CASE CONCERNING OIL PLATFORMS

ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA

The Judgement of ICJ

6 November 2003

THE COURT, after deliberation,

delivers the following Judgment:

1. On 2 November 1992, the Government of the Islamic Republic of Iran (hereinafter called
“Iran”) filed in the Registry of the Court an Application instituting proceedings against the
Government of the United States of America (hereinafter called “the United States”) in respect of a
dispute
“aris[ing] out of the attack [on] and destruction of three offshore oil production
complexes, owned and operated for commercial purposes by the National Iranian Oil
Company, by several warships of the United States Navy on 19 October 1987 and
18 April 1988, respectively”.

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

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was immediately
communicated to the Government of the United States by the Registrar; and, pursuant to
paragraph 3 of that Article, all States entitled to appear before the Court were notified of the
Application.
3. By an Order of 4 December 1992 the President of the Court fixed 31 May 1993 as the
time-limit for the filing of the Memorial of Iran and 30 November 1993 as the time-limit for the
filing of the Counter-Memorial of the United States.
4. By an Order of 3 June 1993 the President of the Court, at the request of Iran, extended to
8 June 1993 the time-limit for the filing of the Memorial; the time-limit for the filing of the
Counter-Memorial was extended, by the same Order, to 16 December 1993.
Iran duly filed its Memorial within the time-limit as thus extended.

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

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

6. Since the Court included upon the Bench no judge of Iranian nationality, Iran availed itself
of its right under Article 31, paragraph 2, of the Statute of the Court to choose a judge ad hoc to sit
in the case: it chose Mr. Fran.ois Rigaux.
7. Between 16 and 24 September 1996, the Court held public hearings on the preliminary
objection raised by the United States.
8. By a Judgment dated 12 December 1996 the Court rejected the preliminary objection of
the United States according to which the 1955 Treaty did not provide any basis for the jurisdiction
of the Court and found that it had jurisdiction, on the basis of Article XXI, paragraph 2, of the
1955 Treaty, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty.
9. By an Order of 16 December 1996 the President of the Court fixed 23 June 1997 as the
time-limit for the filing of the Counter-Memorial of the United States.
Within the time-limit thus fixed, the United States filed its Counter-Memorial; this included
a counter-claim concerning “Iran’s actions in the Gulf during 1987-88 which, among other things,
involved mining and other attacks on U.S.-flag or U.S.-owned vessels”.

10. In a letter of 2 October 1997 Iran expressed its opinion that “the counterclaim as
formulated by the United States [did] not meet the requirements of Article 80 (1) of the Rules” and
its wish “to submit a brief statement explaining its objections to the counterclaim”.
At a meeting held on 17 October 1997 with the Agents of the Parties by the Vice-President
of the Court, acting as President in the case by virtue of Article 13, paragraph 1, and Article 32,
paragraph 1, of the Rules of Court, the two Agents agreed that their respective Governments would
submit written observations on the question of the admissibility of the United States
Counter-Claim.

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

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

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

present its views in writing a second time on the United States counter-claim, in an

additional pleading the filing of which [might] be the subject of a subsequent Order”.

12. By Order of 26 May 1998, at the request of Iran, the Vice-President of the Court, acting
as President in the case, extended the time-limits for the filing of the Reply of Iran and of the
Rejoinder of the United States to, respectively, 10 December 1998 and 23 May 2000. By Order of
8 December 1998, at the request of Iran, the Court subsequently extended the time-limits for the
filing of the Reply and of the Rejoinder to 10 March 1999 and 23 November 2000 respectively.
Iran duly filed its “Reply and Defence to Counter-Claim” within the time-limit as thus
extended.

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

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

13. By a letter dated 30 July 2001, the Agent of Iran, referring to the above-mentioned Order
of 10 March 1998, informed the Court that his Government wished to present its views in writing a
second time on the Counter-Claim of the United States.
By an Order of 28 August 2001 the Vice-President of the Court, taking account of the
agreement of the Parties, authorized the submission by Iran of an additional pleading relating solely
to the Counter-Claim submitted by the United States and fixed 24 September 2001 as the time-limit
for the filing of that pleading.

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

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

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

15. At the meeting of 6 November 2002, the Agents of the Parties informed the President of
the Court that they had decided not to present witnesses at the oral proceedings. The Agent of the
United States nevertheless expressed his Government’s intention, under Article 56 of the Rules, to
file a new document containing an analysis and explanations by experts concerning certain
evidence already produced in the case. The Agent of Iran stated that his Government reserved all
its rights with regard to the production of that document. On 20 November 2002, the United States
filed an expert’s report dated 18 November 2002, together with a copy of a diplomatic Note dated
20 November 2002 from the Royal Norwegian Embassy in Washington D.C. to the United States
Department of State. By a letter dated 20 January 2003, the Agent of Iran informed the Court that
his Government did not object to the production of the above-mentioned documents by the United
States and requested that, pursuant to Article 56, paragraph 3, of the Rules of Court, the comments
of an expert of Iran on the expert report of the United States “be made part of the record in the
case”. On 22 January 2003, the Court decided to authorize the production of the above-mentioned
documents by the United States and the submission of the comments by Iran; by letters dated the
same day, the Registrar communicated this decision to the Parties.
16. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having consulted the Parties,
decided that copies of the pleadings and documents annexed would be made accessible to the
public on the opening of the oral proceedings on the merits.
17. Public sittings were held between 17 February and 7 March 2003, at which the Court
heard the oral arguments and replies on the claim of Iran and on the counter-claim of the United
States by:
For Iran: Mr. M. H. Zahedin-Labbaf,
Mr. James R. Crawford,
Mr. D. Momtaz,
Mr. Rodman R. Bundy,
Mr. Alain Pellet,
Mr. S. M. Zeinoddin,
Mr. David S. Sellers,
Mr. Michael Bothe.
For the United States: The Honourable William H. Taft, IV,
Mr. Paul Beaver,
Mr. D. Stephen Mathias,
Mr. Ronald D. Neubauer,
Mr. John Moore,
Mr. Ronald J. Bettauer,
Mr. Michael J. Mattler,
Mr. Michael J. Matheson,
Mr. Prosper Weil,
Mr. Sean Murphy.

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

*

18. In the Application, the following requests were made by Iran:
“On the basis of the foregoing, and while reserving the right to 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;
(b) 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,
including Articles I and X (1), and international law;
(d) that the United States is under an obligation to make reparations to the Islamic
Republic for the violation of its international legal 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.”
19. In the written proceedings, the following submissions were made by the Parties:
On behalf of the Government of Iran,

in the Memorial:

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

1. That the Court has jurisdiction under the Treaty of Amity to entertain the dispute
and to rule upon the claims submitted by Iran;
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
international 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 proceedings. Iran reserves the right to introduce and present to the Court in
due course a precise evaluation of the reparation owed by the United States; and
4. Any other remedy the Court may deem appropriate”;
in the “Reply and Defence to Counter-Claim”:

“With regard to Iran’s claims, and in the light of the facts and arguments set out
above, and subject to the reservations set out in Chapter 12 above, the Government of
the Islamic Republic of Iran requests the Court to adjudge and declare:

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil
platforms referred to in Iran’s Application, the United States breached its
obligations to Iran under Article X (1) of the Treaty of Amity, and that the United
States bears responsibility for the attacks; and
2. That the United States is accordingly under an obligation to make full reparation
to Iran for the violation of its international legal obligations and the injury thus
caused in a form and amount to be determined by the Court at a subsequent stage
of the proceedings, the right being reserved to introduce and present to the Court
in due course a precise evaluation of the reparation owed by the United States;
and
3. Any other remedy the Court may deem appropriate.
With regard to the United States’ counter-claim, and in light of the facts and
arguments set out above, and subject to the reservations set out in Chapter 12 above,
and, in view of the present uncertain nature of the United States’ counter-claim,
further subject to the reservation of Iran’s right to amend these submissions, Iran
requests the Court to adjudge and declare:

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1. That the United States’ counter-claim does not fall within the scope of
Article X (1) of the Treaty of Amity as interpreted by the Court in these
proceedings, and accordingly that the counter-claim should be dismissed.
2. That the United States’ counter-claim is, in any event, inadmissible:
(a) generally, in that the United States has not satisfied the requirements of
Article XXI of the Treaty of Amity with respect to the satisfactory
diplomatic adjustment of the claim;
(b) in any event, to the extent that it relates to vessels which were not of United
States nationality or whose United States flag was not opposable to Iran at
the time.
3. That Iran did not, in any event, breach its obligations to the United States under
Article X (1) of the Treaty of Amity as interpreted by the Court in these
proceedings.
4. That accordingly the United States’ counter-claim be dismissed”;
in the additional pleading entitled “Further Response to the United States’ Counter-Claim”:

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

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

On behalf of the Government of the United States,

in the “Counter-Memorial and Counter-Claim”:

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

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

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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 obligation to make full
reparation to the United States for violating the 1955 Treaty in a form and amount
to be determined by the Court at a subsequent stage of the proceedings.
The United States reserves the right to introduce and present to the Court in due
course a precise evaluation of the reparation owed by Iran”;

in the Rejoinder:

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

1. That the United States did not breach its obligations to the Islamic Republic of
Iran under Article X, paragraph 1, of the 1955 Treaty 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, the United States requests that the Court
adjudge and declare:

1. Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf
with mines and missiles and otherwise engaging in military actions that were
dangerous and detrimental to maritime commerce, the Islamic Republic of Iran
breached its obligations to the United States under Article X of the 1955 Treaty,
and
2. That the Islamic Republic of Iran is accordingly under an obligation to make full
reparation to the United States for its breach of the 1955 Treaty in a form and
amount to be determined by the Court at a subsequent stage of the proceeding.
The United States reserves the right to introduce and present to the Court in due
course a precise evaluation of the reparation owed by Iran.”

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

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On behalf of the Government of Iran,

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

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

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil
platforms referred to in Iran’s Application, the United States breached its
obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that
the United States bears responsibility for the attacks; and
2. That the United States is accordingly under an obligation to make full reparation
to Iran for the violation of its international legal obligations and the injury thus
caused in a form and amount to be determined by the Court at a subsequent stage
of the proceedings, the right being reserved to Iran to introduce and present to the
Court in due course a precise evaluation of the reparation owed by the United
States; and
3. Any other remedy the Court may deem appropriate”;
at the hearing of 7 March 2003, on the counter-claim of the United States:

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

That the United States counter-claim be dismissed.”

On behalf of the Government of the United States,

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

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

(1) that the United States did not breach its obligations to the Islamic Republic of
Iran under Article X, paragraph 1, of the 1955 Treaty between the United States
and Iran; and
(2) that the claims of the Islamic Republic of Iran are accordingly dismissed.
With respect to its counter-claim, the United States requests that the Court
adjudge and declare:

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

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

* *

21. The task of the Court in the present proceedings is to determine whether or not there
have been breaches of the 1955 Treaty, and if it finds that such is the case, to draw the appropriate
consequences according to the submissions of the Parties. The Court is seised both of a claim by
Iran alleging breaches by the United States, and of a counter-claim by the United States alleging
breaches by Iran. Its jurisdiction to entertain both the claim and the counter-claim is asserted to be
based upon Article XXI, paragraph 2, of the 1955 Treaty.
22. The Court recalls that, as regards the claim of Iran, the question of jurisdiction has been
the subject of a judgment, given on 12 December 1996, whereby the Court found “that it has
jurisdiction, on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims
made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty” (I.C.J. Reports
1996 (II), p. 821, para. 55 (2)); certain questions have however been raised between the Parties as
to the precise significance or scope of that Judgment, which will be examined below.
As to the counter-claim, the Court also recalls that it decided by an Order made on
10 March 1998 to admit the counter-claim, and indicated in that Order that the facts alleged and
relied on by the United States “are capable of falling within the scope of Article X, paragraph 1, of
the 1955 Treaty as interpreted by the Court”, and accordingly that “the Court has jurisdiction to
entertain the United States counter-claim in so far as the facts alleged may have prejudiced the
freedoms guaranteed by Article X, paragraph 1” (I.C.J. Reports 1998, p. 204, para. 36). In this
respect also questions have been raised between the Parties as to the significance and scope of that
ruling on jurisdiction, and these will be examined below.

