182

DISSENTING OPINION OF JUDGE RANJEVA
[Translation]

In general terms,

the reasons set out in the opinion I have appended to the Order on the
request for the indication of provisional measures made by Libya against
the United Kingdom also apply to the present Order, with the reservation
that the United States has not characterized the Applicant’s rights as
“ilusory”.

(Signed) Raymond RANJEVA.

72


12

DISSENTING OPINION BY M. ALVAREZ

[Translation]
I

On November 22nd, 1949, the Generali Assembly of the United
Nations addressed to the International Court of Justice a highly
important Request for an Advisory Opinion to which a satisfactory
answer must be given: what is really involved is the question of
the so-called ‘‘right of veto”. The discussions which have arisen
in the United Nations concerning the repeated exercise of this
right are well known.

IT

We have before us a case which involves the interpretation of
the Charter of the United Nations ; it refers therefore to a new
question of international law.

This case must not be decided in accordance with the precepts of
traditional or classic international law, which were established
on an individualistic basis and have hitherto prevailed, but
rather in accordance with the new international law, which is now
emerging.

There is no doubt that the Court must apply the existing law
to the case which has been referred to it.

What is this law to-day ? Since the recent social upheaval which
opened the greatest period in the history of humanity, profound
changes have suddenly appeared in almost all spheres of activity,
particularly in the international field. The psychology of peoples
has undergone a great change; a new universal international
conscience is emerging, which calls for reforms in the life of peoples.
This circumstance, in conjunction with the crisis which classic
international law has been traversing for some time past, has
opened the way to a new international law.

The Charter of the United Nations has created several organs,
notably the General Assembly and the International Court of
Justice. The former has adopted a number of resolutions on ques-
tions, of great importance. Under Resolution 171 of the Third
General Assembly of the United Nations, the Court was entrusted
with a mission, which was not conferred—at any rate not in
express terms—on the Permanent Court of International Justice,
namely the development and consequently the creation of law.

The Preamble of the United Nations Charter indicates the
new ‘lines along which international life has to develop; and
world public opinion has directly or indirectly given its approval
to certain principles framed by the statésmen of the Big Powers
with a view to ensuring development on those lines.

12
DISSENTING OPINION OF M. ALVAREZ 13

In this way a new international law has rapidly begun to come
into existence. It has its roots in the régime of interdependence
which has been emerging since the middle of the xixth century.

Formerly the rules of law were elaborated slowly, in accordance
with well-established conventions or customs, or these rules
were evolved, again as a slow process, by jurists. To-day, because
of the social upheaval which we have just traversed, because
of the remarkable dynamism in the life of peoples, because of
the new international organization and the institutions and
organs which this organization has created, and finally because
of the aspirations of peoples and the exigencies of modern life,
the elaboration of such new rules is rapid and sometimes even
sudden ; this elaboration is effected by means which are different
from those of former times, and in this process the factors which
have just been mentioned exert their influence.

The common view that international law must be created
solely by States is, therefore, not valid to-day—nor indeed has
it ever been.

In truth, alongside of conventional law there is customary
law, and above all the doctrines of jurists, who not only have
the opportunity of establishing custom, but have formulated
tules which have been respected by States.

In future, it is to the General Assembly of the United Nations, to
the International Court of Justice and to the jurists that we shall
look, more than to anyone, for the creation of the new interna-
tional law.

Consequently, whether in regard to old questions which assume
new aspects, or in regard to entirely new questions, the Court
has to give decisions, not in accordance with traditional inter-
national law—that would be an anomaly—but in accordance
with the international law which is now emerging and which
the Court itself is able to create.

It might be said that this law is merely lex ferenda and not
an existing law at the present time ; but both these types of law
coincide. In many cases, so far as the Court is concerned, the
tasks of determining, establishing and applying the law go hand
in hand.

What are the main characteristics of the new international law,
and what should be the aims of the organs entrusted with its creation?

{ shall confine myself for the moment to emphasizing the point
that the new international law has not only a legal, but also a
political, social, economic and even a psychological aspect.

Its point of departure is that, to-day, States are increasingly
interdependent: and that consequently they do not form a
simple community, as formerly, but rather a veritable inter-
national and organized society. This society in nowise abolishes
the independence and the sovereignty of the States, nor their
legal equality (Article 2 paragraph 1, of the Charter) ; but it limits

13
DISSENTING OPINION OF M. ALVAREZ 14

this sovereignty, and the rights which flow therefrom, in view of
the general interests of this society.

In accordance with the Preamble to the Charter, the new organ-
ization—and consequently, the new law which flows therefrom—
must have the following ends in view : to maintain peace, to con-
sider the general interest, to safeguard fundamental human rights,
to promote co-operation between States, to bring their interests
into harmony, to promote economic, social, intellectual and human-
itarian progress. The old individualistic law had none of these
purposes ; it took account only of the interests of the individual
considered in isolation. |

I will not dwell upon all the other characteristics of international
law, but will confine myself to considering briefly the points which
are related directly to the Request for an Advisory Opinion, namely :

A.—Limitation of the rights of States ;

B.—The exercise of these rights ;

C.—The abuse of right, which is intimately connected with the
two foregoing points ;

D.—The interpretation of treaties, in particular those which
have created an international organization.

HI

A.— Limitation of the rights of States. According to classic inter-
national law, the sovereignty of States, and the rights which flowed
therefrom, were absolute. Consequently, any State could exercise
its rights without limit, or rather, the sole limits were the rights of
other States (coalition of rights), and only rarely the general
interest. In addition, each State was perfectly free to exercise its
rights, and even to abuse them, without having to justify its
conduct to anybody.

To-day the situation has changed; the notion of absolute sover-
eignty has had its day. The general interest, the interests of inter-
national society, must constitute the limits of the rights of States
and make it possible to determine whether there has been an abuse
of these rights.

It would be meaningless to speak of solidarity, interdependence,
co-operation, the general interest, human happiness, etc., if States
could continue to exercise all their rights freely and without
restriction. If these concepts are to have any meaning, these rights
must be subject to the limitations which I have just outlined.

This limitation was recommended by the last General Assembly
of the United Nations in respect of a particular matter’: in one of
its resolutions, the Ad Hoc Political Committee of the Assembly
recommended that all nations should, in the use of their rights of
sovereignty, join in mutual agreement to limit the individual
exercise of those rights in respect of the control of atomic energy,

14
DISSENTING OPINION OF M. ALVAREZ 15

to the extent required for the promotion of world security and
peace. |

IV

B.—E xercise of the rights of States. The question whether, in given
circumstances, a State is or is not bound to exercise its rights, and
in what way it must exercise them, depends upon the policy of that
State, and policy is influenced by public opinion. But in no case
may the exercise of these rights degenerate into a misuse of right.

A State may remain within the limits of its right—for instance,
a right of passage—and yet may abuse this right if it takes advan-
tage of the passage to obtain information on the natural resources,
strategic bases, fortifications, etc., of the State through which the
passage takes place.

C.—Abuse of right. This concept is relatively recent in private
law, but it is already generally accepted. Even before the first World
War, some publicists had asked that it should be extended to inter-
national law. Because of the new conditions that have arisen in the
life of peoples, it is necessary to-day to find a place for this concept,
and the International Court of Justice must take its share in this
evolution.

What are the organs that will define the limits of the rights of
States and determine whether there has been abuse or not ? In the
past, no such organ had existed, because the question did not arise.
To-day, there are three very important organs, each of which has
power to act in its particular sphere—the Security Council, the
General Assembly of the United Nations and the International
Court of Justice. There are also the other organs of the United
Nations: the Economic and Social Council, the Trusteeship Council,
etc., in their respective spheres of jurisdiction.

V

D.—Interpretation of treaties, in particulax those creating an
international organization. First of all, it must be made perfectly
clear that the Court has competence to interpret the Charter of the
United Nations like any other instrument, without any limitations
whatever.

It has been contended that the Court was not competent to inter-
pret this treaty. That is not correct. Moreover, the Court has already
taken an opportunity of asserting its competence in this respect
(I.C.J. Reports 1947-1948, p. 61).

Legal texts can be interpreted by anyone; but when such an
interpretation is made by an authorized organ, such as the General
Assembly of the United Nations or the International Court of
Justice, it presents a great practical value and creates precedents.

15
DISSENTING OPINION OF M. ALVAREZ 16

Because of the progressive tendencies of international life, it
is necessary to-day to interpret treaties, as well as laws, in a
different manner than was customary when international life
showed few changes. This interpretation must be made in such
a way as to ensure that institutions and rules of law shall
continue to be in harmony with the new conditions in the life
of the peoples.

There are two considerations which support this assertion.
First, we observe that national courts, in their interpretation of
private law, seek to adapt it to the exigencies of contemporary
life, with the result that they have modified the law, sometimes
swiftly and profoundly, even in countries where law is codified
to such an extent that it is necessary to-day to take into con-
sideration not only legal texts, but also case-iaw. It is the same,
a fortiori, in the interpretation of international matter, because
international life is much more dynamic than national life.

Again, because of this very dynamism, the political aspect
of questions is tending to have precedence over the juridical
aspect. We have a very important concrete illustration of this
tendency. According to traditional international law, the state
of war still exists between the Allies and Germany, since no
peace treaty has yet been signed with the latter State. But this
situation is considered unacceptable, and efforts are being made
to bring it to an end.

It is therefore necessary to establish a theory, a technique
of interpretation. This process will reveal great differences between
the old system and the new one which will have to be applied
henceforward.

