INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS ADVISORY OPINIONS AND ORDERS CASE CONCERNING OIL PLATFORMS ISLAMIC REPUBLIC OF IRAN v UNITED STATES OF AMERICA JUDGMENT OF 6 NOVEMBER 2003 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES RÉPUBLIQUE ISLAMIQUE D'IRAN c ÉTATS-UNIS D'AMÉRIQUE ARRÊT DU 6 NOVEMBRE 2003 Officia1 citation Oil Platforms Zslamic Republic of Iran v United States of America Judgment I C J Reports 2003 p 161 Mode officiel de citation Plates-formes pétrolières République islamique d'Iran c Etats- Unis d'Amérique arrêt C I J Recueil 2003 p 16 1 ISSN 0074-444 1 ISBN 92- 1-070984-5 Sales number No de vente 876 6 NOVEMBER 2003 JUDGMENT OIL PLATFORMS ISLAMIC REPUBLIC OF IRAN v UNITED STATES OF AMERICA 6 NOVEMBRE 2003 ARRÊT INTERNATIONAL COURT OF JUSTICE 2003 6 November General List No 90 YEAR 2003 6 November 2003 CASE CONCERNING OIL PLATFORMS ISLAMIC REPUBLIC OF IRAN v UNITED STATES OF AMERICA 1955 Treaty of Amity Economic Relations and Consular Rights between the United States and Iran - Iranian claims and United States counter-claim for breach of Article X paragraph 1 - Jurisdiction based on Article XXI paragraph 2 - Factual background United States contention that the Court should reject Iran's claims and refuse it the relief it seeks because of Iran's allegedly unlawful conduct - Clean hands - Argument not presented as objection to admissibility - Not necessary to decide the issue Iranian claims based on Article X paragraph 1 of Treaty - Alleged infringement of freedom of commerce between the territories of the Parties by attack on Iranian oil platforms - Judgment of 12 December 1996 on jurisdiction - Relevance of other Articles for interpretation or application of Article X paragraph 1 - Task of the Court to ascertair whether there has been a breach of Article X paragraph 1 - United States contention that Article XX paragraph 1 d concerning measures necessary to protect the essential security interests of aparty is determinative of the question - Order in which the Court should examine Articles X paragraph 1 and XX paragraph 1 d - Freedom of Court to choose grounds for its decision - Particular considerations in this case militating in favour of an examination of Article XX paragraph 1 d prior to Article X paragraph 1 - Relationship between Article XX paragraph 1 d and international law on the use of force - Jurisdiction of the Court to interpret and apply Article XX paragraph 1 d extending where appropriate to the determination whether action was or not unlawful use of force by reference to international law - Provisions of the United Nations Charter and customary international law - Jurisdiction of the Court limited to that conferred by the consent of the Parties Article X X paragraph 1 d - Measures necessary to protect the party's essential security interests - Criterion of necessity to be assessed by the Court - Overlapping of question whether the measures taken were necessary and of their validity as acts of self-defence -Actions on the platforms amounted to a use of force Attack of 19 October 1987 on Reshadat - United States contention that this action was necessary to protect its essential security interests and a valid act of self-defence - Question of the existence of an armed attack on the United States - Missile attack on the Sea Isle City - Burden of proof of the existence of an attack by Iran on the United States not discharged - Alleged series of attacks by Iran not an armed attack on the United States - Attacks of 18 April1988 on Nasr and Salman and Operation Praying Mantis - Mining of the U S S Samuel B Roberts -Evidence inconclusive that the vesse1 was the victim of a mine laid by Iran - Mine incident not an armed attack by Iran against the United States Examination of criteria of necessity andproportionality in the context of selfdefence - Nature of the target of the force used in self-defence insufJicient evidence as to the signzjicance of the military presence and activity on the platforms - Attacks on the platforms not meeting the criteria of necessity and proportionality under the right of self-defence Attacks on the platforms not justzjîed under Article XX paragraph 1 d as measures necessary to protect the essential security interests of the United States being acts of armed force not qualifying under international law as acts of self-defence Article X paragraph 1 - Scope of the 1996 Judgment - Question whether the United States actions affected 'ffreedom of commerceJ' under Article X paragraph 1 - Meaning of commerce in that text - Not limited to maritime commerce nor to activities of purchase and sale - No justzjication for treating platforms as military installations and thus outside protection of Article X paragraph 1 Nature of commercial activities protected - United States attacks entailing destruction of goods destined to be exported and affecting transport of these goods with a view to export - Attacks impeded Iran's freedom of commerce Treaty limitation to freedom of commerce between the territories of the two High Contracting Parties - Exports of Iranian oil to United States territory until29 October 1987 - Reshadat and Resalat platforms under repair at the time they were attacked - United States Executive Order 12613 of 29 October 1987 imposing an embargo on goods of Iranian origin - No exports of Iranian crude oil to the United States after 29 October 1987 - Legality of the embargo not before the Court - Salman and Nasr platforms attacked after enactment of embargo - Import into United States of petroleum products derived from Iranian crude oil not constituting commerce between the territories of the Parties for the purposes of the 1955 Treaty - Attacks on the platforms not a breach of Article X paragraph 1 United States counter-claim - Scope of the Order of 10 March 1998 - Iranian objections to jurisdiction and to admissibility of the counter-claim other than those decided under Article 80 paragraph 3 of the Rules of Court First objection of Iran - Contention that the counter-claim was presented without prior negotiation - Dispute not satisfactorily adjusted by diplomacy for the purposes of Article XXI paragraph 2 - Second objection of Iran Contention that the counter-claim was made on behalfof third States or foreign entities - Counter-claim limited to alleged