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

23. Before proceeding further, it will be convenient to set out the factual background to the
case, as it emerges from the pleadings of both Parties; the broad lines of this background are not
disputed, being a matter of historical record. The actions giving rise to both the claim and the
counter-claim occurred in the context of the general events that took place in the Persian Gulf

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between 1980 and 1988, in particular the armed conflict that opposed Iran and Iraq. That conflict
began on 22 September 1980, when Iraqi forces advanced into the western areas of Iranian
territory, and continued until the belligerent parties accepted a ceasefire in the summer of 1988,
pursuant to United Nations Security Council resolution 598 (1987) of 20 July 1987. During the
war, combat occurred in the territories of both States, but the conflict also spread to the Persian
Gulf . which is an international commercial route and line of communication of major
importance . and affected commerce and navigation in the region. From the very beginning of
the conflict, on 22 September 1980, Iran established a defence exclusion zone around its coasts;
shortly after, in early October 1980, Iraq declared a “prohibited war zone” and later established a
“naval total exclusive zone” in the northern area of the Persian Gulf. In 1984, Iraq commenced
attacks against ships in the Persian Gulf, notably tankers carrying Iranian oil. These were the first
incidents of what later became known as the “Tanker War”: in the period between 1984 and 1988,
a number of commercial vessels and warships of various nationalities, including neutral vessels,
were attacked by aircraft, helicopters, missiles or warships, or struck mines in the waters of the
Persian Gulf. Naval forces of both belligerent parties were operating in the region, but Iran has
denied responsibility for any actions other than incidents involving vessels refusing a proper
request for stop and search. The United States attributes responsibility for certain incidents to Iran,
whereas Iran suggests that Iraq was responsible for them.

24. A number of States took measures at the time aimed at ensuring the security of their
vessels navigating in the Persian Gulf. In late 1986 and early 1987, the Government of Kuwait
expressed its preoccupation at Iran’s alleged targeting of its merchant vessels navigating in the
Persian Gulf. It therefore requested the United States, the United Kingdom and the Soviet Union to
“reflag” some of these vessels to ensure their protection. Following this request, the Kuwaiti Oil
Tanker Company was able to charter a number of Soviet vessels, and to flag four ships under
United Kingdom registry and 11 ships under United States registry. In addition, the Government of
the United States agreed to provide all United States-flagged vessels with a naval escort when
transiting the Persian Gulf, in order to deter further attacks; these escort missions were initiated in
July 1987, under the designation “Operation Earnest Will”. Other foreign Powers, including
Belgium, France, Italy, the Netherlands and the United Kingdom, took parallel action, sending
warships to the region to protect international shipping. Despite these efforts, a number of ships,
including reflagged Kuwaiti vessels, merchant tankers carrying Kuwaiti oil and warships
participating in “Operation Earnest Will”, suffered attacks or struck mines in the Persian Gulf
between 1987 and the end of the conflict.
25. Two specific attacks on shipping are of particular relevance in this case. On
16 October 1987, the Kuwaiti tanker Sea Isle City, reflagged to the United States, was hit by a
missile near Kuwait harbour. The United States attributed this attack to Iran, and three days later,
on 19 October 1987, it attacked Iranian offshore oil production installations, claiming to be acting
in self-defence. United States naval forces launched an attack against the Reshadat [“Rostam”] and
Resalat [“Rakhsh”] complexes; the R-7 and R-4 platforms belonging to the Reshadat complex

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were destroyed in the attack. On 14 April 1988, the warship USS Samuel B. Roberts struck a mine
in international waters near Bahrain while returning from an escort mission; four days later the
United States, again asserting the right of self-defence, employed its naval forces to attack and
destroy simultaneously the Nasr [“Sirri”] and Salman [“Sassan”] complexes.

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

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

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28. Iran responds that the concept of “clean hands” underlying these arguments of the United
States, “while reflecting and incorporating fundamental principles of law inspired by good faith, is
not an autonomous legal institution”. It contends that the concept of “clean hands” requires the
operation of other institutions or legal rules for its implementation. Iran argues that the “plaintiff’s
own wrongful conduct” as a ground for inadmissibility of a claim relates to claims arising in the
context of diplomatic protection and concerns only a foreign individual’s “clean hands”, but that
such a principle is irrelevant in direct State-to-State claims. According to Iran, as far as
State-to-State claims are concerned, such principle may have legal significance only at the merits
stage, and only at the stage of quantification of damages, but does not deprive a State of locus
standi in judicio.
29. The Court notes that these issues were first raised by the United States in its
Counter-Memorial, after the Judgment of the Court of 12 December 1996 on the preliminary
objection of the United States to jurisdiction. In that pleading those issues were dealt with at the
end, after the United States had set out its arguments on the merits, and not by way of a preliminary
issue. In subsequent pleadings and in oral argument it has presented them as having rather a
preliminary character, but it has nevertheless not gone so far as to suggest that they are issues of
admissibility, appropriate to be enquired into before any examination of the merits. Objections to
admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the
facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the
Court should not proceed to an examination of the merits. That is not the case here. The United
States does not ask the Court to find Iran’s claim inadmissible; it asks the Court to dismiss that
claim. It does not argue that the Court should be debarred from examining the merits of the Iranian
claim on the grounds of Iran’s conduct; rather it argues that Iran’s conduct is such that it
“precludes it from any right to the relief it seeks from this Court”, or that it “should not be
permitted to recover on its claim”. The United States invites the Court to make a finding “that the
United States measures against the platforms were the consequence of Iran’s own unlawful uses of
force” and submits that the “appropriate legal consequences should be attached to that finding”.
The Court notes that in order to make that finding it would have to examine Iranian and United
States actions in the Persian Gulf during the relevant period . which it has also to do in order to
rule on the Iranian claim and the United States counter-claim.
30. At this stage of its judgment, therefore, the Court does not need to deal with the request
of the United States to dismiss Iran’s claim and refuse the relief that it seeks on the basis of the
conduct attributed to Iran. The Court will now proceed to the consideration of the claims made by
Iran and the defences put forward by the United States.
*

* *

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31. As noted above (paragraph 21), the dispute in the present case has been brought before
the Court on the jurisdictional basis of Article XXI, paragraph 2, of the 1955 Treaty, which
provides that
“Any dispute between the High Contracting Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the High Contracting Parties
agree to settlement by some other pacific means.”

By its Judgment of 12 December 1996, the Court found that it had jurisdiction, on the basis of this
Article, “to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1,
of that Treaty” (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)), which provides, as noted above
(paragraph 22), that “Between the territories of the two High Contracting Parties there shall be
freedom of commerce and navigation.” In the reasoning of that Judgment, the Court indicated that
another Article of the Treaty relied on by Iran, Article IV (which relates to reciprocal treatment of
nationals and companies of each party), could not “form the basis of the Court’s jurisdiction” (ibid.,

p. 816, para. 36). It found further that Article I of the Treaty, which provides that “There shall be
firm and enduring peace and sincere friendship between the United States of America and Iran”,
while being “such as to throw light on the interpretation of the other Treaty provisions” and “thus
not without legal significance for such an interpretation, . . . cannot, taken in isolation, be a basis
for the jurisdiction of the Court” (ibid., p. 815, para. 31). The task of the Court is thus to ascertain
whether there has been a breach by the United States of the provisions of Article X, paragraph 1;
other provisions of the Treaty are only relevant in so far as they may affect the interpretation or
application of that text.
32. In that respect, the Court notes that the United States has relied on Article XX,
paragraph 1 (d), of the Treaty as determinative of the question of the existence of a breach of its
obligations under Article X. That paragraph provides that
“The present Treaty shall not preclude the application of measures:

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) necessary to fulfil the obligations of a High Contracting Party for the
maintenance or restoration of international peace and security, or necessary to
protect its essential security interests.”
It is the contention of the United States that the actions complained of by Iran were measures
necessary to protect the essential security interests of the United States, and that accordingly, if
those actions would otherwise have been breaches of Article X, paragraph 1, of the Treaty, which
the United States denies, the effect of Article XX, paragraph 1 (d), is that they are justified under
the terms of the Treaty itself, and thus do not constitute breaches of it.

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33. In its Judgment on the United States preliminary objection of 12 December 1996, the
Court ruled that Article XX, paragraph 1 (d), does not afford an objection to admissibility, but “is
confined to affording the Parties a possible defence on the merits” (I.C.J. Reports 1996 (II), p. 811,
para. 20). In accordance with Article XXI, paragraph 2, of the Treaty, it is now for the Court to
interpret and apply that sub-paragraph, inasmuch as such a defence is asserted by the United States.
34. As was noted in that Judgment, the Court has had occasion, in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), to examine a provision in another treaty concluded by the United States, of which the
text is substantially identical to that of Article XX, paragraph 1 (d). This was Article XXI,
paragraph 1 (d), of the 1956 Treaty of Friendship, Commerce and Navigation between the United
States and Nicaragua. In its decision in that case, the Court observed that since that provision
“contains a power for each of the parties to derogate from the other provisions of the
Treaty, the possibility of invoking the clauses of that Article must be considered once
it is apparent that certain forms of conduct by the United States would otherwise be in
conflict with the relevant provisions of the Treaty” (I.C.J. Reports 1986, p. 117,
para. 225).

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

35. To uphold the claim of Iran, the Court must be satisfied both that the actions of the
United States, complained of by Iran, infringed the freedom of commerce between the territories of
the Parties guaranteed by Article X, paragraph 1, and that such actions were not justified to protect
the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d).
The question however arises in what order the Court should examine these questions of
interpretation and application of the Treaty. In the case concerning Military and Paramilitary
Activities in and against Nicaragua, the Court first examined the question whether the United
States conduct constituted a prima facie breach of other provisions of the Treaty; it concluded that
the United States had “committed acts which are in contradiction with the terms of the Treaty”, but
added that this was “subject to the question whether the exceptions in Article XXI” of the 1956
Treaty, concerning inter alia protection of the essential security interests of a party, “may be
invoked to justify the acts complained of” (ibid., p. 140, para. 280). The Court thus dealt first with
the substantive provisions of the 1956 Treaty, breaches of which had been alleged, before turning
to Article XXI of the Treaty; in effect, it analysed that Article as providing for “exceptions” to the
substantive obligations provided for in other Articles of the Treaty (see ibid., p. 116, para. 222).
36. In the present case the United States has argued that Article XX, paragraph 1 (d), of the
1955 Treaty is not a limitation on Article X, paragraph 1, nor yet a derogation from it; and that it is
a substantive provision that determines, defines and delimits the obligations of the parties,

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simultaneously with and on the same level as Article X, paragraph 1. The United States therefore
contends that there is no compelling reason to examine the question of breach of Article X,
paragraph 1, before turning to Article XX, paragraph 1 (d); the Court can, it suggests, dismiss the
Iranian claim either on the ground that the actions of the United States did not involve a breach of
Article X, paragraph 1, or on the ground that those actions were measures necessary to protect the
essential security interests of the United States, and therefore justified under Article XX,
paragraph 1 (d). On this basis, the United States suggests, the order in which the issues are treated
is a matter for the discretion of the Court.