The old system possessed the ‘following characteristics :

A.—No distinction was made between treaties: the same rules

of interpretation were applied in all cases.

B.—Those who interpreted the treaties were slaves, so to speak,
of the wording. When the wording was clear, it had to be
applied literally, without taking into account the possible
consequences.

C.—When 2 text was not clear, recourse was had to the travaux
préparatoires.

D.—tThe interpretation of a given text, notably of a treaty, was,
so to speak, immutable. No change could be made, even if
the matter considered had undergone modifications.

The new system of interpretation must present other charac-
teristics :

(A) Distinctions must be made between different kinds of treaties.

A bilateral treaty concerning an ordinary question, such as extradi-

16
DISSENTING OPINION OF M. ALVAREZ 17

tion, cannot be interpreted in the same way as a political treaty.
Three categories of treaties must be specially recognized : peace
treaties, in particular those affecting world peace ; treaties creating
principles of international law; and treaties creating an inter-
national organization, notably the world organization. All these
possess both a political and a psychological character.

Peace treaties are dictated by material force ; and those creating
principles of international law, or international organizations, are
created by the majority of the participating States, for the new
signatories can only accept what has already been done. Conse-
quently, these three categories of treaties are not to be interpreted
literally, but primarily having regard to their purposes.

(B) The text must not be slavishly followed. If necessary, it must
be vivified so as to harmonize it with the new conditions of inter-
national life.

When the wording of a text seems clear, that is not sufficient
teason for following it literally, without taking into account the
consequences of its application. Multilateral treaties are not
drafted with the help of a dictionary, and their wording is often
the result of a compromise which influences the terms used in the
text.

In the case of the Polish Postal Service in Danzig, the Permanent
Court of International Justice (P.C.LJ., Series B, No. 11, p. 39)
decided that the words of a treaty must be interpreted according
to their normal meaning, unless the interpretation would thus lead
to unreasonable or absurd consequences.

It is necessary to add that to-day the same method must be
observed when the provisions of a clause appear to run counter to
the purposes of the institution concerned or to the new conditions
of international life.

There is a decisive argument applicable to this question. It has
long been held that treaties contained, implicitly, the clause rebus
sic stantibus, according to which, when the fundamental conditions
in which a treaty was made have become modified, the treaty
ceases to have effect. The correctness of this clause is so manifest
that it has recently been carried over from international to priv-
ate law.

For the same reason, it must be recognized that even the clear
provisions of a treaty must not be given effect, or must receive
appropriate interpretation, when, as a result of modifications in
international life, their application would lead to manifest injustice
or to results contrary to the aims of the institution. For, otherwise,
marked discrepancies would result between the written text and
the reality ; and that would be inadmissible.

17
DISSENTING OPINION OF M. ALVAREZ 18

But there is more: it is possible, by way of interpretation,
to attribute to an institution rights which it does not possess
according to the provisions by which it was created, provided that
these rights are in harmony with the nature and objects of the
said institution. Thus, for instance, in its Advisory Opinion of
April 11th, 1949, on the Reparation for Injuries suffered by the
United Nations, the International Court of Justice declared that,
having in view the nature and objects of that institution, it was
entitled to claim damages suffered not only by itself but by its
agents in the performance of their duties. This Court has therefore
attributed to the United Nations a right which was not expressly
conferred on that Organization by the Charter and which, accord-
ing to traditional international law, appertains solely to States.
The Court, in so doing, created a right and, as I have already
shown, it was entitled to do so.

A fortiori, the Court has the power to limit rights, or to give
them an effect other than that prescribed by the literal text where
the circumstances mentioned above make it necessary to do so.

(C) It will be necessary in future—unless in exceptional cases—
when interpreting treaties, even those which are obscure, and
especially those relating to international organizations, to exclude
the consideration of the travaux préparatoires, which was formerly
usual. The value of these documents has indeed progressively
diminished, for different reasons: (4) they contain opinions of all
kinds ; moreover, States, and even committees, have at times put
forward some idea and have later abandoned it in favour of ano-
ther ; (b) when States decide to sign a treaty, their decision is not
influenced by the travaux préparatoires, with which, in many cases,
they are unacquainted ; (c) the increasing dynamism of interna-
tional life makes it essential that the texts should continue to be
in harmony with the new conditions of social life.

It is therefore necessary, when interpreting treaties—in particu-
lar, the Charter of the United Nations—to look ahead, that is to
have regard to the new conditions, and not to look back, or have
recourse to travaux préparatoires. A treaty or a text that has once
been established acquires a life of its own. Consequently, in inter-
preting it we must have regard to the exigencies of contemporary
life, rather than to the intentions of those who framed it.

(D) The interpretation of treaties must not remain immutable;
it will have to be modified if important changes take place in the
matter to which it relates.

It results from the foregoing considerations, that it is possible,
by way of interpretation, to effect more or less important changes
in treaties, including the Charter of the United Nations. That
causes surprise to those who believe that this document is unchange-
able, but such modifications are the natural consequence of the

18
DISSENTING OPINION OF M. ALVAREZ IQ

dynamism of international life. We have to choose between the
maintenance of texts as immutable, even if they lead to unreason-
able consequences, and the modification of these texts, if that
becomes necessary. There cannot be any doubt as to the choice.

If the International Court of Justice were able by its judgments
and advisory opinions to establish a doctrine of the limitation of
the rights of States and a doctrine of the misuse of rights, and in
addition a new doctrine concerning the interpretation of treaties, it
would be rendering important services to international law and to
the cause of peace.

VI

In view of the foregoing considerations, I am unable to adhere
to the Court’s Opinion, seeing that it makes no distinction between
the reasons for which the Security Council may fail to recommend
the admission of a State as a Member of the United Nations, and
because it holds that it must consider only whether the Security
Council has or has not made a recommendation. Moreover, the
Court believes that the General Assembly has not to take any
particular steps as regards the Council if the latter has not made a
recommendation. Thus the Assembly would have onlv a somewhat
passive role.

I hold that the role of the General Assembly in the admission of
new Members is an active role, for it is the Assembly which effects
the admission.

According to paragraph 2 of Article 4 of the Charter, the Assem-
bly effects the admission of States which fulfil the conditions laid
down in that article, but it is mecessarv that the Security Council
should have recommended the State requesting admission.

Two situations may arise:

A.—The State seeking admission has failed to obtain the requisite
number of votes in the Security Council. In that case, its admission
cannot be recommended to the General Assembly. The resulting
situation resembles that which occurs in regard to the election of
Members of the International Court of Justice : in order that a judge
may be elected, he must have obtained the requisite majority both
in the Security Council and in the General Assembly ; if he does not
secure the required majority in the Council, he cannot be elected.

B.—The State seeking admission has obtained the requisite num-
ber of votes in the Council, but one of the permanent Members has
opposed the recommendation, in other words, bas made use of the
veto. This is the case which we must specially consider. T think that
the General Assembly may appraise the veto.

The right of veto has been provided by paragraph 3 of Article 27
of the Charter of the United Nations. But, if we examine the pro.
visions of Chapters V, VI, Vil and Yill to which it refers, we see

iQ
DISSENTING OPINION OF M. ALVAREZ 20

that when this right was created the only objects in view were
matters concerning the maintenance of peace and international
security. Article 24 states that the Members of the United Nations
Organization confer on the Security Council a primary responsi-
bility for the maintenance of international peace and security. The
article thus establishes something closely resembling the former
“European Directorate” created after the Napoleonic wars, but
with a universal scope. The creation of such a body is certainly
fitting and justifiable, having regard to the primary role played
by the Great Powers in case of conflict. It is entirely natural that
the Security Council should be unable to adopt decisions in matters
so grave as those of peace and security against the opposition of a
Great Power, for the latter would then be obliged to take part,
contrary to its will, in the proposed measures, and that would be
a very dangerous situation.

But the exercise of this right of veto must be kept within
proper limits. The literal text of Article 27, which established
this right, is clear, if taken in isolation ; but it is no longer clear
if we have regard to the nature and objects of the United Nations
Organization.

To decide that the right of veto may be freely exercised in
every case in which the Security Council may take action would
mean deciding that the will of a single Great Power could frustrate
the will of all the other Members of that Council and of the
General Assembly, even in matters other than the maintenance
of peace and security; and that would reduce the U.N.O. to
impotence.

Even if it is admitted that the right of veto may be exercised
freely by the permanent Members of the Security Council in
regard to the recommendation of new Members, the General
Assembly may still determine whether or not this right has been
abused and, if the answer is in the affirmative, it can proceed
with the admission without any recommendation by the Council.

It has been argued that the Security Council is alone competent
to appraise the use made by one of its permanent Members of
the right of veto, and that this is shown by the practice which
has_become established. I cannot agree with that opinion either :
the General Assembly is entitled not only to ask the Council for
what reason it has failed to recommend a State seeking admission,
but also to determine whether or not this right of veto has been
abused.

According to Articles 10 and 11 of the Charter, the General
Assembly may make recommendations to the Security Council ;
a fortiori it may make observations to that Council whenever it
sees fit. It is not necessary that the Assembly should have been
endowed with such a right in express terms, for it 1s a necessary
consequence of its powers.

20
DISSENTING OPINION OF M. ALVAREZ 2I

The above solution is consistent both with the spirit of the
Charter of the United Nations and with the requirements of
common sense.

It is consistent with the spirit of the Charter by the terms of
which the U.N.O. has a universal role, with the consequence that
all members of the international community which fulfil the
conditions laid down in Article 4 should be admitted to the United
Nations ; these States have a right to be admitted.

