Robert Gilliéron, Code civil suisse et Code des Obliga-
tions annotés, 5th ed., 1993; see also Danielle Gauthey Ladner, Solidarité et consorité en
matiére délictuelle en droit suisse et américain, en particulier new-yorkais, 2002, p. 57,
para. 2.5, and p. 70, para. 4.

°° Georges Scyboz and Pierre-Robert Gilliéron, op. cit., commentary on Articles 50 and
51. [Translation by the Registry. ]

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357 OIL PLATFORMS (SEP. OP. SIMMA)

virtually identical with the domestic solutions hitherto outlined. The
pertinent provision of the German Civil Code (Bürgerliches Gesetzbuch),
§ 830, reads as follows:

“1. If several persons through a jointly committed delict have
caused damage, each is responsible for the damage. The same applies
if it cannot be discovered which of several participants has caused
the damage through his action.

2. Instigators and accomplices are in the same position as joint
actors.”

The first sentence of §830, paragraph 1, is not relevant to our case
because it presupposes the pursuance of a common design by the tort-
feasors. The same is valid regarding the provision’s paragraph 2. However,
the rule contained in the second sentence of §830, paragraph 1, is to the
point: its function is precisely to spare the victim the difficult, indeed
impossible, task of proving which one of several tortfeasors actually
caused the damage. The rule’s applicability depends upon three condi-
tions: first, each of the participants must have engaged in the activity
leading to loss or damage (irrespective of causality); second, one of the
participants must necessarily have caused such loss or damage; but,
third, it is impossible to determine which one of the participants did so,
in whole or in part?!.

73. Elevating the joint-and-several liability doctrine thus described to
the level of international law in the present case would lead to a finding
that Iran is responsible for damages, or impediments, that it did not
directly cause”?. Personally, I would find it more objectionable not to
hold Iran liable than to hold Iran liable for the entire damage caused to
the United States as a result of actions taken during the Iran-Iraq war. In
fact, I see no objection to holding Iran responsible for the entire damage
even though it did not directly cause it all. Remember that the question
before us is whether Iran can be found in breach of its treaty obligations

91 Palandt-Thomas, 62nd ed., 2003, § 830 BGB Rn 7. For some of the precedents in
German jurisprudence see BGH NJW 1960, 862 (responsibility of multiple tortfeasors for
injuring a person by throwing stones), and BGH NJW 1994, 932 (responsibility of several
producers of sweetened tea for the so-called “baby bottle syndrome”).

°2 As Markesinis and Deakin point out,

“by treating the cluster of theoretically apportionable injuries that cannot as a prac-
tical matter be apportioned as though they constituted a single indivisible injury, the
law of joint and several liability means that each tortfeasor can be made to pay for
more harm that he actually caused” (op. cit., p. 234).

It is interesting to note that the Michigan Supreme Court, in Maddux v. Donaldson (362
Mich. 425, at 433), accepted this not only as an inevitable but also as a just consequence
when division of liability among tortfeasors is impossible.

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358 OIL PLATFORMS (SEP. OP. SIMMA)

or not; in the present context I do not discuss any question of reparation.
This issue would only have arisen at a later stage. With regard to that —
now theoretical — issue and looking back at the range of solutions found
in domestic tort laws, I find very pertinent the compromise course steered
by the Supreme Court of California in the Sindell v. Abbott Laboratories
case. In that case, the court did not feel compelled to dismiss all respon-
sibility claims on the ground that some potential defendants were absent *.
To the contrary, the court, following Summers v. Tice, held each of the
defendants responsible and attempted, to the best it could, to approxi-
mate each defendant’s responsibility. The compromise found by the court
to account for the absence of interested parties was to hold the defend-
ants liable only for part of the damage suffered by plaintiff, not for its
entirety (I will return to the particular problems posed by the absence of
a potential respondent in the present case in the final part of this section).

74. On the basis of the (admittedly modest) study of comparative tort
law thus provided, I venture to conclude that the principle of joint-and-
several responsibility common to the jurisdictions that I have considered
can properly be regarded as a “general principle of law” within the mean-
ing of Article 38, paragraph 1 (c), of the Court’s Statute. I submit that
this principle should have been applied in our present case to the effect
that, even though responsibility for the impediment caused to United
States commerce with Iran cannot (and ought not, see infra) be appor-
tioned between Iran and Iraq, Iran should nevertheless have been held in
breach of its treaty obligations.

75. Another authoritative source addressing the issue of a plurality of
responsible States can be found in the Articles on Responsibility of States
for Internationally Wrongful Acts adopted by the International Law
Commission in 2001°*. The ILC’s solution is in conformity with the
result of the comparative research I have just presented. Article 47 states:
“Where several States are responsible for the same internationally wrong-
ful act, the responsibility of each State may be invoked in relation to that
act.”

76. In the context of the specific variant of the United States counter-
claim, Article 47 would apply only if both Iran and Iraq were responsible
for a given action — for instance, if Iran had carried out an attack
against a ship engaged in treaty-protected commerce, jointly planning
and co-ordinating the operation with Iraq. However, in the present case,

93 Sindell v. Abbott Laboratories, 607 P. 2d 924 (1980).
94 See supra footnote 19.

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the reality is such that the two States never acted in concert with respect
to a specific incident, and thus it always was either Iran or Iraq which
was responsible for a given incident. As a result, Article 47, which
requires both States to be responsible for the same internationally wrong-
ful act, cannot be applied to the specific counter-claim.