37. The Court does not consider that the order in which the Articles of the 1956 Treaty were
dealt with in the case concerning Military and Paramilitary Activities in and against Nicaragua
was dictated by the economy of the Treaty; it was rather an instance of the Court’s “freedom to
select the ground upon which it will base its judgment” (Application of the Convention of 1902
Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62). In the present case,
it appears to the Court that there are particular considerations militating in favour of an
examination of the application of Article XX, paragraph 1 (d), before turning to Article X,
paragraph 1. It is clear that the original dispute between the Parties related to the legality of the
actions of the United States, in the light of international law on the use of force. At the time of
those actions, neither Party made any mention of the 1955 Treaty. The contention of the United
States at the time was that its attacks on the oil platforms were justified as acts of self-defence, in
response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action
to the Security Council under Article 51 of the United Nations Charter. Before the Court, it has
continued to maintain that it was justified in acting as it did in exercise of the right of self-defence;
it contends that, even if the Court were to find that its actions do not fall within the scope of
Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and
appropriate actions in self-defence.
38. Furthermore, as the United States itself recognizes in its Rejoinder, “The self-defense
issues presented in this case raise matters of the highest importance to all members of the
international community”, and both Parties are agreed as to the importance of the implications of
the case in the field of the use of force, even though they draw opposite conclusions from this
observation. The Court therefore considers that, to the extent that its jurisdiction under
Article XXI, paragraph 2, of the 1955 Treaty authorizes it to examine and rule on such issues, it
should do so.
39. The question of the relationship between self-defence and Article XX, paragraph 1 (d), of
the Treaty has been disputed between the Parties, in particular as regards the jurisdiction of the
Court. The United States emphasizes that the Court’s jurisdiction in this case is limited, pursuant
to Article XXI, paragraph 2, of the 1955 Treaty, to the interpretation and application of that Treaty,
and does not extend directly to the determination of the legality of any action of either Party under
general international law. It has contended that

- 23

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

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

40. In the view of the Court, the matter is one of interpretation of the Treaty, and in
particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty,
when providing therein that it should “not preclude the application of measures . . . necessary to
protect [the] essential security interests” of either party, intended that such should be the effect of
the Treaty even where those measures involved a use of armed force; and if so, whether they
contemplated, or assumed, a limitation that such use would have to comply with the conditions laid
down by international law. In the case concerning Military and Paramilitary Activities in a, nd
against Nicaragua the Court took the view that “action taken in self-defence, individual or
collective, might be considered as part of the wider category of measures qualified in
Article XXI” . the text in that case corresponding to Article XX of the 1955 Treaty . “as
‘necessary to protect’ the ‘essential security interests’ of a party” (I.C.J. Reports 1986, p. 117,
para. 224); and it cited an extract from the proceedings of the United States Senate Foreign
Relations Committee tending to show that such had been the intentions of the Parties (ibid.). This
approach is consistent with the view that, when Article XX, paragraph 1 (d), is invoked to justify
actions involving the use of armed force, allegedly in self-defence, the interpretation and
application of that Article will necessarily entail an assessment of the conditions of legitimate
self-defence under international law.
41. It should not be overlooked that Article I of the 1955 Treaty, quoted in paragraph 31
above, declares that “There shall be firm and enduring peace and sincere friendship between the
United States of America and Iran.” The Court found in 1996 that this Article “is such as to throw
light on the interpretation of the other Treaty provisions” (I.C.J. Reports 1996 (II), p. 815,
para. 31). It is hardly consistent with Article I to interpret Article XX, paragraph 1 (d), to the effect
that the “measures” there contemplated could include even an unlawful use of force by one party
against the other. Moreover, under the general rules of treaty interpretation, as reflected in the
1969 Vienna Convention on the Law of Treaties, interpretation must take into account “any
relevant rules of international law applicable in the relations between the parties” (Article 31,
paragraph 3 (c)). The Court cannot accept that Article XX, paragraph 1 (d), of the 1955 Treaty was
intended to operate wholly independently of the relevant rules of international law on the use of
force, so as to be capable of being successfully invoked, even in the limited context of a claim for

- 24 -

breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules
of international law relating to this question thus forms an integral part of the task of interpretation
entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.

42. The Court is therefore satisfied that its jurisdiction under Article XXI, paragraph 2, of the
1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX,
paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action
alleged to be justified under that paragraph was or was not an unlawful use of force, by reference to
international law applicable to this question, that is to say, the provisions of the Charter of the
United Nations and customary international law. The Court would however emphasize that its
jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty.
The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the
parties.
*

43. The Court will thus examine first the application of Article XX, paragraph 1 (d), of
the 1955 Treaty, which in the circumstances of this case, as explained above, involves the principle
of the prohibition in international law of the use of force, and the qualification to it constituted by
the right of self-defence. On the basis of that provision, a party to the Treaty may be justified in
taking certain measures which it considers to be “necessary” for the protection of its essential
security interests. As the Court emphasized, in relation to the comparable provision of the 1956
USA/Nicaragua Treaty in the case concerning Military and Paramilitary Activities in and against
Nicaragua, “the measures taken must not merely be such as tend to protect the essential security
interests of the party taking them, but must be ‘necessary’ for that purpose”; and whether a given
measure is “necessary” is “not purely a question for the subjective judgment of the party” (I.C.J.
Reports 1986, p. 141, para. 282), and may thus be assessed by the Court. In the present case, the
question whether the measures taken were “necessary” overlaps with the question of their validity
as acts of self-defence. As the Court observed in its decision of 1986 the criteria of necessity and
proportionality must be observed if a measure is to be qualified as self-defence (see I.C.J. Reports
1986, p. 103, para. 194, and paragraph 74 below).
44. In this connection, the Court notes that it is not disputed between the Parties that neutral
shipping in the Persian Gulf was caused considerable inconvenience and loss, and grave damage,
during the Iran-Iraq war. It notes also that this was to a great extent due to the presence of mines
and minefields laid by both sides. The Court has no jurisdiction to enquire into the question of the
extent to which Iran and Iraq complied with the international legal rules of maritime warfare. It
can however take note of these circumstances, regarded by the United States as relevant to its

- 25 -

decision to take action against Iran which it considered necessary to protect its essential security
interests. Nevertheless, the legality of the action taken by the United States has to be judged by
reference to Article XX, paragraph 1 (d), of the 1955 Treaty, in the light of international law on the
use of force in self-defence.

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

46. The first installation attacked, on 19 October 1987, was the Reshadat complex, which
consisted of three drilling and production platforms . R-3, R-4 and R-7 . linked to a total of
27 oil wells. The crude oil produced by the R-3 platform was transported by submarine pipeline to
the R-4 platform and thence, together with the crude oil produced by R-4, to the R-7 platform that
accommodated both production facilities and living quarters. This latter platform was also
connected by submarine pipeline to another complex, named Resalat, which consisted of three
linked drilling and production platforms, referred to as R-1. All the crude oil produced at the
Reshadat and Resalat complexes, after gas and water separation, was transported by undersea
pipeline from the R-7 platform to Lavan Island. At the time of the United States attacks, these
complexes were not producing oil due to damage inflicted by prior Iraqi attacks in October 1986,
July 1987 and August 1987. Iran has maintained that repair work on the platforms was close to
completion in October 1987. The United States has however challenged this assertion (see below,
paragraphs 65 and 93).
47. On 19 October 1987, four destroyers of the United States Navy, together with naval
support craft and aircraft, approached the Reshadat R-7 platform. Iranian personnel was warned by
the United States forces via radio of the imminent attack and abandoned the facility. The United
States forces then opened fire on the platform; a unit later boarded and searched it, and placed and
detonated explosive charges on the remaining structure. The United States ships then proceeded to
the R-4 platform, which was being evacuated; according to a report of a Pentagon spokesman,
cited in the press and not denied by the United States, the attack on the R-4 platform had not been
included in the original plan, but it was seen as a “target of opportunity”. After having conducted
reconnaissance fire and then having boarded and searched the platform, the United States forces
placed and detonated explosive charges on this second installation. As a result of the attack, the
R-7 platform was almost completely destroyed and the R-4 platform was severely damaged. While
the attack was made solely on the Reshadat complex, it affected also the operation of the Resalat
complex. Iran states that production from the Reshadat and Resalat complexes was interrupted for
several years.

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48. The nature of this attack, and its alleged justification, was presented by the United States
to the United Nations Security Council in the following terms (letter from the United States
Permanent Representative of 19 October 1987, S/19219):
“In accordance with Article 51 of the Charter of the United Nations, I wish, on
behalf of my Government, to report that United States forces have exercised the
inherent right of self-defence under international law by taking defensive action in
response to attacks by the Islamic Republic of Iran against United States vessels in the
Persian Gulf.

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

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

49. In its Counter-Memorial, the United States linked its previous invocation of the right of
self-defence with the application of Article XX, paragraph 1 (d), of the 1955 Treaty. It argued that
Iranian actions during the relevant period constituted a threat to essential security interests of the
United States, inasmuch as the flow of maritime commerce in the Persian Gulf was threatened by
Iran’s repeated attacks on neutral vessels; that the lives of United States nationals were put at risk;
that United States naval vessels were seriously impeded in their security duties; and that the United
States Government and United States nationals suffered severe financial losses. According to the
United States, it was clear that diplomatic measures were not a viable means of deterring Iran from
its attacks: “Accordingly, armed action in self-defense was the only option left to the United States
to prevent additional Iranian attacks”.

- 27 -

50. The Court will thus first concentrate on the facts tending to show the validity or
otherwise of the claim to exercise the right of self-defence. In its communication to the Security
Council, cited above, the United States based this claim on the existence of
“a series of unlawful armed attacks by Iranian forces against the United States,

including laying mines in international waters for the purpose of sinking or damaging

United States flag ships, and firing on United States aircraft without provocation”;

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

51. Despite having thus referred to attacks on vessels and aircraft of other nationalities, the
United States has not claimed to have been exercising collective self-defence on behalf of the
neutral States engaged in shipping in the Persian Gulf; this would have required the existence of a
request made to the United States “by the State which regards itself as the victim of an armed
attack” (I.C.J. Reports 1986, p. 105, para. 199). Therefore, in order to establish that it was legally
justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the
United States has to show that attacks had been made upon it for which Iran was responsible; and
that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of
that expression in Article 51 of the United Nations Charter, and as understood in customary law on
the use of force. As the Court observed in the case concerning Military and Paramilitary Activities
in and against Nicaragua, it is necessary to distinguish “the most grave forms of the use of force
(those constituting an armed attack) from other less grave forms” (I.C.J. Reports 1986, p. 101,
para. 191), since “In the case of individual self-defence, the exercise of this right is subject to the
State concerned having been the victim of an armed attack” (ibid., p. 103, para. 195). The United
States must also show that its actions were necessary and proportional to the armed attack made on
it, and that the platforms were a legitimate military target open to attack in the exercise of
self-defence.
52. Since it was the missile attack on the Sea Isle City that figured most prominently in the
United States contentions, the Court will first examine in detail the evidence relating to that
incident. The Sea Isle City was a Kuwaiti tanker reflagged to the United States; on
16 October 1987 it had just ended a voyage under “Operation Earnest Will” (see paragraph 24
above), when it was hit by a missile near Kuwait’s Al-Ahmadi Sea Island (or Mina al-Ahmadi)
terminal. This incident, which caused damage to the ship and injury to six crew members, was
claimed by the United States to be the seventh involving Iranian anti-ship cruise missiles in the area
in the course of 1987. The United States asserts that the missile that struck the Sea Isle City was

- 28 -

launched by Iran from a facility located in the Fao area. It recalls that in February 1986 Iran had
taken control of a large part of the Fao peninsula and had captured three formerly Iraqi missile sites
in the area, which it held at the time of the attack. It also maintains that there was an additional
active cruise missile staging facility on Iranian territory near the Fao peninsula.