The solution is also consistent with the requirements of common
sense because, if it were admitted that the right of veto could
be freely exercised, the result might be—as has just been pointed
out—that a State whose request for admission had been approved
by all the Members of the Security Council except one and by
all the Members of the General Assembly would nevertheless
be unable to obtain admission to the United Nations because of
the opposition of a single country ; a single vote would thus be
able to frustrate the votes of all the other Members of the
United Nations ; and that would be an absurdity.

(Signed) ALVAREZ.

ai


609

        DISSENTING OPINION OF VICE-PRESIDENT XUE

   1. With much regret, I departed from the majority and voted against
the decision on the jurisdiction of the Court with regard to the Interna-
tional Convention for the Suppression of the Financing of Terrorism
(hereinafter the “ICSFT”). I ﬁrmly believe that the Court does not have
jurisdiction under Article 24, paragraph 1, of the ICSFT in this case.

  2. Ukraine’s claim as presented in its Application and Memorial, in my
opinion, concerns more the alleged military and ﬁnancial support by the
Russian Federation to the armed groups in the course of armed conﬂict
in eastern Ukraine, where violations of international humanitarian law
may have occurred, than the Russian Federation’s failure in preventing
and suppressing the ﬁnancing of terrorism. The materials submitted by
Ukraine do not present a plausible case that falls within the scope of the
ICSFT.

   3. Identiﬁcation of the subject-matter of the dispute is essential for the
Court to determine its jurisdiction ratione materiae. More often than not,
a dispute arises from a complicated political context, where the legal
question brought before the Court is mixed with various political aspects.
That fact alone does not preclude the Court from founding its jurisdic-
tion. As the Court pointed out in the case concerning United States Dip-
lomatic and Consular Staff in Tehran (United States of America v. Iran),
“legal disputes between sovereign States by their very nature are likely to
occur in political contexts, and often form only one element in a wider
and long-standing political dispute between the States concerned” (Judg-
ment, I.C.J. Reports 1980, p. 20, para. 37). Moreover, “never has the view
been put forward before that, because a legal dispute submitted to the
Court is only one aspect of a political dispute, the Court should decline to
resolve for the parties the legal questions at issue between them” (ibid.).
What the Court had to take into account when determining the question
of jurisdiction was whether there was connection, legal or factual, between
the “overall problem” in the context and the particular events that gave
rise to the dispute, which precluded the separate examination of the appli-
cant’s claims by the Court.

   4. The essential element in this criterion is the separability of the claim
from the overall problem. In determining the question of jurisdiction
ratione materiae, either proprio motu, or at the request of a party, the
Court has to ascertain whether the dispute can be detached or separated

55

610        application of the icsft and cerd (diss. op. xue)

from the overall political context and presented as a self-standing issue,
either in law or fact, capable of judicial settlement by the Court. When
the dispute constitutes an inseparable part of the overall problem and any
legal pronouncement by the Court on that particular dispute would nec-
essarily step into the area beyond its jurisdiction, judicial prudence and
self-restraint is required. In international judicial settlement of disputes
between States, the question of jurisdiction is just as important as merits.
This policy is designed and reﬂected in each and every aspect of the juris-
dictional system of the Court.
   5. The dispute between Ukraine and the Russian Federation arose
from the internal armed conﬂict in eastern Ukraine. Acts alleged by
Ukraine all took place during this period. Apparently, attacks that tar-
geted civilians with the intention to create “terror” in the event of an
armed conﬂict are serious violations of international humanitarian law
and human rights law. To draw a clear legal distinction between such
violations and the acts of terrorism alleged by Ukraine in the present con-
text, however, is likely diﬃcult, if not impossible. To characterize military
and ﬁnancial support from Russia’s side, by whomever possible, as ter-
rorism ﬁnancing, would inevitably bear the legal implication of deﬁning
the nature of the armed conﬂict in eastern Ukraine, which, in my view,
extends well beyond the limit of the Court’s jurisdiction under the ICSFT.
In other words, Ukraine’s allegations against the Russian Federation
under the ICSFT bear an inseparable connection with the overall situa-
tion of the ongoing armed conﬂict in eastern Ukraine. Factually, docu-
ments before the Court do not demonstrate that the alleged terrorism
ﬁnancing can be discretely examined without passing a judgment on the
overall situation of the armed conﬂict in the area ; Ukraine’s claim under
the ICSFT forms an integral part of the whole issue in eastern Ukraine.
Judicially, the Court is not in a position to resolve the dispute as pre-
sented by Ukraine.

   6. My second reason for upholding the Russian Federation’s objection
to the jurisdiction of the Court under Article 24, paragraph 1, of the
ICSFT relates to the scope of the Convention. The term “any person” in
Article 2, paragraph 1, of the ICSFT must be interpreted within the
framework of the Convention to which States parties agreed to accept.
Under Articles 3 and 7 of the ICSFT, State parties undertake to establish
in their domestic law territorial, national and universal criminal jurisdic-
tion over oﬀences deﬁned in Article 2, paragraph 1, thereof. As the Court
recalls in the Judgment, the drafting history of the Convention demon-
strates that the Convention only addresses oﬀences committed by indi-
viduals and does not cover the ﬁnancing by a State of acts of terrorism,
which lies outside the scope of the Convention (Judgment, para. 59). Dur-
ing the proceedings this point was not contested between the Parties. This
interpretation, however, becomes blurred when the meaning of the term

56

611         application of the icsft and cerd (diss. op. xue)

“any person” in Article 2, paragraph 1, is given. According to the major-
ity’s view,

      “[t]he Convention contains no exclusion of any category of persons.
      It applies both to persons who are acting in a private capacity and to
      those who are State agents. As the Court noted . . . State ﬁnancing
      of acts of terrorism is outside the scope of the ICSFT; therefore, the
      commission by a State oﬃcial of an oﬀence described in Article 2 does
      not in itself engage the responsibility of the State concerned under the
      Convention. However, all States parties to the ICSFT are under an
      obligation to take appropriate measures and to co-operate in the pre-
      vention and suppression of oﬀences of ﬁnancing acts of terrorism
      committed by whichever person. Should a State breach such an obli-
      gation, its responsibility under the Convention would arise.” (Judg-
      ment, para. 61.)

This seemingly straightforward statement unfortunately cannot be sus-
tained by the rules of State responsibility.
   7. I agree that the term “any person” does not preclude State oﬃcials
and there is no question about jurisdictional immunity. There are possible
cases where a State oﬃcial’s act may invoke the application of the Con-
vention. For example, when a State oﬃcial of State A has allegedly com-
mitted an oﬀence of terrorism ﬁnancing to a group located in State B for
conducting terrorist acts, State A, as a party to the ICSFT, is obliged to
provide legal assistance to another State party, State B, and take mea-
sures to suppress the crime. If such State oﬃcial is found in the territory
of State C, State C has to take measures to bring him to criminal justice
and provide legal assistance to State B, if the latter so requests. In either
situation, no State act is alleged.

  8. The situation in the present case is an entirely diﬀerent one ; every
act of terrorism ﬁnancing alleged by Ukraine points at the Russian Fed-
eration itself. In its Application, Ukraine requests the Court to adjudge
and declare that
      “the Russian Federation, through its State organs, State agents, and
      other persons and entities exercising governmental authority, and
      through other agents acting on its instructions or under its direction and
      control, has violated its obligations under the Terrorism Financing
      Convention by:
      (a) supplying funds, including in-kind contributions of weapons and
          training, to illegal armed groups that engage in acts of terrorism
          in Ukraine, including the DPR, the LPR, the Kharkiv Partisans,
          and associated groups and individuals, in violation of Article 18”
          (emphasis added).

57

612        application of the icsft and cerd (diss. op. xue)

Although Ukraine subsequently deleted this submission in the Memorial,
instead, accusing the Russian Federation of allowing and encouraging its
own oﬃcials to ﬁnance terrorism, the substance of its claim under the
ICSFT remains unchanged. Factually, Ukraine does not draw any dis-
tinction between its initial allegation of terrorism ﬁnancing under the
Russian Federation’s instruction and direction, and its subsequent claim
based on the Russian Federation’s permission and encouragement. It is
evident that what Ukraine has in mind is primarily the State responsibil-
ity of the Russian Federation for the acts done by its oﬃcials or agencies,
or acts allegedly instructed or directed by the Russian Federation. This
intention can be observed from Ukraine’s Memorial, where it states that
“[w]hen a State allows or encourages its own oﬃcials to ﬁnance terrorism,
it necessarily fails to take all ‘practicable measures’ to prevent the ﬁnanc-
ing of terrorism” (emphasis added). Apparently, this is a case concerning
the allegations of the ﬁnancing by a State of terrorist acts, which, as the
Court stated in the Judgment, is explicitly precluded from the scope of the
ICSFT.

  9. By virtue of the rules of attribution for the invocation of State
responsibility, acts done by State oﬃcials in the exercise of their functions
and acts instructed or directed by the State are regarded as acts of the
State in international law. In case the acts alleged by Ukraine were
proven, it would be the Russian Federation as the State that should be
held responsible for such acts under international law, regardless of indi-
vidual criminal responsibility under domestic law. The Court should not
simply, by relying on Ukraine’s amendment of its submissions, come to
the conclusion that this case is not about State’s ﬁnancing of terrorist acts
without examining the relevant elements of the scope of the Convention,
such as the term “funds”, and the nature of the alleged acts in light
of Article 2, paragraph 1, of the Convention. By narrowly focusing on
the obligations in preventing and suppressing terrorism ﬁnancing, the
Court not just unduly expands the scope of its jurisdiction ratione
materiae, but also creates confusion and uncertainty in the law of State
responsibility.