breaches of freedoms guaranteed to the United States - Third objection of Iran - Contention that the counterclaim is beyond Article X paragraph 1 - United States limiting the scope of its counter-claim - Fourth objection of Iran - Contention that jurisdiction of the Court does not extend to freedom of navigation - Jurisdiction to deal with freedom of commerce and navigation under Article X paragraph 1 - Fzyth objection by Iran - Admissibility - Alleged broadening of counter-claim by the United States - No transformation of the subject of the dispute originally submitted to the Court Examination of speczjîc incidents invoked by the United States - None of the vessels involved engaged in commerce or navigation between the territories of the Parties - No breach of Article X paragraph 1 - United States generic counter-claim - No proof that actions of Iran infringed the freedom of commerce or of navigation between the territories of the Parties - No speczjîc incident constituted a breach of Treaty - Generic counter-claim cannot be upheld JUDGMENT Present President SHI Vice-President RANJEVA Judges GUILLAUME KOROMA VERESHCHETIN HIGGINS PARRA-ARANGUREN KOOIJMANS REZEK 6 AL-KHASAWNEH BUERGENTHAL ELARABY OWADA SIMMA TOMKA Judge ad hoc RIGAUX Registrar COUVREUR In the case concerning oil platforms between the Islamic Republic of Iran represented by Mr M H Zahedin-Labbaf Agent of the Islamic Republic of Iran to the Iran-United States Claims Tribunal Deputy Director for Legal Affairs Bureau of International Legal Services of the Islamic Republic of Iran The Hague as Agent Mr D Momtaz Professor of International Law Tehran University member of the International Law Commission Associate Member of the Institute of International Law Mr S M Zeinoddin Head of Legal Affairs National Iranian Oil Company Mr Michael Bothe Professor of Public Law Johann Wolfgang Goethe University of Frankfurt-am-Main Head of Research Unit Peace Research Institute Frankfurt Mr James R Crawford S C F B A Whewell Professor of International Law University of Cambridge member of the English and Australian Bars Member of the Institute of International Law 7 Mr Alain Pellet Professor at the University of Paris X-Nanterre member and former Chairman of the International Law Commission Mr Rodman R Bundy avocat à la cour d'appel de Paris member of the New York Bar Frere Cholmeley Eversheds Paris Mr David S Sellers avocat à la cour d'appel de Paris Solicitor of the Supreme Court of England and Wales Frere Cholmeley Eversheds Paris as Counsel and Advocates Mr M Mashkour Deputy Director for Legal Affairs Bureau of International Legal Services of the Islamic Republic of Iran Mr M A Movahed Senior Legal Adviser National Iranian Oil Company Mr R Badri Ahari Legal Adviser Bureau of International Legal Services of the Islamic Republic of Iran Tehran Mr A Beizaei Legal Adviser Bureau of International Legal Services of the Islamic Republic of Iran Paris Ms Nanette Pilkington avocat à la cour d'appel de Paris Frere Cholmeleyl Eversheds Paris Mr William Thomas Solicitor of the Supreme Court of England and Wales Frere Cholmeley Eversheds Paris Mr Leopold von Carlowitz Research Fellow Peace Research Institute Frankfurt Mr Mathias Forteau docteur en droit Researcher at the Centre de droit international de Nanterre CEDIN University of Paris X-Nanterre as Counsel Mr Robert C Rizzutti Vice-President Cartographic Operations International Mapping Associates as Technical Adviser and the United States of America represented by The Honourable William H Taft IV Legal Adviser United States Department of State as Agent Mr Ronald J Bettauer Deputy Legal Adviser United States Department of State as Co-Agent Mr Michael J Matheson Professor George Washington University School of Law Mr D Stephen Mathias Assistant Legal Adviser for United Nations Affairs United States Department of State Mr Michael J Mattler Attorney-Adviser United States Department of State Mr Sean Murphy Professor George Washington University School of Law Mr Ronald D Neubauer Associate Deputy General Counsel United States Department of Defense Mr Prosper Weil Professor Emeritus University of Paris II Member of the Institute of International Law member of the Académie des sciences morales et politiques Institut de France as Counsel and Advocates Mr Paul Beaver Defence Maritime Affairs Consultant Ashbourne Beaver Associates Ltd London Mr John Moore Senior Associate C O Resources Washington D C as Advocates Mr Clifton M Johnson Legal Counsellor United States Embassy The Hague Mr David A Kaye Deputy Legal Counsellor United States Embassy The Hague Ms Kathleen Milton Attorney-Adviser United States Department of State as Counsel Ms Marianne Hata United States Department of State Ms Cécile Jouglet United States Embassy Paris Ms Joanne Nelligan United States Department of State Ms Aileen Robinson United States Department of State Ms Laura Romains United States Embassy The Hague as Administrative Staff composed as above 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 al1 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 CounterMemorial 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 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 François 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 CounterMemorial 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 US-flag or US-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 counter-claim 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 counterclaim 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 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 timelimit 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 abovementioned 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 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 al1 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 pur- suant 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 Mr M H Zahedin-Labbaf For Iran 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 TT le Honourable William H Taft IV 1L Ir Paul Beaver 1L Ir D Stephen Mathias 1L Ir Ronald D Neubauer 1L Ir John Moore 1L Ir Ronald J Bettauer 1L r Michael J Mattler 1L r Michael J Matheson 1L Ir Prosper Weil 1L r Sean Murphy 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 c d e 19 In Parties under Articles 1 and X 1 of