53. The evidence produced by the United States includes images, taken by satellite or aerial
reconnaissance aircraft, of the Fao area and of the four alleged missile sites under Iranian control at
the time of the attack, as well as a complementary expert report describing and examining this
imagery. Although the United States has indicated that it was unable to recover and examine
fragments of the specific missile that hit the Sea Isle City, it has produced, in the present
proceedings, a statement by an independent expert, dated 27 March 1997, based on a previous
examination by United States military analysts of fragments retrieved from other similar incidents
in early 1987. That evidence shows, in the United States submission, that the specific missile was a
land-launched HY-2 cruise missile of Chinese manufacture (also known as the “Silkworm”
missile). The United States has also produced the testimony, dated 21 May 1997, of two Kuwaiti
officers, to the effect that military personnel stationed on Kuwaiti islands had witnessed, in
January, September and October 1987, the launching of six missiles from Iranian-controlled
territory in the Fao area; in addition, one of these officers asserts that he personally observed the
path of the missile that struck the Sea Isle City on 16 October 1987.
54. Iran suggests that no credible evidence has been produced that there were operational
Iranian missile sites in the Fao area; it acknowledges that it had captured three Iraqi missile sites in
1986, but these “were heavily damaged during the fighting with Iraq” and “were inoperative
throughout the period that Iranian forces held Fao”. It therefore denies that the missile that struck
the Sea Isle City was launched from those sites, or from an additional Iranian Silkworm missile site
that the United States claims to have identified in the area, the existence of which Iran denies. Iran
observes that the satellite images produced by the United States are not very clear, and appeals to
its own experts’ opinion to prove that the installations shown therein “bear no resemblance to a
normal Silkworm missile site”. Moreover, according to Iran, other United States evidence would
show that, at the time of the attack, Iran had operative missile sites only in the Strait of Hormuz.
Iran maintains that the statement of Kuwaiti officers produced by the United States is unconvincing
since it is largely based on hearsay and is in part inconsistent.
55. Iran also suggests the alternative theory that the missile that hit the Sea Isle City was
fired by Iraq, which, it contends, had both the appropriate missile capabilities, and an interest in
internationalizing the conflict with Iran. According to Iran, the missile could have been launched
by Iraq either from an aircraft, from a naval vessel or from an “operational missile site located at a
position on Fao just to the west of areas occupied by Iran”. Iran alleges that, while the maximum
range of the standard HY-2 (Silkworm) missile is 95 km, Iraq was in possession of modified
versions of that missile that could cover ranges up to 150 or even 200 km. Moreover, according to

- 29 -

an expert report produced by Iran, a missile of this kind does not necessarily travel in a straight line
and could have been heading in the direction observed by the witnesses invoked by the United
States even if it had not been launched from Iranian-held territory in the Fao area.

56. The United States claims that its satellite imagery shows that there was no Iraqi missile
launching facility in the Fao area at the time. It also affirms, on the basis of an independent
expert’s opinion, that HY-2 missiles are not equipped with a system capable of guiding them along
a circuitous path, as contended by Iran. Finally, the United States rejects the Iranian theory that the
missile was launched from air or sea, both because the fragments of missiles launched against
Kuwaiti territory at the same period indicated a land-launched missile, and because United States
AWACS radar planes did not detect any Iraqi military aircraft aloft in the northern Persian Gulf at
the time of the attacks.
57. For present purposes, the Court has simply to determine whether the United States has
demonstrated that it was the victim of an “armed attack” by Iran such as to justify it using armed
force in self-defence; and the burden of proof of the facts showing the existence of such an attack
rests on the United States. The Court does not have to attribute responsibility for firing the missile
that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the
end of the day the evidence available is insufficient to establish that the missile was fired by Iran,
then the necessary burden of proof has not been discharged by the United States.
58. As noted above, the United States claims that the missile that struck the Sea Isle City was
a ground-launched HY-2 anti-ship missile of the type known as the “Silkworm”, but it has not been
able to produce physical evidence of this, for example in the form of recovered fragments of the
missile. The Court will however examine the other evidence on the hypothesis that the missile was
of this type. The United States contends that the missile was fired from Iranian-held territory in the
Fao area, and it has offered satellite pictures and expert evidence to show that there was, at the
time, Iranian missile-firing equipment present there. Even with the assistance of the expert reports
offered by both Parties, the Court does not however find the satellite images sufficiently clear to
establish this point. The evidence that the particular missile came from the Fao direction is the
testimony, mentioned above, of a Kuwaiti military officer, who claims to have observed the flight
of the missile overhead, and thus to be able to identify the approximate bearing on which it was
travelling. However, this testimony was given ten years after the reported events; and the officer
does not state that he observed the launch of the missile (and the alleged firing point was too
remote for this to have been possible), nor that he saw the missile strike the Sea Isle City, but
merely that he saw a missile passing “overhead”, and that that vessel was struck by a missile
“minutes later”. In sum, the witness evidence cannot be relied upon. Furthermore, the Court notes
that there is a discrepancy between the English and Arabic texts of the statement produced before
the Court, both of which were signed by the witness; the Arabic version lacks any indication of the
bearing on which the observed missile was travelling.

- 30 -

59. There is a conflict of evidence between the Parties as to the characteristics of the
Silkworm missile, in particular its maximum range, and whether or not when fired it always
follows a straight-line course. According to the United States, the maximum range of the missile is
of the order of 105 km, and this type of missile always follows a straight course until it approaches
its objective, when its on-board guidance equipment causes it to lock on to a target which may be
up to 12 degrees on either side of its course. Iran however contends that the missile may also be set
to follow either a curved or dog-leg path, and that its maximum range is less, 95 km at the most.
The Court does not consider that it is necessary for it to decide between the conflicting expert
testimony. It appears that at the time different models of the missile existed, with differing
programming characteristics and maximum ranges. There is however no direct evidence at all of
the type of missile that struck the Sea Isle City; the evidence as to the nature of other missiles fired
at Kuwaiti territory at this period is suggestive, but no more. In considering whether the United
States has discharged the burden of proof that Iranian forces fired the missile that struck the Sea
Isle City, the Court must take note of this deficiency in the evidence available.
60. In connection with its contention that the Sea Isle City was the victim of an attack by
Iran, the United States has referred to an announcement by President Ali Khameini of Iran some
three months earlier, indicating that Iran would attack the United States if it did not “leave the
region”. This however is evidently not sufficient to justify the conclusion that any subsequent
attack on the United States in the Persian Gulf was indeed the work of Iran. The United States also
observes that, at the time, Iran was blamed for the attack by “Lloyd’s Maritime Information
Service, the General Council of British Shipping, Jane’s Intelligence Review and other
authoritative public sources”. These “public sources” are by definition secondary evidence; and
the Court has no indication of what was the original source, or sources, or evidence on which the
public sources relied. In this respect the Court would recall the caveat it included in its Judgment
in the case concerning Military and Paramilitary Activities in and against Nicaragua, that
“Widespread reports of a fact may prove on closer examination to derive from a single source, and
such reports, however numerous, will in such case have no greater value as evidence than the
original source.” (I.C.J. Reports 1986, p. 41, para. 63.)
61. In short, the Court has examined with great care the evidence and arguments presented
on each side, and finds that the evidence indicative of Iranian responsibility for the attack on the
Sea Isle City is not sufficient to support the contentions of the United States. The conclusion to
which the Court has come on this aspect of the case is thus that the burden of proof of the existence
of an armed attack by Iran on the United States, in the form of the missile attack on the Sea Isle
City, has not been discharged.
62. In its notification to the Security Council, and before the Court, the United States has
however not relied solely on the Sea Isle City incident as constituting the “armed attack” to which
the United States claimed to be responding. It asserted that that incident was “the latest in a series
of such missile attacks against United States flag and other non-belligerent vessels in Kuwaiti
waters in pursuit of peaceful commerce” and that

- 31

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

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

63. The United States relies on the following incidents involving United States flagged, or
United States owned, vessels and aircraft, in the period up to 19 October 1987, and attributes them
to Iranian action: the mining of the United States-flagged Bridgeton on 24 July 1987; the mining
of the United States-owned Texaco Caribbean on 10 August 1987; and firing on United States
Navy helicopters by Iranian gunboats, and from the Reshadat oil platform, on 8 October 1987. The
United States also claims to have detected and boarded an Iranian vessel, the Iran Ajr, in the act of
laying mines in international waters some 50 nautical miles north-east of Bahrain, in the vicinity of
the entrance to Bahrain’s deep-water shipping channel. Iran has denied any responsibility for the
mining of the Bridgeton and the Texaco Caribbean; as regards the Iran Ajr, Iran has admitted that
the vessel was carrying mines, but denies that they were being laid at the time it was boarded, and
claims that its only mission was to transport them by a secure route to a quite different area.
64. On the hypothesis that all the incidents complained of are to be attributed to Iran, and
thus setting aside the question, examined above, of attribution to Iran of the specific attack on the
Sea Isle City, the question is whether that attack, either in itself or in combination with the rest of
the “series of . . . attacks” cited by the United States can be categorized as an “armed attack” on the
United States justifying self-defence. The Court notes first that the Sea Isle City was in Kuwaiti
waters at the time of the attack on it, and that a Silkworm missile fired from (it is alleged) more
than 100 km away could not have been aimed at the specific vessel, but simply programmed to hit
some target in Kuwaiti waters. Secondly, the Texaco Caribbean, whatever its ownership, was not
flying a United States flag, so that an attack on the vessel is not in itself to be equated with an
attack on that State. As regards the alleged firing on United States helicopters from Iranian
gunboats and from the Reshadat oil platform, no persuasive evidence has been supplied to support
this allegation. There is no evidence that the minelaying alleged to have been carried out by the
Iran Ajr, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and
similarly it has not been established that the mine struck by the Bridgeton was laid with the specific
intention of harming that ship, or other United States vessels. Even taken cumulatively, and
reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the

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Court to constitute an armed attack on the United States, of the kind that the Court, in the case
concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a “most
grave” form of the use of force (see paragraph 51 above).

*

65. The second occasion on which Iranian oil installations were attacked was on
18 April 1988, with the action against the Salman and Nasr complexes. The Salman offshore oil
complex consisted of seven interconnected platforms, including one drilling and two production
platforms. Oil extracted from 21 wells was transported by submarine pipeline to this complex, and
then on to Lavan Island after initial water and gas separation. This complex had been attacked by
Iraq in October and November 1986, and was still undergoing repairs in April 1988; by that time,
according to Iran, the works were “virtually completed”, but the United States questions this. The
Nasr complex comprised one central platform, one flaring point, and six oil producing platforms
grouped around the central platform, served by 44 wells in the Sirri field and four wells in the
Nosrat field. Crude oil from all these wells was transported by submarine pipeline to the central
platform, and from there to Sirri Island. This complex was functioning normally in April 1988.
66. United States naval forces attacked the Salman and Nasr complexes on 18 April 1988.
Two destroyers and a supply ship were involved in the attack on the Salman complex: shortly
before 8 a.m., local time, the United States forces warned the personnel on the platforms that the
attack was due to begin; some of them began to evacuate the installation, while others opened fire.
A few minutes later, shelling on the complex commenced from United States ships, warplanes and
helicopters. United States forces then boarded some of the platforms (but not that containing the
control centre), and placed and detonated explosives. Iran states that the attack caused severe
damage to the production facilities of the platforms, and that the activities of the Salman complex
were totally interrupted for four years, its regular production being resumed only in
September 1992, and reaching a normal level in 1993.
The central platform of the Nasr complex was attacked at around 8.15 a.m. by three United
States warships and a number of helicopters. After having been warned of the imminent military
action, Iranian personnel evacuated the platform. The United States forces bombarded the
installation and almost completely destroyed it; the platform was not boarded, since it was
considered unsafe due to secondary explosions and fire. According to Iranian accounts, activities
in the whole Nasr complex (including oil production and water injection) were interrupted as a
consequence of the attack and did not resume until nearly four years later.