   10. Moreover, in the present case, the question whether or not the
Russian Federation allowed or encouraged military and ﬁnancial support
to the armed groups in eastern Ukraine is not a matter for the Court to
consider, as it falls outside the scope of its jurisdiction under the ICSFT.
Should the case proceed to the merits phase, however, the Court may ﬁnd
itself in a position where it has to pronounce on the above question,
which, in my view, may raise the issue of judicial propriety.
   11. Judicial policy requires the Court to avoid unnecessary prolonga-
tion of the legal process if the case does not present itself as plausible.
Proper identiﬁcation of the subject-matter of the dispute that falls within
the scope of the jurisdiction ratione materiae of the Court is essential for

58

613        application of the icsft and cerd (diss. op. xue)

the purposes of good administration of justice and judicial economy.
Loose expansion of the scope of the Court’s jurisdiction will not be con-
ducive to the peaceful settlement of international disputes, when judicial
restraint is clearly called for under the circumstances. To allow this case
to proceed to the merits phase, in my view, would neither serve the object
and purpose of the ICSFT, nor contribute to the peace process in the
region.

                                                (Signed) Xue Hanqin.

59


43

DÉCLARATION DE M. AGO

Je reste, pour ma part, convaincu que, lors de l'accès à l'indépendance
du nouvel Etat libyen, la frontière méridionale de ce pays avec les pos-
sessions françaises d'Afrique occidentale et d'Afrique équatoriale entre
Toummo et la frontière du Soudan anglo-égyptien n'avait pas encore fait
l'objet d’une délimitation conventionnelle entre les parties alors directe-
ment concernées. Mais je reconnais qu’en concluant avec la France le
traité du 10 août 1955 le Gouvernement libyen, intéressé surtout par
d’autres aspects de l’ensemble des questions à régler, avait implicitement
reconnu, à propos de ladite frontière méridionale, les déductions que le
Gouvernement français tirait des instruments mentionnés à l'annexe I
dudit traité.

C'est pour cette raison que j'ai décidé de joindre mon vote à celui de
mes collègues qui se sont exprimés en faveur de l'arrêt.

(Signé) Roberto AGo.

41


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU

CAMEROUN SEPTENTRIONAL
(CAMEROUN c. ROYAUME-UNI)

ORDONNANCE DU 3 SEPTEMBRE 1962

1962

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING

THE NORTHERN CAMEROONS
(CAMEROUN v. UNITED KINGDOM)

ORDER OF 3 SEPTEMBER 1962
La présente ordonnance doit être citée comme suit:

« À ffaire du Cameroun septentrional
(Cameroun c. Royaume-Uni),
Ordonnance du 3 septembre 1962: C.I. J. Recueil 1962, p. 313.»

This Order should be cited as follows:

“Case concerning the Northern Cameroons
(Cameroun v. United Kingdom),
Order of 3 September 1962: I.C.]. Reports 1962, p. 313.”

N° de vente: 964
Sales number

1962
Le 3 septembre
Rôle général
n° 48

313

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1962

3 septembre 1962

AFFAIRE DU

CAMEROUN SEPTENTRIONAL
(CAMEROUN c. ROYAUME-UNI)

ORDONNANCE

Le Président de la Cour internationale de Justice,

vu l’article 48 du Statut de la Cour et l’article 62 du Règlement
de la Cour;

vu l’ordonnance du 10 juillet 1962, prorogeant au 14 août 1962 le
délai fixé pour le dépôt du contre-mémoire du Royaume-Uni de
Grande-Bretagne et d'Irlande du Nord;

Considérant que le contre-mémoire du Royaume-Uni de Grande-
Bretagne et d'Irlande du Nord a été déposé dans ce délai;

Considérant que, dans ledit contre-mémoire, l'agent du Gouverne-
ment du Royaume-Uni de Grande-Bretagne et d'Irlande du Nord,
tout en énonçant les réponses de son Gouvernement aux alléga-
tions formulées sur le fond par la République du Cameroun, a
contesté la compétence de la Cour et a présenté expressément cette
contestation comme une exception préliminaire au sens de l'arti-
cle 62 du Règlement de la Cour;

Considérant qu’en conséquence, en vertu des dispositions de
l’article 62, paragraphe 3, du Règlement de la Cour, la procédure
sur le fond est suspendue et qu'il échet de fixer un délai dans lequel
la Partie adverse pourra présenter un exposé écrit contenant ses
observations et conclusions sur l’exception préliminaire,

4
314 CAMEROUN SEPTENTRIONAL (ORD. DU 3 IX 62)

Fixe au rer décembre 1962 la date d’expiration du délai dans
lequel le Gouvernement de la République fédérale du Cameroun
pourra présenter un exposé écrit contenant ses observations et
conclusions sur l’exception préliminaire soulevée par le Gouverne-
ment du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord.

Fait en francais et en anglais, le texte francais faisant foi, au
Palais de la Paix, à La Haye, le trois septembre mil neuf cent
soixante-deux, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-
tivement au Gouvernement de la République fédérale du Came-
roun et au Gouvernement du Royaume-Uni de Grande-Bretagne
et d'Irlande du Nord.

Le Président,
(Signé) B. WINIARSKI.

Le Greffier adjoint,
(Signé) S. AQUARONE.


173

DISSENTING OPINION OF PRESIDENT KLAESTAD

Iam to my regret unable to agree with the Court and shall state
my different view as briefly as possible.

I. The task of the Court is to interpret the IMCO Convention,
Article 28 (a), and to apply it to the circumstances of the present
case. This Article lays down two conditions for being elected as
Members of the group of eight. In accordance with the first con-
dition, the Members must have “an important interest in maritime
safety’. The second condition refers to the requirement of being
“the largest ship-owning nations”. It is seen from the text of
Article 28 (a) that these two conditions must both be satisfied by
Members of the group of eight. This is clearly expressed in the
French text, and it follows also from the English text, though that
text is drafted somewhat differently.

I shall now examine the first condition for being elected as Mem-
bers of the group of eight, namely that those Members must have
“an important interest in maritime safety’.

Whether a Member has ‘fan important interest in maritime
safety” is a question which cannot be determined by the application
of legal criteria. It depends essentially on the appraisal of the special
qualifications required for membership in the Maritime Safety Com-
mittee, having regard inter alta to the duties and function of that
Committee as defined by the Convention and particularly by
Article 29. The appraisal of such qualifications is clearly of a dis-
cretionary nature. This discretion cannot be exercised by the Court
but only by the electing body itself, the Assembly of the Organi-
zation.

It is contended that the Assembly was bound to consider Liberia
and Panama as States having an important interest in maritime
safety. This, it is said, follows automatically from the fact that
these two States belong to the largest ship-owning nations. It is
urged that Liberia and Panama were automatically entitled to be
elected, since they are among the eight largest ship-owning nations
on the basis of tonnage registration under their flags.

This contention is not convincing. The Court, which has to inter-
pret Article 28 (a), is confronted with the question of the election
of Members of the Maritime Safety Committee. This is clear also
from Article 16 (d). The term ‘‘election”’ (‘‘elect’’) implies, in
conformity with the natural and ordinary sense of that word, the

27
174 DISSENTING OPINION OF PRESIDENT KLAESTAD

exercise of a choice or selection. It is not compatible with any
automatic test which imposes itself on the electing body in such
a manner that no freedom of choice is left to that body.

II. It is further contended that the discretionary power to be
exercised by the Assembly with regard to the question whether a
Member has ‘‘an important interest in maritime safety’, is elimi-
nated by the second condition laid down for the election of the
group of eight Members, namely that ‘not less than eight shall be
the largest ship-owning nations”. The consideration of this con-
tention requires a more detailed examination of the text of Arti-
cle 28 (a). This text is as follows:

“The Maritime Safety Committee shall consist of fourteen Mem-
bers elected by the Assembly from the Members, governments of
those nations having an important interest in maritime safety, of
which not less than eight shall be the largest ship-owning nations,
and the remainder shall be elected so as to ensure adequate represen-
tation of Members, governments of other nations with an important
interest in maritime safety, such as nations interested in the supply
of large numbers of crews or in the carriage of large numbers of
berthed and unberthed passengers, and of major geographical
areas.

I shall first consider the French text. After having provided that
all fourteen Members must have an important interest in maritime
safety, the French text has a full stop. Thereafter it provides:
“Huit au moins de ces pays (I stress the words “‘de ces pays”) doivent
être ceux qui possèdent les flottes de commerce les plus importan-
tes”. This can in my opinion only mean that of the Members which
the Assembly has found to have an important interest in maritime
safety, not less than eight shall be ‘‘the largest ship-owning nations”.

The English text, though drafted in a different manner, must be
understood in the same way. The words ‘of which” refer to Members
which have an important interest in maritime safety. Of these
Members, that is to say: of the Members which the Assembly has
found to have such an important interest, not less than eight shall
be “‘the largest ship-owning nations”. As already said, the Assembly
has a discretionary power to decide which Members must be con-
sidered as having an important interest in maritime safety. Of the
Members which the Assembly, by exercising this discretionary
power, has found to have such an important interest, not less than
eight ‘‘shall be the largest ship-owning nations’’—that is to say:
“the largest ship-owning nations’ of the Members which the As-
sembly has found to have an important interest in maritime safety.