the Treaty of Amity and international law 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 1 and X l and international law 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 any other remedy the Court may deem appropriate the written proceedings the following submissions were made by the On behalfof the Government of Iran in the Memorial 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 1 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 1 That the United States' counter-claim does not fa11 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 CounterClaim and in Chapter VI11 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 al1 submissions to the contrary to adjudge and declare That the United States' counter-claim be dismissed On behalfof 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 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 al1 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 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 al1 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 al1 contrary claims and submissions to adjudge and declare That the United States counter-claim be dismissed On behalfof 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 al1 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 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 1 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 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 al1 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 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 Le 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 con- duct Thus the United States claims that the attacks on the platforms were a consequence of Iran's previous wrongful behaviour in the Persian Gulf 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 perrnitted 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 judgrnent 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 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 1 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 forrn the basis of the Court's jurisdiction ibid p 8 16 para 36 It found further that Article 1 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 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 1 C J Reports 1996 II p 81 1 para 20 In accordance with Article XXI paragraph 2 of the Treaty it is now for the Court to interpret and apply that subparagraph 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 1 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 o f ' I C J Reports 1986 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 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 judgrnent 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 fa11 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 al1 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 the Court need not address the question of self-defence Tlhe 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 and 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 1 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 entai1 an assessment of the conditions of legitimate self-defence under international law 41 It should not be overlooked that Article 1 of the 1955 Treaty quoted in paragraph 31 above declares that There shall be firrn 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 1 C J Reports 1996 II p 8 15 para 3 1 It is hardly consistent with Article 1 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 Art 31 para 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 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 United StatesINicaragua 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 'hot purely a question for the subjective judgment of the party 1C 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 ibid 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 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 Al1 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 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 Sl19219 In accordance with Article 51 of the Charter of the United Nations 1wish 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 Iranianoccupied 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-ordinatedminelaying 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 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 1 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 1 C J Reports 1986 p 101 para 191 since In the case of individual selfdefence 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 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 landlaunched 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 S e a 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 vesse1 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 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 vesse1 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 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 al1 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 1 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 arrned 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 nonbelligerent vessels in Kuwaiti waters in pursuit of peaceful commerce and that 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 al1 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 o f 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 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 al1 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 SI1979 1 In accordance with Article 51 of the Charter of the United Nations 1wish 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 vesse1 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 US 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 US 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 O100 Eastern Daylight Time 18 April US 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 US actions have been against legitimate military targets Al1 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 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 vesse1 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 al1 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 Furtherrnore 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 US 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 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 