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

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

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

Through diplomatic channels, the United States has informed the Government
of the Islamic Republic of Iran on four separate occasions, most recently
19 October 1987, that the United States would not accept Iran’s minelaying in
international waters or in the waters of neutral States. In October, my Government
indicated that the United States did not seek a military confrontation with Iran, but that
it would take appropriate defensive measures against such hostile actions.

Starting at approximately 0100 Eastern Daylight Time 18 April U.S. forces

attacked military targets in the Persian Gulf which have been used for attacks against

non-belligerent shipping in international waterways of the Gulf.

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

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

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69. The USS Samuel B. Roberts was a warship returning to Bahrain on 14 April 1988, after
escorting a convoy of United States-flagged merchant ships in the context of “Operation Earnest
Will”, when it hit a mine near Shah Allum Shoal in the central Persian Gulf. The United States
reports that, in the days following the attack, Belgian and Dutch mine-clearing forces and its own
navy discovered several mines bearing Iranian serial numbers in the vicinity and it concludes
therefore that the mine struck by the USS Samuel B. Roberts was laid by Iran. It also adduces other
discoveries of Iranian mining activities at the time (including the boarding by United States forces
of the Iranian vessel Iran Ajr, said to have been caught in the act of laying mines, referred to in
paragraph 63 above), contemporary statements by Iranian military leaders and conclusions of the
international shipping community (see paragraph 60 above), all allegedly demonstrating that Iran
made a general practice of using mines to attack neutral shipping.
70. Iran denies that it had systematic recourse to minelaying in the Persian Gulf and suggests
that evidence produced by the United States is unpersuasive. Furthermore, it contends that the
United States has submitted no independent evidence that the laying of the mine that hit the
USS Samuel B. Roberts is attributable to Iran. Iran also suggests that the mine may have been laid
by Iraq, a hypothesis that the United States rejects.
71. As in the case of the attack on the Sea Isle City, the first question is whether the United
States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine
laid by Iran. The Court notes that mines were being laid at the time by both belligerents in the
Iran-Iraq war, so that evidence of other minelaying operations by Iran is not conclusive as to
responsibility of Iran for this particular mine. In its communication to the Security Council in
connection with the attack of 18 April 1988, the United States alleged that “The mines were laid in
shipping lanes known by Iran to be used by U.S. vessels, and intended by them to damage or sink
such vessels” (paragraph 67 above). Iran has claimed that it laid mines only for defensive purposes
in the Khor Abdullah Channel, but the United States has submitted evidence suggesting that Iran’s
mining operations were more extensive. The main evidence that the mine struck by the
USS Samuel B. Roberts was laid by Iran was the discovery of moored mines in the same area,
bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel
Iran Ajr (see paragraph 63 above). This evidence is highly suggestive, but not conclusive.
72. The Court notes further that, as on the occasion of the earlier attack on oil platforms, the
United States in its communication to the Security Council claimed to have been exercising the
right of self-defence in response to the “attack” on the USS Samuel B. Roberts, linking it also with
“a series of offensive attacks and provocations Iranian naval forces have taken against neutral
shipping in the international waters of the Persian Gulf” (paragraph 67 above). Before the Court, it
has contended, as in the case of the missile attack on the Sea Isle City, that the mining was itself an

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armed attack giving rise to the right of self-defence and that the alleged pattern of Iranian use of
force “added to the gravity of the specific attacks, reinforced the necessity of action in self-defense,
and helped to shape the appropriate response” (see paragraph 62 above). No attacks on United
States-flagged vessels (as distinct from United States-owned vessels), additional to those cited as
justification for the earlier attacks on the Reshadat platforms, have been brought to the Court’s
attention, other than the mining of the USS Samuel B. Roberts itself. The question is therefore
whether that incident sufficed in itself to justify action in self-defence, as amounting to an “armed
attack”. The Court does not exclude the possibility that the mining of a single military vessel might
be sufficient to bring into play the “inherent right of self-defence”; but in view of all the
circumstances, including the inconclusiveness of the evidence of Iran’s responsibility for the
mining of the USS Samuel B. Roberts, the Court is unable to hold that the attacks on the Salman
and Nasr platforms have been shown to have been justifiably made in response to an “armed
attack” on the United States by Iran, in the form of the mining of the USS Samuel B. Roberts.

*

73. As noted above (paragraph 43), in the present case a question of whether certain action is
“necessary” arises both as an element of international law relating to self-defence and on the basis
of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted, whereby the
Treaty does “not preclude . . . measures . . . necessary to protect [the] essential security interests” of
either party. In this latter respect, the United States claims that it considered in good faith that the
attacks on the platforms were necessary to protect its essential security interests, and suggests that
“A measure of discretion should be afforded to a party’s good faith application of measures to
protect its essential security interests”. Iran was prepared to recognize some of the interests
referred to by the United States . the safety of United States vessels and crew, and the
uninterrupted flow of maritime commerce in the Persian Gulf . as being reasonable security
interests of the United States, but denied that the United States actions against the platforms could
be regarded as “necessary” to protect those interests. The Court does not however have to decide
whether the United States interpretation of Article XX, paragraph 1 (d), on this point is correct,
since the requirement of international law that measures taken avowedly in self-defence must have
been necessary for that purpose is strict and objective, leaving no room for any “measure of
discretion”. The Court will therefore turn to the criteria of necessity and proportionality in the
context of international law on self-defence.
74. In its decision in the case concerning Military and Paramilitary Activities in and against
Nicaragua, the Court endorsed the shared view of the parties to that case that in customary law
“whether the response to the [armed] attack is lawful depends on observance of the criteria of the
necessity and the proportionality of the measures taken in self-defence” (I.C.J. Reports 1986,
p. 103, para. 194). One aspect of these criteria is the nature of the target of the force used

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avowedly in self-defence. In its communications to the Security Council, in particular in that of
19 October 1987 (paragraph 46 above), the United States indicated the grounds on which it
regarded the Iranian platforms as legitimate targets for an armed action in self-defence. In the
present proceedings, the United States has continued to maintain that they were such, and has
presented evidence directed to showing that the platforms collected and reported intelligence
concerning passing vessels, acted as a military communication link co-ordinating Iranian naval
forces and served as actual staging bases to launch helicopter and small boat attacks on neutral
commercial shipping. The United States has referred to documents and materials found by its
forces aboard the vessel Iran Ajr (see paragraph 63 above), allegedly establishing that the Reshadat
platforms served as military communication facilities. It has also affirmed that the international
shipping community at the time was aware of the military use of the platforms, as confirmed by the
costly steps commercial vessels took to avoid them, and by various witness reports describing
Iranian attacks. The United States has also submitted expert analysis of the conditions and
circumstances surrounding these attacks, examining their pattern and location in the light of the
equipment at Iran’s disposal. Finally, the United States has produced a number of documents,
found on the Reshadat complex when it was attacked, allegedly corroborating the platforms’
military function. In particular, it contends that these documents prove that the Reshadat platforms
had monitored the movements of the Sea Isle City on 8 August 1987. On the other hand, the forces
that attacked the Salman and Nasr complexes were not able to board the platforms containing the
control centres, and did not therefore seize any material (if indeed such existed) tending to show
the use of those complexes for military purposes.

75. Iran recognizes the presence of limited military personnel and equipment on the
Reshadat platforms, but insists that their purpose was exclusively defensive and justified by
previous Iraqi attacks on its oil production facilities. Iran further challenges the evidence adduced
by the United States in this regard. It alleges that documents found aboard the Iran Ajr and the
Reshadat platforms are read out of their proper context, incorrectly translated and actually
consistent with the platforms’ purely defensive role; and that military expert analysis relied on by
the United States is hypothetical and contradictory. Iran asserts further that reports and testimony
referred to by the United States are mostly non-specific about the use of the platforms as staging
bases to launch attacks, and that the equipment at its disposal could be used from mainland and
offshore islands, without any need to have recourse to the platforms.
76. The Court is not sufficiently convinced that the evidence available supports the
contentions of the United States as to the significance of the military presence and activity on the
Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman and
Nasr complexes. However, even accepting those contentions, for the purposes of discussion, the
Court is unable to hold that the attacks made on the platforms could have been justified as acts of
self-defence. The conditions for the exercise of the right of self-defence are well settled: as the

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Court observed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, “The
submission of the exercise of the right of self-defence to the conditions of necessity and
proportionality is a rule of customary international law” (I.C.J. Reports 1996 (I), p. 245, para. 41);
and in the case concerning Military and Paramilitary Activities in and against Nicaragua, the
Court referred to a specific rule “whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it” as “a rule well established in
customary international law” (I.C.J. Reports 1986, p. 94, para. 176). In the case both of the attack
on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not satisfied that the
attacks on the platforms were necessary to respond to these incidents. In this connection, the Court
notes that there is no evidence that the United States complained to Iran of the military activities of
the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral
shipping, which does not suggest that the targeting of the platforms was seen as a necessary act.
The Court would also observe that in the case of the attack of 19 October 1987, the United States
forces attacked the R-4 platform as a “target of opportunity”, not one previously identified as an
appropriate military target (see paragraph 47 above).

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

78. The Court thus concludes from the foregoing that the actions carried out by United States
forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be justified,
under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the
essential security interests of the United States, since those actions constituted recourse to armed

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force not qualifying, under international law on the question, as acts of self-defence, and thus did
not fall within the category of measures contemplated, upon its correct interpretation, by that
provision of the Treaty.

* *

79. Having satisfied itself that the United States may not rely, in the circumstances of the
case, on the defence to the claim of Iran afforded by Article XX, paragraph 1 (d), of the
1955 Treaty, the Court has now to turn to that claim, made under Article X, paragraph 1, of that
Treaty, which provides that “Between the territories of the two High Contracting Parties there shall
be freedom of commerce and navigation.” In that respect, Iran’s submission is that “in attacking
and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran’s
Application, the United States breached its obligations to Iran under Article X, paragraph 1, of the
Treaty of Amity . . .”. It contends that the United States attacks on the oil platforms were directed
against commercial facilities that were protected by Article X, paragraph 1, that they “impeded the
normal functioning of the oil platforms and that they even resulted in the complete interruption of
the platforms’ activities, . . . thus preventing gravely ab ovo the possibility for Iran to enjoy
freedom of commerce as guaranteed by” that Article.
80. As noted above (paragraph 31), in its Judgment of 12 December 1996 on the preliminary
objection of the United States, the Court had occasion, for the purposes of ascertaining and
defining the scope of its jurisdiction, to interpret a number of provisions of the 1955 Treaty,
including Article X, paragraph 1. It noted that the Applicant had not alleged that any military
action had affected its freedom of navigation, so that the only question to be decided was “whether
the actions of the United States complained of by Iran had the potential to affect ‘freedom of
commerce’” as guaranteed by that provision (I.C.J. Reports 1996 (II), p. 817, para. 38). The Court
also rejected the view, advanced by the United States, that the word “commerce” in Article X,
paragraph 1, is confined to maritime commerce (ibid., para. 43). After examining the contentions
of the Parties as to the meaning of the word, the Court concluded that
“it would be a natural interpretation of the word ‘commerce’ in Article X, paragraph 1,

of the Treaty of 1955 that it includes commercial activities in general . not merely
the immediate act of purchase and sale, but also the ancillary activities integrally
related to commerce” (ibid., p. 819, para. 49).