28
175 DISSENTING OPINION OF PRESIDENT KLAESTAD

It will easily be seen that this interpretation of Article 28 (a)
docs not render superfluous the second condition relating to ‘‘the
largest ship-owning nations” or any other part of that Article. On
the other hand, it appears to me that the interpretation of the
Court renders superfluous the first condition relating to ‘‘an im-
portant interest in maritime safety”. This would not be in accord-
ance with the usual canons of interpretation.

My interpretation of Article 28 (a), which in my view follows
directly from the text itself, is confirmed by another consideration.
As already mentioned, it is contended that the second condition
concerning “‘the largest ship-owning nations” eliminates the dis-
cretionary power of the Assembly, which follows from the first
condition. But it would not be natural—indeed it would be highly
unnatural and surprising—if the Article, after having by virtue of
its first condition conferred upon the Assembly a discretionary
power to appraise whether a Member must be considered as having
an important interest in maritime safety, should immediately
thereafter, by its second condition, have eliminated this discretion-
ary powcr. Iam unable to accept an interpretation which involves
such an obvious contradiction between the two conditions laid down
by Article 28 (a).

lt cannot rightly be argued against my interpretation of Article
28 (a) that such a discretionary power vested in the Assembly
might, in a hypothetical case, lead to abuse or arbitrariness. That
is no valid argument against the existence of a discretionary power
as such. The possibility that a discretionary power of appraisal
vested in a political body may, in extreme and hypothetical cases,
be abused by that body, does not of course prove that no such
discretionary power cxists. A power or a right may in certain cascs
be abused. Nevertheless, that power or right exists.

LL My interpretation of Article 28 (a) leads me to the view that
the Assembly, by virtue of the first condition laid down by that
Article concerning ‘an important interest in maritime safety’, had
a discretionary power not to elect Liberia and Panama as Members
of the first group of eight. The facts brought to the knowledge of
the Court do not in my opinion show that the Assembly has exer-
cised its discretionary power of appraisal in an improper or arbitrary
manner. The Assembly did not. state the reasons for its decision
and was not obliged to do so.

In such circumstances it becomes unnecessary for me to consider
more fully the second condition relating to “the largest ship-owning
nations”, and I do not express any opinion with regard to the

29
176 DISSENTING OPINION OF PRESIDENT KLAES1iaD

meaning of that ambiguous term. As already said, this second con-
dition refers, according to the text of Article 28 (a), only to Members
which the Assembly, by exercising its discretionary power, has
found to satisfy the first condition concerning ‘‘an important interest
in maritime safety’. Whatever the term “the largest ship-owning
nations” may mean—whether it should be understood as referring
to tonnage registration or to private or public, legal or beneficial
ownership, or whether some other view should be adopted—the
Question put to the Court must in my opinion be answered in the
affirmative.

(Signed) Helge KTAESTAD.

30


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING OIL PLATFORMS
(ISLAMIC REPUBLIC OF IRAN y. UNITED STATES
OF AMERICA)

COUNTER-CLAIM

ORDER OF 10 MARCH 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES PLATES-FORMES PETROLIERES
(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
D’AMERIQUE)

DEMANDE RECONVENTIONNELLE

ORDONNANCE DU 10 MARS 1998
Official citation:

Oil Platforms (Islamic Republic of Iran
v. United States of America), Counter-Claim,
Order of 10 March 1998, I.C.J. Reports 1998, p. 190

Mode officiel de citation:

Plates-formes pétrolières (République islamique d'Iran
c. Etats-Unis d'Amérique), demande reconventionnelle,
ordonnance du 10 mars 1998, C.IJ. Recueil 1998, p. 190

N° de vente:
ISSN 0074-4441 Sales number 700
ISBN 92-1-070764-8

190

INTERNATIONAL COURT OF JUSTICE
YEAR 1998

10 March 1998

CASE CONCERNING OIL PLATFORMS

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

COUNTER-CLAIM

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOLMANS, REZEK; Judge ad hoc
Ricaux; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44, 45 and 80 of the Rules of Court,

Makes the following Order:

1. Whereas, on 2 November 1992, the Government of the Islamic
Republic of Iran (hereinafter “Iran”) filed in the Registry of the Court an
Application instituting proceedings against the Government of the United
States of America (hereinafter “the United States”) in respect of a dispute
191 OIL PLATFORMS (ORDER 10 III 98)

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

whereas, in its Application, Iran, maintaining that those acts constituted
“a fundamental breach” of various provisions of the Treaty of Amity,
Economic Relations and Consular Rights between the United States of
America and Iran, which was signed in Tehran on 15 August 1955 and
entered into force on 16 June 1957 (hereinafter “the 1955 Treaty”), and
of international law, invoked Article XXI, paragraph 2, of the 1955
Treaty as the basis of the Court’s jurisdiction; and, whereas at the end of
its Application, it set out its claims as follows:

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

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

(6) that in attacking and destroying the oil platforms referred to in
the Application on 19 October 1987 and 18 April 1988, the
United States breached its obligations to the Islamic Republic,
inter alia, under Articles I and X (1) of the Treaty of Amity and
international law;

(c) that in adopting a patently hostile and threatening attitude
towards the Islamic Republic that culminated in the attack and
destruction of the Iranian oil platforms, the United States
breached the object and purpose of the Treaty of Amity, includ-
ing Articles I and X (1), and international law;

(d) that the United States is under an obligation to make repara-
tions to the Islamic Republic for the violation of its interna-
tional legal obligations in an amount to be determined by the
Court at a subsequent stage of the proceedings. The Islamic
Republic reserves the right to introduce and present to the
Court in due course a precise evaluation of the reparations
owed by the United States; and

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

2. Whereas, on 8 June 1993, within the fixed time-limit, as extended by
the Order made by the President of the Court on 3 June 1993, Iran filed
its Memorial, at the end of which it made the following submissions:
192 OIL PLATFORMS (ORDER 10 III 98)

“In the light of the facts and arguments set out above, the Gov-
ernment of the Islamic Republic of Iran requests the Court to
adjudge and declare:

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

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

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

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

3. Whereas, on 16 December 1993, within the time-limit fixed for the
filing of the Counter-Memorial, as extended by the Order made by the
President of the Court on 3 June 1993, the United States, referring to
Article 79 of the Rules of Court, raised a preliminary objection to the
jurisdiction of the Court, at the end of which it requested that the
Court “decline to entertain the case”; and whereas, by a Judgment dated
12 December 1996, the Court rejected the “objection . . . according to
which the Treaty of 1955 does not provide any basis for the jurisdiction
of the Court” and found

“that it has jurisdiction, on the basis of Article XXI, paragraph 2, of
the Treaty of 1955, to entertain the claims made by the Islamic
Republic of Iran under Article X, paragraph 1, of that Treaty”;

4. Whereas, on 23 June 1997, within the new time-limit fixed by the
Order made by the President of the Court on 16 December 1996, the
United States filed its Counter-Memorial, entitled “Counter-Memorial and
Counter-Claim”; whereas it stated, in the introduction to that Counter-
Memorial that, on the one hand, “Part VI sets forth the US counter-
claim in this case, which is based on facts directly at issue in assessing
Jran’s claim” and, on the other hand, “As required by Article 80 of the
Court’s Rules, this counter-claim is ‘directly connected with the subject-
matter’ of Iran’s claim, and ‘comes within the jurisdiction of the Court’”;
whereas, in Part VI of its Counter-Memorial, the United States sets out
the factual background, the reasons for which it considers that the Court

6
193 OIL PLATFORMS (ORDER 10 III 98)

has jurisdiction to hear the counter-claim and that the counter-claim
is admissible, and its submission that “Iran’s actions against US vessels
violated Article X of the 1955 Treaty”; and, whereas at the end of the
Counter-Memorial, it made the following submissions:

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

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

2. That the claims of the Islamic Republic of Iran are accordingly
dismissed.

With respect to its counter-claim, and in accordance with
Article 80 of the Rules of the Court, the United States requests that
the Court adjudge and declare:

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

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

The United States reserves the right to introduce and present to
the Court in due course a precise evaluation of the reparation.owed
by Iran.”

+ * x

5. Whereas, by a letter dated 23 June 1997, filed at the same time as its
Government’s Counter-Memorial, the Agent of the United States
informed the Court of the following:

“In connection with the Counter-Claim, the United States had
requested on March 26 that the Government of Iran enter into nego-
tiations for the payment of compensation to the United States for
damages incurred from Iran’s actions, on the ground that they vio-
lated Article X of the 1955 Treaty. By letter dated June 12, Iran
replied to that request, proposing instead that the Parties conduct
negotiations on a broader range of subjects. Iran’s proposal in this
respect was not acceptable to the United States. Accordingly, the
Parties have not agreed to enter into negotiations regarding the mat-
ters involved in the US Counter-Claim” ;
194 OIL PLATFORMS (ORDER 10 JI 98)

and whereas the Registrar communicated a copy of that letter, together
with the Counter-Memorial, to the Agent of Iran;

6. Whereas, in a letter dated 2 October 1997, the Agent of Iran, refer-
ring to that communication, stated as follows:

“In the Counter-Memorial and Counter-Claim of the United States
dated 23 June 1997, paragraph 6.10, it was asserted that the Gov-
ernment of the Islamic Republic of Iran has not agreed to enter into
negotiations in relation to the counter-claim. That statement was
not, however, accompanied by the correspondence which has been
exchanged between the Parties.