77. Applied to the generic counter-claim, on the other hand, Article 47
is very helpful. In the context of the generic counter-claim, the “interna-
tionally wrongful act” is constituted by the creation of negative eco-
nomic, political and safety conditions in the Gulf rather than by a specific
incident. The bringing about of this environment, taken as a whole, is
attributable to both States, as it is common knowledge that they both
participated in the worsening of the conditions prevailing in the Gulf at
the time. The difference is clear: unlike the specific claim, where only one
State is responsible for the act of violating international law, the generic
claim falls within the scope of ILC Article 47 because the two States are
responsible for the same act. It is the creation of dangerous conditions
for shipping and doing commerce in the Gulf which constitutes the inter-
nationally wrongful act within the meaning of Article 47.

By application of Article 47 to the generic counter-claim, the United
States could invoke the responsibility of either State, that is, also of Iran,
individually. Thus, in the principle underlying Article 47, and in the
“generic” identification of the internationally wrongful act, lies another
basis on which Iran should have been held in violation of its Treaty obli-
gations and the generic counter-claim upheld by the Court.

78. Asa result, the problem of attributing responsibility in the face of
factually “indivisible” wrongful acts — which I presented earlier as the
principal obstacle to the admission of the counter-claim — could have
been overcome pursuant both to the general principle that multiple tort-
feasors can be held responsible individually even when the damage can-
not be apportioned among them, and the principles embodied in ILC
Article 47.

79. There remains one last question: it could be argued that dealing
with the United States generic counter-claim in the direction indicated
would by necessity lead the Court to finding that Iraq, too, violated inter-
national law — a pronouncement for which the Court has no jurisdiction
in the present case. This is the essence of the so-called “indispensable-
third-party” doctrine, consecutively accepted and rejected by the Court
depending on the circumstances of the cases at hand.

80. The doctrine, first spelled out in the Monetary Gold case, holds
that the Court has no jurisdiction to decide a case where a third State’s
“legal interests would not only be affected by the decision, but would

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form the very-subject matter of the decision” ?°. Since then, the Court dis-
missed the argument in some cases as one which could not prevent the
Court from exercising jurisdiction among the parties, such as in the Nica-
ragua case, the Land, Island and Maritime Frontier Dispute (El Salva-
dor!Honduras) or the case of Certain Phosphate Lands in Nauru (Nauru
v. Australia). In other instances, the Court did apply the Monetary Gold
principle and refused to adjudicate absent the consent of the interested
third State, such as in East Timor (Portugal v. Australia).

81. Taking a closer look at the factual circumstances of each of these
cases, it appears that the concept of “indispensable third parties” has
been interpreted restrictively by the Court. In the present case, the role of
Iraq in impeding the freedom of commerce and navigation between the
United States and Iran certainly does not constitute the subject-matter of
the dispute. Moreover, any findings by the Court as to Iraq’s behaviour
would only rely on common knowledge and there would be no need for
additional evidence (i.e., proving that, because of the war, Iraq, like Iran,
contributed to the deterioration of the shipping conditions in the Gulf).
For this reason, the present case would not have fallen within the restric-
tive ambit of the doctrine of the “indispensable third party”. The mere
fact that the war in the region involved a State not party to the present
proceedings or, for that matter, to the bilateral treaty between Iran and
the United States, could not have prevented the Court from deciding
upon Iran’s responsibility under this Treaty. The Court could have found
Iran responsible without engaging in any detailed assessment of Iraq’s
actions, or rendering any decision as to Iraq’s responsibility per se.

82. Even more convincing, I believe, is the Court’s dismissal in the
Nauru case of Australia’s argument that, Australia being only one of
three States making up the Administering Authority under the Trustee-
ship Agreement, a claim could only be brought against the three of
them “jointly” but not against each of them individually. The Court
distinguished the issue of reparation in full from the question whether
Australia could be sued alone®’, and continued:

95 Case of Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judg-
ment, I.C.J. Reports 1954, p. 32. A similar principle had already been developed by the
P.C.I.J. in the Advisory Opinion on the Status of Eastern Carelia (1923, P.C.LJ., Series B,
No. 5) and by this Court in the Corfu Channel case in 1949 (I. C.J. Reports 1949).

96 In East Timor the Court clearly stated that “it is not necessarily prevented from adju-
dicating when the judgment it is asked to give might affect the legal interests of a State
which is not party to the case” (C.J. Reports 1995, p. 104, para. 34).

97 As I have also done, cf. supra paragraph 73.

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“The Court does not consider that any reason has been shown
why a claim brought against only one of the three States should be
declared inadmissible in limine litis merely because that claim raises
questions of the administration of the Territory, which was shared
with two other States.” 8

In the present case, where two States contributed to a single, indivisible
damage without having acted in concert (unlike the three States in the
Nauru case), the holding of the Court in the Nauru case applies with even
greater strength: if the Court did not see fit to declare the Nauru case
inadmissible on the basis that States acting “jointly” were absent from
the proceedings, it could not have held inadmissible the United States
counter-claim, in the context of which States were acting independently
of each other.

83. In any case, I have already mentioned that, in contrast to mine-
laying, helicopter and patrol boats attacks were clearly attributable to
Iran and also contributed to creating an impediment to the freedom of
commerce and navigation owed to the United States. Those attacks do
not raise any issue pertaining to attribution of responsibility or the absence
of Iraq from the proceedings. Had the Court rejected all other arguments,
it should at least have upheld the United States counter-claim on that
basis.

(Signed) Bruno SIMMA.

°8 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
LC J. Reports 1992, pp. 258-259, para. 48.

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