81. In 1996 the Court was concerned only to resolve the questions of its jurisdiction raised
by the preliminary objection presented by the United States. For that purpose, it was not called
upon to decide whether the actions of the United States did in fact interfere with freedom of
commerce between the territories of the Parties, but only whether, as stated in the Judgment, the
lawfulness of those actions could be evaluated in relation to Article X, paragraph 1 (I.C.J. Reports
1996 (II), p. 820, para. 51). It has been suggested by the United States in its written pleadings that
that Article does not in fact create specific legal obligations relevant to Iran’s claims, but is merely

- 39 -

an “aspirational” provision, but this view, which the United States did not press during the oral
proceedings, does not seem to the Court to be consistent either with the structure of the 1955 Treaty
or with the Court’s 1996 Judgment.

82. In that decision, the Court observed that it did not then have to enter into the question
whether Article X, paragraph 1, “is restricted to commerce ‘between’ the Parties” (I.C.J. Reports
1996 (II), p. 817, para. 44). However it is now common ground between the Parties that that
provision is in terms limited to the protection of freedom of commerce “between the territories of
the two High Contracting Parties”. The Court observes that it is oil exports from Iran to the United
States that are relevant to the case, not such exports in general. The United States has argued that
for the purpose of interpreting Article X, paragraph 1, what must be considered is whether oil from
the specific platforms attacked was, or would have been, exported to the United States. In this
connection it questions whether the platforms could be said to be on the “territory” of Iran,
inasmuch as they are outside Iran’s territorial sea, though upon its continental shelf, and within its
exclusive economic zone. The Court does not however consider tenable an interpretation of the
1955 Treaty that would have differentiated, for the purposes of “freedom of commerce”, between
oil produced on the land territory or the territorial sea of Iran, and oil produced on its continental
shelf, in the exercise of its sovereign rights of exploration and exploitation of the shelf, and parallel
rights over the exclusive economic zone.
83. In the 1996 Judgment, the Court further emphasized that “Article X, paragraph 1, of the
Treaty of 1955 does not strictly speaking protect ‘commerce’ but ‘freedom of commerce’”, and
continued: “Unless such freedom is to be rendered illusory, the possibility must be entertained that
it could actually be impeded as a result of acts entailing the destruction of goods destined to be
exported, or capable of affecting their transport and storage with a view to export” (ibid., p. 819,
para. 50). The Court also noted that
“Iran’s oil production, a vital part of that country’s economy, constitutes an important
component of its foreign trade.

On the material now before the Court, it is . . . not able to determine if and to
what extent the destruction of the Iranian oil platforms had an effect upon the export
trade in Iranian oil . . .” (ibid., p. 820, para. 51).

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

84. The arguments of the Parties in relation to Iran’s claim under that provision have
therefore focussed on the first and last stages of the production/export process. In order to establish
that freedom of commerce in oil between the territories of the Parties was affected by the attack, so
that the destruction of the platforms constituted a breach of Article X, paragraph 1, Iran has sought
to show that oil produced or processed by, stored on, or transported from the platforms attacked
could, to some degree, have been exported to the United States, but this was prevented by the
destruction of the platforms. This has involved explanation of the construction and operation of the

- 40 -

platforms, and assessment of the implications of the damage caused to them by the attacks. The
question has also been raised as to whether there was an impact on overall oil exports to the United
States, contemporaneous with, and attributable to the attacks, or a potential impact of this kind,
amounting to an interference with “freedom” of commerce between the Parties’ territories.

85. Before turning to the facts and to the details of Iran’s claim, the Court will mention one
consideration advanced by the United States which, if upheld, would render unnecessary any
further examination of the effects of the attacks on the platforms. The United States alleges, as has
already been noted in connection with its argument founded on self-defence, that military forces
were stationed on the platforms and played a role in the attacks, attributable to Iran, on United
States vessels and other neutral shipping (see for example the communication from the United
States to the United Nations Security Council of 19 October 1987, quoted in paragraph 48 above).
On this basis, the United States argues that the guarantee of “freedom of commerce” under
Article X, paragraph 1, of the 1955 Treaty cannot have been intended to shield one party’s military
activities against the other, and that therefore the coverage of that Article cannot be extended to the
platforms in question. The United States has not succeeded, to the satisfaction of the Court, in
establishing that the limited military presence on the platforms, and the evidence as to
communications to and from them, could be regarded as justifying treating the platforms as
military installations (see paragraph 76 above). For the same reason, the Court is unable to regard
them as outside the protection afforded by Article X, paragraph 1, of the 1955 Treaty.
86. Iran’s initial claim that the attacks violated Article X, paragraph 1, was based on the
contention that “they destroyed important petroleum installations used by Iran for the commercial
exploitation of its natural resources”, and that “fundamental economic and commercial activities
including oil production, storage and transportation were affected”. The Court in its 1996
Judgment contemplated the possibility that freedom of commerce could be impeded not only by
“the destruction of goods destined to be exported”, but also by acts “capable of affecting their
transport and their storage with a view to export” (I.C.J. Reports 1996 (II), p. 819, para. 50). In the
view of the Court, the activities of the platforms are to be regarded, in general, as commercial in
nature; it does not, however, necessarily follow that any interference with such activities involves
an impact on the freedom of commerce between the territories of Iran and the United States.
87. As regards the first of these categories of activity, “acts entailing the destruction of goods
destined to be exported”, the United States observes, first, that the attacks on the platforms did not
destroy any oil as such; and secondly that in any event the platforms were not engaged in
producing goods destined for export. It explains that the oil extracted by the platforms attacked
was not in a form capable of being exported, either when it came on to or when it left the platforms,
since to transform it into a product capable of being safely exported it was necessary to subject it to
extensive processing, involving the extraction of gas, hydrogen sulphide and water. Iran however
suggests that the question is not whether the oil was capable of being safely exported, but whether
it was a good destined for export; in addition, it observes that equipment required for an initial
processing of the oil extracted was situated on the platforms and destroyed with them by the United
States attacks. It does not however contend that that initial processing rendered the oil capable of
being safely exported.

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88. The Court also included in the category of acts interfering with freedom of commerce
“acts . . . capable of affecting [the] transport and storage with a view to export” of goods destined
to be exported. No storage of oil was effected on the platforms; as regards transport, the Court
noted in 1996 that
“the oil pumped from the platforms attacked in October 1987 passed from there by
subsea line to the oil terminal on Lavan Island and that the Salman complex, object of
the attack of April 1988, was also connected to the oil terminal on Lavan Island by
subsea line” (I.C.J. Reports 1996 (II), pp. 819-820, para. 50).

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

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

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90. The United States in fact contends further that there was in any event no breach of
Article X, paragraph 1, inasmuch as, even assuming that the attacks caused some interference with
freedom of commerce, it did not interfere with freedom of commerce “between the territories of the
two High Contracting Parties”. First, as regards the attack of 19 October 1987 on the Reshadat
platforms, it observes that the platforms were under repair as a result of an earlier attack on them
by Iraq; consequently, they were not engaged in, or contributing to, commerce between the
territories of the Parties. Secondly, as regards the attack of 18 April 1988 on the Salman and Nasr
platforms, it draws attention to United States Executive Order 12613, signed by President Reagan
on 29 October 1987, which prohibited, with immediate effect, the import into the United States of
most goods (including oil) and services of Iranian origin. As a consequence of the embargo
imposed by this Order, there was, it is suggested, no commerce between the territories of the
Parties that could be affected, and consequently no breach of the Treaty protecting it.
91. As the Court noted in its 1996 Judgment, it was then not contested between the Parties
(and is not now contested) that “oil exports from Iran to the United States were . to some
degree . ongoing at least until after the destruction of the first set of oil platforms”, i.e.,
19 October 1987 (I.C.J. Reports 1996 (II), p. 818, para. 44). It appears also to be accepted by both
Parties that the oil or petroleum products reaching the United States during this period were to
some extent derived from crude oil produced by the platforms that were later subjected to attack.
Iran has explained that in peace time it had sold crude oil in cargoes where the producing field was
specifically identified, but during the Iran-Iraq war all Iranian light crudes and heavy crudes were
mixed and sold generically, as either “Iranian light” or “Iranian heavy”. Iran has asserted, and the
United States has not denied, that there was a market for Iranian crude oil directly imported into the
United States up to the issuance of Executive Order 12613 of 29 October 1987. Thus Iranian oil
exports did up to that time constitute the subject of “commerce between the territories of the High
Contracting Parties” within the meaning of Article X, paragraph 1, of the 1955 Treaty.
92. At the time of the attack of 19 October 1987 no oil whatsoever was being produced or
processed by the Reshadat and Resalat platforms, since these had been put out of commission by
earlier Iraqi attacks. While it is true that the attacks caused a major setback to the process of
bringing the platforms back into production, there was at the moment of the attacks on these
platforms no ongoing commerce in oil produced or processed by them. Iran however indicates that
at the time of the attack the platforms were nearly repaired and were about to resume production; it
argues that there was therefore an interference with “freedom of commerce”, when commerce is
conceived as a pattern of trade over the years and not a temporary phenomenon. Injury to potential
for future commerce is however, in the Court’s view, not necessarily to be identified with injury to
freedom of commerce, within the meaning of Article X, paragraph 1, of the 1955 Treaty. In its
Judgment of 12 December 1996, the Court emphasized that the Treaty protected “freedom of
commerce” rather than merely “commerce”; but deduced from this no more than that “the
possibility must be entertained that [that freedom] could 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” (I.C.J. Reports 1996 (II), p. 819, para. 50; emphasis
added).

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93. There is however a further aspect of the question. According to Iran, the “Production
Commissioning” schedule for the repair of the platforms contemplated that production would
resume at a date around 24 October 1987, but the Court has no information whether, at the time of
the attacks, the works were up to schedule. According to Iran, at the time of the attacks the
turbines that supplied power to the platforms were being dismantled for repair, which does not
suggest that the works were within a few days of completion. On 29 October 1987 United States
Executive Order 12613 was issued, which put an end to imports of Iranian crude oil into the United
States. Iran has not brought evidence to show that, if no attack had been made on the Reshadat
platforms, production from them would have been an element of “commerce” between the two
States before all direct commerce was halted by that Executive Order, and the Court cannot regard
that point as established.
94. The embargo imposed by Executive Order 12613 was already in force when the attacks
on the Salman and Nasr platforms were carried out; and, as just indicated, it has not been shown
that the Reshadat and Resalat platforms would, had it not been for the attack of 19 October 1987,
have resumed production before the embargo was imposed. The Court must therefore consider the
significance of that Executive Order for the interpretation and application of Article X,
paragraph 1, of the 1955 Treaty. Iran has not disputed that the effect of the Executive Order was to
halt all direct exports of Iranian crude oil to the United States. The United States therefore argues
that “any damage done to Iran’s oil platforms by U.S. actions was irrelevant to Iran’s ability to
export oil to customers located in the United States”, and that consequently the attacks did not
constitute a violation of the freedom of commerce “between the territories of the two High
Contracting Parties”. Iran however, while not presenting any formal submission or claim that the
embargo was unlawful as itself a breach of Article X, paragraph 1, of the 1955 Treaty, has asserted
that such was the case, and therefore suggests that the argument advanced by the United States
amounts to a party taking advantage of its own wrong. The Iranian contention rests on the
hypothesis that the embargo was a breach of the 1955 Treaty, and not justified under Article XX,
paragraph 1 (d), thereof; but these are questions which Iran has chosen not to put formally in issue,
and on which the Court has thus not heard full argument. The Court is here concerned with the
practical effects of the embargo, about which there is no dispute.
95. In response to the contention of the United States that the damage to the platforms was
irrelevant to Iranian oil exports to the United States, Iran argues that this conclusion does not
follow from the mere fact that direct import into the United States of Iranian crude oil, as such,
ceased with the issue of the embargo. Iran suggests that “It is in the nature of the international oil
trade that Iranian oil could not be excluded from the United States”: “If Iranian crude oil was
received by a refinery”, for example in Western Europe, “and if that refinery in turn exported
products to the United States, then it follows that a quantity of Iranian oil was necessarily imported
into the United States in the form of products”. Iran has observed that, as a result of the embargo,
it found itself in 1987 with a surplus crude oil production of approximately 345,000 barrels per day,
and had to find other outlets, namely in the Mediterranean and North-West Europe. At the same
time, the United States had to make good the shortfall resulting from the prohibition of Iranian
crude oil imports, and therefore increased its existing imports of petroleum products from refineries

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in the Mediterranean and Western Europe. Iran has submitted to the Court an expert report
showing, inter alia, a very considerable increase in exports of Iranian crude oil to Western Europe
from 1986 to 1987, and again in 1988, and an increase in United States imports of petroleum
products from Western European refineries.