In order fully to inform the Court on this question, I attach hereto
copies of [that correspondence]. The Court will see that, through this
exchange of letters, Iran did agree to discuss all legal issues arising
between the United States and Iran in relation to the period covered
by the case before the Court”;

whereas, in that letter, he also stated the following:

“I should further observe that Iran has serious objections to the
admissibility of the United States counter-claim. It is Iran’s position
that the counter-claim as formulated by the United States does not
meet the requirements of Article 80 (1) of the Rules. Iran requests a
hearing on this question, as provided for in Article 80 (3) of the
Rules. Iran would wish, prior to that hearing, to submit a brief state-
ment explaining its objections to the counter-claim. In light of the
fact that the Vice-President has scheduled a meeting with the Agents
of the Parties on 17 October 1997 to consider further proceedings in
this case, | would hope that it will be possible at that meeting to dis-
cuss, amongst other issues, the procedure and modalities for the
hearing under Article 80 (3) in relation to the counter-claim” ;

and whereas the Registrar sent a copy of that letter and of its enclosures
to the Agent for the United States;

7. Whereas, on 17 October 1997, the Vice-President of the Court,
acting as President in the case by virtue of Article 13, paragraph 1, and
Article 32, paragraph 1, of the Rules of Court, held a meeting with the
Agents of the Parties in order to find out their views as to the further
proceedings in the case; whereas the two Agents agreed that their respec-
tive Governments would submit written observations on the question of
the admissibility of the United States counter-claim; and whereas the
Agent of Iran envisaged that his Government would then present oral
observations on the question;

8. Whereas, by a letter dated 20 October 1997, the Agent of the United
States, referring to the views expressed during that meeting, let it be
known that his Government

8
195 OIL PLATFORMS (ORDER 10 III 98)

“under[stood] that any order by the Court [would] limit the filing of
these submissions to the issue set forth in Rule 80 (3) of the Rules of
Court, in other words, to the connection of the counter-claim to
Iran’s claim”;

and whereas the Registrar communicated a copy of this letter to the
Agent of Iran;

9. Whereas, by a letter dated 21 October 1997, the Registrar, on the
instructions of the Court, invited the Iranian Government to specify in
writing, by 18 November 1997 at the latest, the legal grounds on which it
relied in maintaining that the Respondent’s counter-claim did not meet
the requirements of Article 80, paragraph 1, of the Rules of Court; and
whereas, in that letter, the Registrar stated that the Government of the
United States would in turn be invited to present its views on the ques-
tion during the month following the filing of Iran’s observations; and
whereas the Registrar sent a copy of that letter to the United States the
same day;

10. Whereas, by a letter dated 27 October 1997, the Agent of Iran
stated as follows:

“Iran does not share the views of the United States as expressed in
its letter of 20 October 1997 that Iran’s submissions are to be limited
to the issues set forth in Article 80, paragraph 3, of the Rules. As
provided for in Article 80, paragraph 1, of the Rules, a counter-
claim may only be presented provided that it is directly connected
with the subject-matter of the claim of the party and that it comes
under the jurisdiction of the Court. Pursuant to the Registrar’s letter
of 21 October 1997, Iran’s submissions will be directed to showing
the legal grounds why the counter-claim presented by the United
States does not meet these requirements, as indicated in Iran’s letter
of 2 October 1997.

As the Court is aware, Iran has requested a hearing pursuant to
Article 80, paragraph 3, of the Rules. Iran understands that the
Court will address this request after receiving the written submis-
sions of the Parties”;

and whereas the Registrar sent a copy of that letter to the Agent of the
United States;

11. Whereas, by a communication from its Agent dated 18 November
1997 and filed in the Registry on that day, Iran forwarded to the Court a
document entitled “Request for Hearing in Relation to the United States
Counter-Claim Pursuant to Article 80 (3) of the Rules of Court”, which
contained its observations on the admissibility of the counter-claim; and
whereas, by a letter dated 18 November 1997, the Registrar sent a copy

9
196 OIL PLATFORMS (ORDER 10 III 98)

of that document to the United States Government, and informed the
Iranian Government that he had done so that same day;

12. Whereas, in the introduction to its written observations, Iran
states that in its Judgment of 12 December 1996, the Court ruled, on the
one hand, that only Article X, paragraph 1, of the Treaty of Amity was
applicable to the Iranian claim, thereby limiting Iran “to contesting the
legality of the attack on the platforms under Article X (1)... and under no
other provision”, and, on the other hand, that “the aspect of Article X (1)
of the Treaty which relates to the present affair is that relating to free-
dom of commerce between the territories of the Parties”, the case being
thus limited to that question; whereas it submits that, “[dJespite the spe-
cific and precise nature of the issues which remained for decision as a
result of the Court’s Judgment of 12 December 1996, the Respondent has
now chosen to react by lodging a counter-claim of a sweeping and gen-
eral character”, in a way which is inconsistent “with its previously declared
position on claims under the Treaty”; whereas Iran makes the following
criticisms of this “change of position”:

“First, the United States seeks to widen the dispute to provisions
of the Treaty of Amity, Articles X (2)-(5), which were never in ques-
tion in the proceedings to date, and have never been mentioned
before by the United States. Second, the United States also seeks to
widen the dispute to include US claims concerning Iran’s overall
conduct throughout the period 1987-1988, when it has always been
its position in the preliminary objection phrase that such overall
conduct, at least in so far as it concerned the United States, was
irrelevant in this case, and specifically brought its preliminary objec-
tion to limit Iran’s claim as far as possible. Third, and most impor-
tantly, the United States has effectively refused to seek to resolve
these wider disputes by diplomatic negotiations, despite Iran’s agree-
ment to such negotiations” ;

and whereas Iran adds that the seven specific attacks described in the
counter-claim, which are alleged to have been carried out against “US
vessels”, fall “wholly outside the scope of the Treaty of Amity, and in
particular the provisions of Article X (1) dealing with freedom of com-
merce between the territories of the High Contracting Parties”, and hence
it is claimed that, “following the Court’s Judgment of 12 December 1996,
there is. . . no basis in the Treaty on which the Court can evaluate the
legality of these alleged attacks in this case”;

13. Whereas Iran states that it is “convinced that the United States
counter-claim, as formulated, is inadmissible under Article 80, para-
graph 1, of the Rules”; whereas it “therefore asks the Court to hear the
Parties pursuant to Article 80, paragraph 3, of the Rules, in order to

10
197 OIL PLATFORMS (ORDER 10 III 98)

decide whether or not the question presented in the United States
counter-claim ‘shall be joined to the original proceedings’”; and whereas
Iran states that “in summarizing its objections in its written statement, [it]
reserves the right to further particularize and develop them in the hearing
for which Article 80, paragraph 3, specifically provides” ;

14. Whereas, in the body of its written observations, Iran maintains
that neither of the two conditions required by Article 80 of the Rules of
Court for a counter-claim to be presented — namely, on the one hand,
that the counter-claim and the original claim must be “directly con-
nected” and, on the other hand, that the counter-claim must “come
within the jurisdiction of the Court” — are met in the present case;

15. Whereas Iran first of all claims that the United States counter-
claim is not sufficiently specific for the Court to be able to determine
whether it is directly connected with the principal claim; whereas it
points out that “the counter-claim is not limited to the seven incidents
referred to in paragraph 6.08” and argues that “it does nothing more
than allege unspecified Iranian interference with unspecified maritime
trade between the United States and Iran”; and whereas Iran argues
that “no counter-claim may be filed after submission of the Counter-
Memorial”, it challenges the right which the United States reserves
“to add further instances of Iranian attacks on US vessels in the [Persian]
Gulf in 1987-1988”, whilst noting that “in any event, in the case of
each such instance which the United States may subsequently seek to
introduce, it would be necessary to apply the test of admissibility under
Article 80 of the Rules”;

16. Whereas Iran then states that there is no direct connection between
the counter-claim and the principal claim, either general, or with regard
to the specific cases of attacks which, according to the counter-claim,
were allegedly carried out on “United States shipping” ;

17. Whereas, as regards the first point, Iran explains its position as
follows:

“To the extent that the United States Counter-Claim consists of a
general assertion of the violation of freedom of commerce and navi-
gation between the United States and Iran, either under Article X (1)
or under Article X (3)-(5), there is not even the appearance of any
legal or factual connection between such a violation and the attacks
on the platforms. The United States did not attack the platforms
because of any alleged Iranian attacks on vessels engaged in trade
between Iran and the United States, whether or not such vessels
were US vessels within the meaning of Article X (2)”;

11
198 OIL PLATFORMS (ORDER 10 III 98)

18. Whereas Iran, having furthermore analysed each of the specific
attacks on vessels alleged by the Respondent in detail, from the stand-
point of the admissibility of the counter-claim, states that that analysis
“is based on the presentation of these incidents made by the United
States” and “is entirely without prejudice to Iran’s position at any sub-
sequent phase of the present proceedings” ; and whereas at the end of that
analysis Iran concludes first of all that “no fewer than six incidents
involved vessels which were not .. . engaged in commerce or even naviga-
tion between the territories of the High Contracting Parties” and that
those incidents are accordingly “irrelevant to a counter-claim which is
founded on an assertion of a violation of freedom of commerce and navi-
gation between the two countries”; whereas Iran concludes secondly that,
although the seventh vessel (the Texaco Caribbean) was, it could be
argued, “covered by Article X (1) of the Treaty which is the provision by
reference to which the legality of the attack on the platforms is to be
appreciated”, that vessel was not a United States flagged vessel and “in
any event, there is no factual or legal link whatever between the alleged
attack on the Texaco Caribbean and the attacks on the platforms”; and
whereas, thirdly, Iran concludes, on the one hand, that