selfdefence 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 al1 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 1 C J Reports 1986 p 103 para 194 One aspect of these criteria is the nature of the target of the force used 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 coordinating 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 vesse1 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 disposa1 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 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 selfdefence to the conditions of necessity and proportionality is a rule of customary international law Z C J Reports 1996 1 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 selfdefence 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 1 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 force not qualifying under international law on the question as acts of self-defence and thus did not fa11 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 Judgrnent 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 1 C J Reports 1996 II p 8 17 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 ibid 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 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 ibid 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 1 C J Reports 1996 II p 8 19 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 focused on the first and last stages of the productionlexport 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 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 selfdefence 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 1 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 platforrns 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 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 1 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 al1 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 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 9 1 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 Le 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 al1 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 47 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 1C J Reports 1996 II p 8 19 para 50 emphasis added 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 al1 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 al1 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 US 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 forma1 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 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 terrn 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 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 al1 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 CounterMemorial the United States filed a counter-claim in its CounterMemorial 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 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 1 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 1 C J Reports 1998 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 al1 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 104 The United States contends that the Order of 10 March 1998 settled definitively in its favour al1 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 abbre- viated procedures of Article 80 3 Cited in 1 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 ibid 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 counterclaim 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 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 3 n 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 1 C J Reports 1984 pp 427429 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 al1 submissions to the contrary that in attacking vessels in the Gulf with mines and missiles and othenvise 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 The United States in presenting its final submissions on the counterclaim 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 l 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 1 C J Reports 1998 p 204 para 36 115 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 Le 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 1 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 Z J Series AIB 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 1 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 ' 1C J Reports 1998 p 204 para 36 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 al1 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 United States-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 United States bareboatchartered 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 its contention in relation to its own claim that the term dommerce 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 anchorage 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 United States-owned Liberian-flagged Sungari while at anchor 10 miles off Mina alAhmadi 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 United States-reflagged Sea Isle City see paragraph 52 above which was proceeding from its anchorage to the oil loading terminal at Kuwait's Mina alAhmadi 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 United States-owned Liberian-flagged motor tanker Lucy near the Strait of Horrnuz 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 United States-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 United States-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 i 14 April 1988 A mine attack on the USS Samuel B Roberts United States warship near the Shah Allum Shoal while returning to Bahrain after escorting a convoy of United States-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 al1 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 United States-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 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 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 jînds 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 Judges Al-Khasawneh Elaraby 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 AGAINST 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 IN 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 SHIJiuyong 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 Initialled J Y S Initialled Ph C