96. The Court sees no reason to question the view that, over the period during which the
United States embargo was in effect, petroleum products were reaching the United States, in
considerable quantities, that were derived in part from Iranian crude oil. Executive Order 12613
contained an exception (Section 2 (b)) whereby the embargo was not to apply to “petroleum
products refined from Iranian crude oil in a third country”. It could reasonably be argued that, had
the platforms not been attacked, some of the oil that they would have produced would have been
included in the consignments processed in Western Europe so as to produce the petroleum products
reaching the United States. Whether, according to international trade law criteria, such as the
“substantial transformation” principle, or the “value added approach”, the final product could still
retain for some purposes an Iranian character, is not the question before the Court. What the Court
has to determine is not whether something that could be designated “Iranian” oil entered the United
States, in some form, during the currency of the embargo; it is whether there was “commerce” in
oil between the territories of Iran and the United States during that time, within the meaning given
to that term in the 1955 Treaty.
97. In this respect, what seems to the Court to be determinative is the nature of the
successive commercial transactions relating to the oil, rather than the successive technical
processes that it underwent. What Iran regards as “indirect” commerce in oil between itself and the
United States involved a series of commercial transactions: a sale by Iran of crude oil to a
customer in Western Europe, or some third country other than the United States; possibly a series
of intermediate transactions; and ultimately the sale of petroleum products to a customer in the
United States. This is not “commerce” between Iran and the United States, but commerce between
Iran and an intermediate purchaser; and “commerce” between an intermediate seller and the
United States. After the completion of the first contract Iran had no ongoing financial interest in,
or legal responsibility for, the goods transferred. If, for example, the process of “indirect
commerce” in Iranian oil through Western European refineries, as described above, were interfered
with at some stage subsequent to Iran’s having parted with a consignment, Iran’s commitment and
entitlement to freedom of commerce vis-à-vis the United States could not be regarded as having
been violated.
*

98. The Court thus concludes, with regard to the attack of 19 October 1987 on the Reshadat
platforms, that there was at the time of those attacks no commerce between the territories of Iran
and the United States in respect of oil produced by those platforms and the Resalat platforms,
inasmuch as the platforms were under repair and inoperative; and that the attacks cannot therefore
be said to have infringed the freedom of commerce in oil between the territories of the High

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Contracting Parties protected by Article X, paragraph 1, of the 1955 Treaty, particularly taking into
account the date of entry into force of the embargo effected by Executive Order 12613. The Court
notes further that, at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all
commerce in crude oil between the territories of Iran and the United States had been suspended by
that Executive Order, so that those attacks also cannot be said to have infringed the rights of Iran
under Article X, paragraph 1, of the 1955 Treaty.

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

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

* *

101. On 23 June 1997, within the time-limit fixed for the Counter-Memorial, the United
States filed a Counter-Claim, in its Counter-Memorial, against Iran. It explains that its
“counter-claim is based on actions by Iran in the Persian Gulf during 1987-88 that created
extremely dangerous conditions for shipping, and thereby violated Article X of the 1955 Treaty”.
In the submissions in that pleading (see paragraph 19 above) the United States requests that the
Court adjudge and declare:
“1. That in attacking vessels, laying mines in the Gulf and otherwise engaging in
military actions in 1987-88 that were dangerous and detrimental to maritime
commerce, the Islamic Republic of Iran breached its obligations to the United
States under Article X of the 1955 Treaty, and

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2. That the Islamic Republic of Iran is accordingly under an obligation to make full
reparation to the United States for violating the 1955 Treaty in a form and amount
to be determined by the Court at a subsequent stage of the proceedings.”
These submissions were later modified, as explained below.

102. By an Order of 10 March 1998 the Court found that the alleged attacks on shipping,
laying of mines, and other military actions by Iran were facts capable of falling within the scope of
Article X, paragraph 1, of the 1955 Treaty, that the Court had jurisdiction to entertain the United
States counter-claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by
Article X, paragraph 1 (I.C.J. Reports 1998, p. 204, para. 36), and that it emerged from the Parties’
submissions that their claims rest on facts of the same nature and form part of the same factual
complex, and that the Parties pursue the same legal aim (ibid., p. 205, para. 38); consequently,
considering that the counter-claim presented by the United States was directly connected with the
subject-matter of the claim of Iran (ibid., p. 205, para. 39), the Court found “that the counter-claim
presented by the United States in its Counter-Memorial is admissible as such and forms part of the
current proceedings” (ibid., p. 206, para. 46).
103. Iran maintains that the Court’s Order of 10 March 1998 did not decide all of the
preliminary issues involved in the counter-claim presented by the United States. Iran points out
that, in that Order, the Court only ruled on the admissibility of the United States counter-claim in
relation to Article 80 of the Rules of Court, declaring it admissible “as such”, whilst reserving the
subsequent procedure for further decision.
Iran contends that the Court should not deal with the merits of the counter-claim because:

(a) the counter-claim was presented without any prior negotiation, in disregard of the provisions of
Article XXI, paragraph 2, of the 1955 Treaty;
(b) the United States has no title to submit a claim on behalf of third States or of foreign entities;
(c) the United States counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty, the
only provision over which the Court has jurisdiction; and the Court cannot uphold any
submissions falling outside the terms of paragraph 1 of Article X;
(d) the Court has jurisdiction only as far as freedom of commerce as protected under Article X,
paragraph 1, is concerned but not on counter-claims alleging a violation of freedom of
navigation as protected by the same paragraph;
(e) the United States cannot broaden the actual subject-matter of its claim beyond the submissions
set out in its Counter-Memorial.

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104. The United States contends that the Order of 10 March 1998 settled definitively in its
favour all such issues of jurisdiction and admissibility as might arise.
The Court notes however that the United States is adopting an attitude different from its
position in 1998. At that time, while Iran was asking the Court to rule generally on its jurisdiction
and on the admissibility of the counter-claim, the United States was basing itself solely on
Article 80. It argued in particular that:

“Many of Iran’s objections to jurisdiction and admissibility involve contested
matters of fact which the Court cannot effectively address and decide at this stage,
particularly not in the context of the abbreviated procedures of Article 80 (3)” (cited in

I.C.J. Reports 1998, p. 200, para. 22).
105. The Court considers that it is open to Iran at this stage of the proceedings to raise
objections to the jurisdiction of the Court to entertain the counter-claim or to its admissibility, other
than those addressed by the Order of 10 March 1998. When in that Order the Court ruled on the
“admissibility” of the counter-claim, the task of the Court at that stage was only to verify whether
or not the requirements laid down by Article 80 of the Rules of Court were satisfied, namely, that
there was a direct connection of the counter-claim with the subject-matter of the Iranian claims, and
that, to the extent indicated in paragraph 102 above, the counter-claim fell within the jurisdiction of
the Court. The Order of 10 March 1998 therefore does not address any other question relating to
jurisdiction and admissibility, not directly linked to Article 80 of the Rules. This is clear from the
terms of the Order, by which the Court found that the counter-claim was admissible “as such”; and
in paragraph 41 of the Order the Court further stated that: “a decision given on the admissibility of
a counter-claim taking account of the requirements set out in Article 80 of the Rules in no way
prejudges any question which the Court will be called upon to hear during the remainder of the
proceedings” (I.C.J. Reports 1998, p. 205, para. 41). The Court will therefore proceed to address
the objections now presented by Iran to its jurisdiction to entertain the counter-claim and to the
admissibility thereof.
106. Iran maintains first that the Court cannot entertain the counter-claim of the United
States because it was presented without any prior negotiation, and thus does not relate to a dispute
“not satisfactorily adjusted by diplomacy” as contemplated by Article XXI, paragraph 2, of the
1955 Treaty, which reads as follows:
“Any dispute between the High Contracting Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the High Contracting Parties
agree to settlement by some other pacific means.”

107. The Court cannot uphold this objection of Iran. It is established that a dispute has
arisen between Iran and the United States over the issues raised in the counter-claim. The Court
has to take note that the dispute has not been satisfactorily adjusted by diplomacy. Whether the
fact that diplomatic negotiations have not been pursued is to be regarded as attributable to the

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conduct of the one Party or the other, is irrelevant for present purposes, as is the question whether it
is the Applicant or the Respondent that has asserted a fin de non-recevoir on this ground. As in
previous cases involving virtually identical treaty provisions (see United States Diplomatic and
Consular Staff in Tehran, I.C.J. Reports 1980, pp. 26-28; Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 427-429),
it is sufficient for the Court to satisfy itself that the dispute was not satisfactorily adjusted by
diplomacy before being submitted to the Court.

108. According to the second objection of Iran, the United States is in effect submitting a
claim on behalf of third States or of foreign entities, and has no title to do so. Reference has been
made in the United States argument on the Counter-Claim to incidents involving vessels flying the
flags of the Bahamas, Panama, the United Kingdom and Liberia; Iran contends that the United
States is thus claiming to defend the interests of these States, which are not parties to the present
proceedings.
109. The Court recalls that the first submission presented by the United States in regard to its
counter-claim simply requests the Court to adjudge and declare that the alleged actions of Iran
breached its obligations to the United States, without mention of any third States. Accordingly, the
Court will strictly limit itself to consideration of whether the alleged actions by Iran infringed
freedoms guaranteed to the United States under Article X, paragraph 1, of the 1955 Treaty. The
objection of Iran is thus as such devoid of any object and the Court cannot therefore uphold it.
110. In its third objection, Iran contends that the United States counter-claim extends beyond
Article X, paragraph 1, of the 1955 Treaty, the only text in respect of which the Court has
jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the terms of
paragraph 1 of that Article.
111. The Court notes that, while in its Rejoinder the United States requested the Court to
adjudge and declare
“that, in attacking vessels in the Gulf with mines and missiles and otherwise engaging
in military actions that were dangerous and detrimental to maritime commerce, the
Islamic Republic of Iran breached its obligations to the United States under Article X
of the 1955 Treaty” (emphasis added),

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

“Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf
with mines and missiles and otherwise engaging in military actions that were

dangerous and detrimental to commerce and navigation between the territories of the
United States and the Islamic Republic of Iran, the Islamic Republic of Iran breached
its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty”
(emphasis added).

- 49 -

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

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

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

Iran concludes that

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

113. It seems, nevertheless, that Iran changed its position and recognized that the
counter-claim could be founded on a violation of freedom of navigation. For example, it stated:
“Article X, paragraph 1, refers to ‘freedom of commerce and navigation’. It
appears that these are distinct freedoms, and in your Order of 1998 you referred to
them in the plural . . . Thus there could be navigation between the territories of the
High Contracting Parties without any commerce between those territories, even if
there could not be navigation without any boat!”