“even assuming that there may be a sufficient legal link (connexité
juridique) between claims of a breach of freedom of commerce
under Article X (1) of the Treaty (which pursuant to the Court’s
Judgment of 12 December 1996 now forms the sole basis of Iran’s
Application) and claims of breaches of freedom of navigation under
Articles X (3)-(5), only two of the incidents involved US vessels
within the meaning of Article X (2) which were even arguably
covered by those paragraphs (Bridgeton and Sea Isle City)”

and, on the other hand, that “[iln any event, none of these incidents, even
on the facts alleged by the United States, raises, even arguably, a case of
violation of Article X (3)-(5)”;

19. Whereas, whilst restating its position that the United States
counter-claim does not come within the jurisdiction of the Court and is
therefore inadmissible, on this ground also, Iran observes moreover that
“it is... not entirely clear from the language of Article 80, paragraph 3,
of the Rules whether the hearing for which that paragraph provides
extends to cover an objection . . . based on lack of jurisdiction”; whereas
Iran recognizes that, although “a State is normally entitled to question
the Court’s jurisdiction over a claim prior to being called on to respond
to the merits of that claim”, “proceedings under Article 80 are [not] a
substitute for a preliminary objection”, since the hearing for which
Article 80, paragraph 3, provides “is evidently intended to be a brief one,

12
199 OIL PLATFORMS (ORDER 10 III 98)

to which the protective provisions of Article 79 of the Rules do not as
such apply” ; whereas Iran considers that “the decision the Court is called
upon to make under Article 80, paragraph 3, concerns exclusively the
question of whether or not the counter-claim should be joined to the
original proceedings” and does not prejudice in any way the right of the
party objecting to the counter-claim “to make any defence relating either
to the admissibility or to the merits of the counter-claim in a subsequent
phase of the proceedings”; whereas, therefore, Iran “reserves the right,
if necessary, to lodge preliminary objections in respect of the United
States counter-claim” ; and whereas it notes however that “the fact that a
counter-claim is plainly outside the Court’s jurisdiction is relevant for the
purposes of Article 80, paragraph 3” in so far as, on the one hand “a
counter-claim which fails to satisfy the express requirement imposed by
Article 80, paragraph 1, should not be joined to the original proceedings,
whether the failure relates to lack of connection or lack of jurisdiction”,
and, on the other hand, “there may well be a link between an evident lack
of jurisdiction and the lack of direct connection” as, Iran alleges, is the
case here;

20. Whereas, in the concluding remarks to its written observations,
Iran alleges that, in general, the State responding to the counter-claim is
“at a significant disadvantage” since it “is apparently confined to a single
written pleading, whereas the counter-claimant will have both the first
and the last written word on the matter”; whereas Iran maintains that in
this instance “the generalized claim of the United States with respect to
the period of 1987-1988 covers a series of incidents with respect to which
Iran has important additional claims of its own”, and whereas, “[ilf the
United States counter-claim was admitted, Iran would necessarily be
forced to seek leave to introduce such claims”, otherwise it would be
“severely prejudiced”; and whereas Iran also argues that “[ijf the case
were to be widened in the way proposed by the United States, this might
also prejudice third States’ interests”, since “Article 40, paragraph 3, of
the Statute of the Court only provides that a new case is notified to third
States” and that “[no] such provision is made with respect to
counter-claims” :

21. Whereas, by a communication from its Agent dated 18 December
1997 and received in the Registry on that day, the United States submit-
ted to the Court its observations on the admissibility of the counter-claim
set out in its Counter-Memorial, taking the observations submitted by
Iran into consideration; and whereas, by a letter dated 18 December
1997, the Registrar communicated a copy of the observations of the
United States Government to the Iranian Government, informing the lat-
ter, on the one hand, that the Court would decide on future proceedings
on the basis of the documents now before it and, on the other hand, that

13
200 OIL PLATFORMS (ORDER 10 III 98)

the Agents of the Parties would be informed of the decision in due
course; and whereas, the same day, the Registrar transmitted that infor-
mation to the Government of the United States;

22. Whereas, in the introduction to its written observations, the United
States submits that Iran’s request for a hearing on the matter was made
pursuant to Article 80, paragraph 3, of the Rules of Court and that:

“Under the Rules of Court, the only legally relevant issue now is
whether there is ‘doubt’ as to whether the US counter-claim is
‘directly connected to the subject-matter’ of Iran’s claim. Here, there
can be no such doubt. There is therefore no basis for Iran’s demand
for a hearing or for its insistence that the counter-claim not be joined
to the original proceedings” ;

whereas the United States maintains that Iran “asks the Court . . . to
address issues going far beyond the limits of Article 80 (3), including
sweeping objections to jurisdiction and admissibility of the counter-
claim”; whereas, in the first part of its observations, the United States
submits that Iran “essentially seeks a separate procedure similar to pre-
liminary objections under Article 79” and draws, between the proceed-
ings provided for, respectively, in Article 79 and in Article 80 of the Rules
of Court, analogies which are “false” in so far as “the Party facing the
counter-claim initiated the case and chose the forum”; and whereas it
draws the attention of the Court to the following:

“Moreover, the Court could face great practical difficulties in
seeking to resolve Iran’s objections to admissibility at this stage in the
context of Article 80 (3). Many of Iran’s objections to jurisdiction
and admissibility involve contested matters of fact which the Court
cannot effectively address and decide at this stage, particularly
not in the context of the abbreviated procedures of Article 80 (3).

3 Should the Court decide to consider these issues in the present context, the
United States would have to request a further opportunity to address them in
greater detail in writing before the Court rendered any decision” ;

23. Whereas the United States considers that “Iran . . . regularly mis-
characterizes the key legal requirements of Article 80”; whereas the
United States points out that under that provision the counter-claim
must be directly connected “to the subject-matter of the claim, not to the
claim itself”; whereas from this it infers that “[a] proper counter-claim
need not be a mirror image of the claim or rest upon precisely the same

14
201 OIL PLATFORMS (ORDER 10 III 98)

theory or facts” but that it “must be sufficiently linked to the facts or
circumstances giving rise to the claim — the ‘subject-matter’ — to enable
the Court to address both efficiently in the context of a single proceed-
ing”; whereas it argues that for the Court to rule, within a single pro-
ceeding, on claims where there are substantial common elements “helps
to reduce the burden on the Court .. . guards against inconsistent results,
and helps the Court to reach a just and rational result”; and whereas,
having analysed the case-law of the Court and of its predecessor, it
reaches the conclusion that the decisions of those two Courts reflect “this
practical understanding of the necessary connection between claim and
counter-claim” ;

24, Whereas, in the second part of its written observations, the United
States seeks to show that its counter-claim is “directly connected to the
subject-matter” of Iran’s claim; whereas it accuses Iran of putting for-
ward an “artificial and illogical definition of the subject-matter of the
[main] claim” by asking the Court “to consider only the US defensive
actions against [Iran’s] platforms” and “to exclude Iran’s prior conduct
leading to those actions”; and whereas it maintains that the factual con-
nection between the subject-matter of Iran’s case and the United States
counter-claim is direct and compelling since

“the facts and circumstances that caused the United States to engage
Iran’s oil platforms — Iranian attacks on, and threats to, merchant
shipping, including US shipping and US nationals — are at the heart
of the US defence to Iran’s claims”

and “[t]hese same facts and circumstances are likewise the basis of the US
counter-claim” ;

25. Whereas the United States goes into greater detail of Iran’s alleged
actions which, according to the United States, justified “under . . . the law
of self-defence and the 1955 Treaty’s provision”, the “defensive actions”
which it took, in October 1987, against the Rostam Platform, then,
in April 1988, against the Sirri and Sassan Platforms; and whereas it
explains that in committing those acts Iran violated the 1955 Treaty, not
only because the “seven specific Iranian attacks” which it describes dam-
aged its vessels, but also because the consequences of Iran’s conduct for
the overall exercise of navigational rights protected by the 1955 Treaty
were the following:

“Tran’s pattern of armed attacks against neutral shipping created
threatening conditions which interfered with the ability of all US-
flag and US-owned ships and US nationals to exercise their rights
under the Treaty. Substantial damages resulted, including increases
in the costs of operating both US-flag and US-owned commercial
vessels and the warships protecting them. Insurance and labour

15
202 OIL PLATFORMS (ORDER 10 III 98)

costs increased; steaming times increased; vessels were forced to
carry smaller cargoes in order to pass through the relative safety of
shallower waters” ;

26. Whereas the United States, whilst it maintains that the Iranian
objections to the jurisdiction of the Court to entertain its counter-claim
“are not appropriate for consideration at this stage [of the case]”, intends
nonetheless “[to] comment briefly on some of Iran’s argument concerning
the 1955 Treaty”; whereas it alleges that “Iran’s jurisdictional arguments
seek to force all of the US counter-claim into the confines of Article X (1)
of the 1955 Treaty”, of which it provides a debatable interpretation, and
whereas “[iJssues involving the relationship between that Article and the
US counter-claim await the Court’s eventual decision regarding the inter-
pretation and application of that Article”; whereas it argues that “Iran’s
specific objections to the application of paragraphs X (2) through X (5)
of the Treaty are without merit”, in so far as, inter alia, “these provisions
are not limited to ships involved in trade between the United States and
Iran”; and whereas it adds that “the exclusion of warships in Article X (6)
is not applicable to Article X (5)”, since attacks on United States war-
ships protecting United States commercial vessels must “be viewed as
endangering and denying access to those commercial vessels as well” ;