114. The Court, in its Order of 10 March 1998, stated that
“Whereas the counter-claim presented by the United States alleges attacks on
shipping, the laying of mines, and other military actions said to be ‘dangerous and
detrimental to maritime commerce’; whereas such facts are capable of falling within
the scope of Article X, paragraph 1, of the 1955 Treaty as interpreted by the 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.” (I.C.J. Reports 1998, p. 204, para. 36.)

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115. Article X, paragraph 1, envisages both freedoms, freedom of commerce and freedom of
navigation, as argued by the United States and accepted by Iran during the oral hearings. As
regards the claim of Iran, it is true that the Court has found that only freedom of commerce is in
issue (paragraph 80 above). However, the Court also concluded in 1998 that it had jurisdiction to
entertain the United States Counter-Claim in so far as the facts alleged may have prejudiced the
freedoms (in the plural) guaranteed by Article X, paragraph 1, of the 1955 Treaty (emphasis
added), i.e., freedom of commerce and freedom of navigation. This objection of Iran thus cannot
be upheld by the Court.
116. Iran presents one final argument against the admissibility of the United States
counter-claim, which however it concedes relates only to part of the counter-claim. Iran contends
that the United States has broadened the subject-matter of its claim beyond the submissions set out
in its counter-claim by having, belatedly, added complaints relating to freedom of navigation to its
complaints relating to freedom of commerce, and by having added new examples of breaches of
freedom of maritime commerce in its Rejoinder in addition to the incidents already referred to in
the Counter-Claim presented with the Counter-Memorial.
117. The issue raised by Iran is whether the United States is presenting a new claim. The
Court is thus faced with identifying what is “a new claim” and what is merely “additional evidence
relating to the original claim”. It is well established in the Court’s jurisprudence that the parties to
a case cannot in the course of proceedings “transform the dispute brought before the Court into a
dispute that would be of a different nature” (Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 63). In other
words:
“the liberty accorded to the parties to amend their submissions up to the end of the oral
proceedings must be construed reasonably and without infringing the terms of
Article 40 of the Statute and Article 32, paragraph 2, of the [1936] Rules which
provide that the Application must indicate the subject of the dispute” (Société
Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173).

A fortiori, the same applies to the case of counter-claims, having regard to the provisions of
Article 80 of the Rules of Court, and in particular taking into account the fact that it is on the basis
of the counter-claim as originally submitted that the Court determines whether it is “directly
connected with the subject-matter of the claim”, and as such admissible under that text.

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

118. The Court has noted in its Order of 10 March 1998 in the present case that the
Counter-Claim alleged “attacks on shipping, the laying of mines, and other military actions said to
be ‘dangerous and detrimental to maritime commerce’” (I.C.J. Reports 1998, p. 204, para. 36).

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The Court concluded that the counter-claim was admissible in so far as “the facts alleged may have
prejudiced the freedoms guaranteed by Article X, paragraph 1” (ibid.).

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

The Court therefore cannot uphold the objection of Iran.

119. Having disposed of all objections of Iran to its jurisdiction over the counter-claim, and
to the admissibility thereof, the Court has now to consider the counter-claim on its merits. To
succeed on its counter-claim, the United States must show that:
(a) its freedom of commerce or freedom of navigation between the territories of the High
Contracting Parties to the 1955 Treaty was impaired; and that
(b) the acts which allegedly impaired one or both of those freedoms are attributable to Iran.
The Court would recall that Article X, paragraph 1, of the 1955 Treaty does not protect, as between
the Parties, freedom of commerce or freedom of navigation in general. As already noted above
(paragraph 90), the provision of that paragraph contains an important territorial limitation. In order
to enjoy the protection provided by that text, the commerce or the navigation is to be between the
territories of the United States and Iran. The United States bears the burden of proof that the
vessels which were attacked were engaged in commerce or navigation between the territories of the
United States and Iran.

120. The Court will thus examine each of Iran’s alleged attacks, in chronological order, from
the standpoint of this requirement of the 1955 Treaty:
(a) 24 July 1987: A mine attack on the US-reflagged steam tanker Bridgeton (see paragraph 63
above) in an international shipping channel approximately 18 nautical miles south-west of the
Iranian island of Farsi, while en route from Rotterdam, Netherlands, via Fujairah Anchorage,
United Arab Emirates, to Mina al-Ahmadi, Kuwait. The Court notes that the ship was not
engaged in commerce or navigation between the territories of the two High Contracting Parties.
(b) 10 August 1987: A mine attack on the US bareboat-chartered, Panamanian-flagged, Texaco
Caribbean (see paragraph 63 above), at the Khor Fakkan anchorage off Fujairah, which was
laden with a cargo of Iranian light crude being carried from Larak Island Terminal, Iran, to
Rotterdam, Netherlands. The Court notes that Iran conceded that the Texaco Caribbean was
engaged in commerce between the territories of the two States; but this was in the context of

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its contention, in relation to its own claim, that the term “commerce” covers “indirect
commerce” as well. It therefore requested the Court to dismiss the United States claim
concerning this ship on different grounds, namely that the mine incident was not attributable to
Iran, and that the United States suffered no loss since the ship was a Panamanian-owned vessel
carrying a Norwegian-owned cargo. The United States argued, in relation to the claim of Iran,
against such a broad interpretation of the term “commerce” in Article X, paragraph 1, of the
1955 Treaty and also adduced evidence that the cargo was owned by a United States
corporation. Since the Court has concluded that the process of “indirect commerce” in Iranian
oil through Western European refineries does not represent “commerce between the territories
of the two High Contracting Parties” for the purposes of Article X, paragraph 1, of the
1955 Treaty (see paragraph 97 above), and taking account of the fact that the destination was
not a United States port, the Court concludes that the vessel was not engaged in commerce or
navigation between Iran and the United States.

(c) 15 August 1987: A mine attack on the United Arab Emirates flag supply vessel Anita in the
vicinity of Khor Fakkan anch, orage off Fujairah while proceeding to supply the vessels in the
anchorage. The Court notes that the ship was not engaged in commerce or navigation between
the territories of the two High Contracting Parties.
(d) 15 October 1987: A missile attack on the US-owned, Liberian-flagged Sungari, while at
anchor 10 miles off Mina al-Ahmadi Sea Island Terminal, Kuwait. The Court notes that the
ship was not engaged in commerce or navigation between the territories of the two High
Contracting Parties.
(e) 16 October 1987: A missile attack on the US-reflagged Sea Isle City (see paragraph 52 above),
which was proceeding from its anchorage to the oil loading terminal at Kuwait’s Mina
al-Ahmadi Terminal. The Court notes that the ship was not engaged in commerce or
navigation between the territories of the two High Contracting Parties.
(f) 15 November 1987: A gunboat attack on the US-owned, Liberian-flagged, motor tanker Lucy,
near the Strait of Hormuz, off Al Khassat, northern Oman, en route to Ras Tanura, Saudi
Arabia, from Oita, Japan. The Court notes that the ship was not engaged in commerce or
navigation between the territories of the two High Contracting Parties.
(g) 16 November 1987: A gunboat attack on the US-owned, Bahamian-flagged, steam tanker Esso
Freeport en route from Ras Tanura, Saudi Arabia, to the Louisiana Offshore Oil Pipeline
Terminal, United States. The Court notes that the ship was not engaged in commerce or
navigation between the territories of the two High Contracting Parties.
(h) 7 February 1988: A frigate attack on the US-owned, Liberian-flagged, motor tanker Diana,
while loaded with crude oil from Ras Tanura, Saudi Arabia, en route from Bahrain and the
United Arab Emirates to Japan. The Court notes that the ship was not engaged in commerce or
navigation between the territories of the two High Contracting Parties.

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(i) 14 April 1988: A mine attack on the USS Samuel B. Roberts (US warship) near the Shah
Allum Shoal, while returning to Bahrain after escorting a convoy of US-flagged vessels. As a
warship, the USS Samuel B. Roberts does not enjoy the protection of freedom of navigation
guaranteed by Article X, paragraph 1, of the 1955 Treaty. Paragraph 6 of that Article states
that “The term ‘vessels’, as used herein . . . does not, except with reference to paragraphs 2
and 5 of the present Article, include . . . vessels of war”. The United States is nevertheless
contending that since the USS Samuel B. Roberts was escorting commercial vessels, it enjoys
the protection by the 1955 Treaty of freedom of commerce. However, at all events, these
vessels were neither navigating nor engaged in commerce between Iran and the United States.
Consequently, the United States has not shown a breach of Article X, paragraph 1, of the
1955 Treaty in relation to the incident involving the USS Samuel B. Roberts.
(j) 11 June 1988: Speedboat attacks on the US-owned, British-flagged, steam tanker Esso
Demetia, loaded at Umm Said and Ras Tanura, Saudi Arabia, en route to Halul Island, Qatar, to
complete loading for a planned discharge in Singapore. The Court notes that the ship was not
engaged in commerce or navigation between the territories of the two High Contracting Parties.
121. None of the vessels described by the United States as being damaged by Iran’s alleged
attacks was engaged in commerce or navigation “between the territories of the two High
Contracting Parties”. Therefore, the Court concludes that there has been no breach of Article X,
paragraph 1, of the 1955 Treaty in any of the specific incidents involving these ships referred to in
the United States pleadings.
122. The United States has also presented its claim in a generic sense. It has asserted that as
a result of the cumulation of attacks on United States and other vessels, laying mines and otherwise
engaging in military actions in the Persian Gulf, Iran made the Gulf unsafe, and thus breached its
obligation with respect to freedom of commerce and freedom of navigation which the United States
should have enjoyed under Article X, paragraph 1, of the 1955 Treaty.
123. The Court cannot disregard the factual context of the case, as described in
paragraphs 23 and 44 above. While it is a matter of public record that as a result of the Iran-Iraq
war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for the
Court to decide that Article X, paragraph 1, of the 1955 Treaty was breached by Iran. It is for the
United States to show that there was an actual impediment to commerce or navigation between the
territories of the two High Contracting Parties. However, according to the material before the
Court the commerce and navigation between Iran and the United States continued during the war
until the issuance of the United States embargo on 29 October 1987, and subsequently at least to
the extent permitted by the exceptions to the embargo. The United States has not demonstrated that
the alleged acts of Iran actually infringed the freedom of commerce or of navigation between the
territories of the United States and Iran.
The Court considers that, in the circumstances of this case, a generic claim of breach of
Article X, paragraph 1, of the 1955 Treaty cannot be made out independently of the specific
incidents whereby, it is alleged, the actions of Iran made the Persian Gulf unsafe for commerce and

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navigation, and specifically for commerce and navigation between the territories of the parties.
However, the examination in paragraph 120 above of those incidents shows that none of them
individually involved any interference with the commerce and navigation protected by the
1955 Treaty; accordingly the generic claim of the United States cannot be upheld.

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

* *

125. For these reasons,
THE COURT,

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

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

AGAINST: Judges Al-Khasawneh, Elaraby;

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(2) By fifteen votes to one,
Finds that the counter-claim of the United States of America concerning the breach of the
obligations of the Islamic Republic of Iran under Article X, paragraph 1, of the above-mentioned
1955 Treaty, regarding freedom of commerce and navigation between the territories of the parties,
cannot be upheld; and accordingly, that the counter-claim of the United States of America for
reparation also cannot be upheld.

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

AGAINST: Judge Simma.

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

(Signed) SHI Jiuyong,
President.

(Signed) Philippe COUVREUR,
Registrar.

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