27. Whereas the United States rejects the Iranian contention that the
United States counter-claim “is not admissible because it is not framed
clearly or with sufficient precision”; whereas it asserts that the counter-
claim “has been stated with sufficient precision to be understood by
Iran”; and whereas it observes that, although it has reserved the right to
prove other Iranian ship attacks, “Iran itself has frequently sought to
reserve the right to prove additional matters supporting its claims”;

28. Whereas the United States also denies that there is any basis to the
Iranian argument that it too could have made a counter-claim, pointing
out that “Iran initiated [these proceedings], asserting claims that it alone
selected” ; and whereas it denies that its counter-claim affects the rights of
third parties since “[t]he other States potentially interested in the . ..
counter-claim have indicated their consent or lack of objection to the
counter-claim” ;

29. Whereas, in the third part of its written observations, the United
States reiterates its conviction that, contrary to what is maintained by

16
203 OIL PLATFORMS (ORDER 10 III 98)

Iran, no hearing is required in the present circumstances; it points out
that the expression “after hearing the Parties”, which appears in para-
graph 3 of Article 80 of the Rules “comels] into operation only if the
Court determines that there is ‘doubt’ as to the requisite ‘connection
between the question presented by way of counter-claim and the subject-
matter’ ”, which is not the case here; and whereas it adds that “[t]he prin-
ciples of justice and of sound judicial administration require no different
result” since “[t]he question of connection . . . here is simple and straight-
forward” and that “[t]he relevant considerations are fully explained in the
papers submitted by the Parties”;

30. Whereas, in its concluding observations, the United States submits
that “the Court should now decide to join the questions presented by the
US counter-claim to the original proceeding” since “[bloth claim and
counter-claim arise out of the same circumstances and require the Court
to examine and decide many of the same factual and legal issues” ;

31. Whereas, having regard to Article 80, paragraph 3, of its Rules,
and having received detailed written observations from each of the Parties,
the Court is sufficiently well informed of the positions they hold with
regard to the admissibility of the claims presented as counter-claims by
the United States; and whereas, accordingly, it does not appear necessary
to hear the Parties further on the subject;

x * x

32. Whereas in this case Iran does not dispute that the United States
claim is presented not as a defence on the merits, but as a “counter-
claim” within the meaning of Article 80 of the Rules of Court; whereas it
is not disputed that the claim has been “made in the Counter-Memorial
of the party presenting it, and [appears] as part of the submissions of that
party”, in accordance with Article 80, paragraph 2; whereas, however,
Iran denies that the counter-claim meets the requirements of “jurisdic-
tion” and of “direct connection” set out in Article 80, paragraph 1, and
whereas it falls to the Court to determine whether these requirements are
met in this particular case;

33. Whereas the Court has already had occasion to state the reasons
why the admissibility of a counter-claim as such is contingent on those
conditions in the following terms:

“Whereas the Respondent cannot use a counter-claim as a means of
referring to an international court claims which exceed the limits of its
jurisdiction as recognized by the parties; and whereas the Respondent
cannot use that means either to impose on the Applicant any claim it
chooses, at the risk of infringing the Applicant’s rights and of compro-
mising the proper administration of justice; and whereas it is for that
reason that paragraph 1 of Article 80 of the Rules of Court requires

17
204 OIL PLATFORMS (ORDER 10 III 98)

that the counter-claim ‘comes within the jurisdiction of the Court’ and
‘that it is directly connected with the subject-matter of the claim of the
other party’” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Order of 17 December 1997,
1. C.J. Reports 1997, pp. 257-258, para. 31);

* OK

34. Whereas the Court has found, in its Judgment of 12 December
1996, that its jurisdiction in the present case covers claims made under
Article X, paragraph 1, of the 1955 Treaty, which is worded as follows:
“Between the territories of the two High Contracting Parties there shall
be freedom of commerce and navigation”;

35. Whereas, in its Judgment of 12 December 1996, the Court indi-
cated, inter alia,

“it would be a natural interpretation of the word ‘commerce’, in Ar-
ticle X, paragraph 1, of the Treaty of 1955 that it includes commer-
cial activities in general — not merely the immediate act of purchase
and sale, but also the ancillary activities integrally related to com-
merce” (Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgment, I C.J. Reports 1996,
p. 819, para. 49).

and whereas it added that:

“Article X, paragraph 1, of the Treaty of 1955 does not strictly
speaking protect ‘commerce’ but ‘freedom of commerce’. Any act
which would impede that ‘freedom’, is thereby prohibited. Unless
such freedom is to be rendered illusory, the possibility must be enter-
tained that it could actually be impeded as a result of acts entailing
the destruction of goods destined to be exported, or capable of
affecting their transport and their storage with a view to export”
(ibid., para. 50);

36. Whereas the counter-claim presented by the United States alleges
attacks on shipping, the laying of mines, and other military actions said
to be “dangerous and detrimental to maritime commerce”; whereas such
facts are capable of falling within the scope of Article X, paragraph 1, of
the 1955 Treaty as interpreted by the Court; and whereas the Court has
jurisdiction to entertain the United States counter-claim in so far as the
facts alleged may have prejudiced the freedoms guaranteed by Article X,
paragraph 1;

+ *

37. Whereas the Rules of Court do not define what is meant by
“directly connected” ; whereas it is for the Court, in its sole discretion, to

18
205 OIL PLATFORMS (ORDER 10 III 98)

assess whether the counter-claim is sufficiently connected to the principal
claim, taking account of the particular aspects of each case; and whereas,
as a general rule, the degree of connection between the claims must be
assessed both in fact and in law;

38. Whereas, in the present case, it emerges from the Parties’ submis-
sions that their claims rest on facts of the same nature; whereas they
form part of the same factual complex since the facts relied on —
whether involving the destruction of oil platforms or of ships — are
alleged to have occurred in the Gulf during the same period; whereas the
United States indicates, moreover, that it intends to rely on the same
facts and circumstances in order both to refute the allegations of Iran and
to obtain judgment against that State; and whereas, with their respective
claims, the two Parties pursue the same legal aim, namely the establish-
ment of legal responsibility for violations of the 1955 Treaty;

39. Whereas the Court considers that the counter-claim presented by
the United States is directly connected with the subject-matter of the
claims of Iran;

x O*

40. Whereas in the light of the foregoing, the Court considers that the
counter-claim presented by the United States satisfies the conditions set
forth in Article 80, paragraph 1, of the Rules of Court;

a * x

41. Whereas a decision given on the admissibility of a counter-claim
taking account of the requirements set out in Article 80 of the Rules in no
way prejudges any question which the Court will be called upon to hear
during the remainder of the proceedings;

42. Whereas in order to protect the rights which third States entitled
to appear before the Court derive from the Statute, the Court instructs
the Registrar to transmit a copy of this Order to them;

43. Whereas when, in accordance with the provisions of its Rules, the
Court decides, in the interests of the proper administration of justice, to
rule on the respective claims of the parties in a single set of proceedings,
it must not, for all that, lose sight of the interest of the Applicant to have
its claims decided within a reasonable period of time;

44. Whereas, during the meeting which the Vice-President of the Court
held on 17 October 1997 with the Agents of the Parties (see paragraph 7
above), the Agents envisaged a new exchange of written pleadings on the
merits; and whereas the Agent of Iran, when asked about the time his
Government would need in order to present a Reply, if such proved
necessary, indicated that, without prejudice to the question of whether
that pleading should also cover the counter-claim, a time-limit of one year

19
206 OIL PLATFORMS (ORDER 10 III 98)

as from the date of filing of the Counter-Memorial would seem necessary
to reply to it; and whereas at the end of its written observations (see
paragraphs 21 et seg. above), the United States expressed itself as follows
in that connection:

_ “As to the schedule of future proceeding on the merits of this case,
the United States would not object should Iran ask under Article 45 (2)
of the Rules of Court for permission to submit a Reply to the US
Counter-Memorial to accompany its defence to the US counter-
claim, if the United States is also authorized to file a Rejoinder. The
United States notes, however, that Iran received the US Counter-
Memorial and Counter-Claim late in June 1997, nearly six months
ago. Iran thus already has had as long to study the US document as
the United States had to write it. Therefore Iran should be required
to submit any Reply within six months. The United States should
then be given as much time to prepare its Rejoinder as Iran will have
had from June 1997 to the filing of its Reply”;

45. Whereas, taking into account the conclusions it has reached above,
the Court considers that it is necessary for Iran to file a Reply and for the
United States to file a Rejoinder relating to the claims of both Parties;
and whereas it is necessary moreover, in order to ensure strict equality
between the Parties, to reserve the right of Iran to present its views in
writing a second time on the United States counter-claim, in an addi-
tional pleading the filing of which may be the subject of a subsequent
Order;

46. For these reasons,
THE CouRT,

(A) By fifteen votes to one,

Finds that the counter-claim presented by the United States in its
Counter-Memorial is admissible as such and forms part of the current
proceedings;

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooij-
mans, Rezek;

AGAINST: Judge ad hoc Rigaux;

20
207 OIL PLATFORMS (ORDER 10 IIT 98)

(B) Unanimously,

Directs Iran to submit a Reply and the United States to submit a
Rejoinder relating to the claims of both Parties and fixes the following
dates as time-limits for the filing of these pleadings:

For the Reply of Iran, 10 September 1998;
For the Rejoinder of the United States, 23 November 1999; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this tenth day of March, one thousand nine
hundred and ninety-eight, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Islamic Republic of Iran and the Government of the United States
of America, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judges Opa and Hicains append separate opinions to the Order of the
Court.

Judge ad hoc RiGAux appends a dissenting opinion to the Order of the
Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

21