Institution: International Court of Justice

Event: Pearl-MUN 2001

Presiding: Maryam Al Hamad and Nada Abduljader

Assisted by: Faisal Al Shatti, Lulwa Al Omani, Aysha Al Omani
and Shaikha Al Sager

 

The Case of the Islamic Republic of Iran

Advocate: Nabil Al Khaled

Versus
The United States of America

Advocate: Saad Al Ghawas

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An Appropriate Theme
(Actually from "Perry Mason")

1- ICJ (Introduction)

The ICJ, the chief judicial body of the United Nations, empowered to resolve international disputes between member nations who submit a case to the court.

The International Court of Justice, also known as the World Court, is located in The Hague, Netherlands. Founded in 1946 to replace the Permanent Court of International Justice, it is the principal judicial body of the United Nations. The International Commission of Jurists (ICJ) has followed the progress made to establish an International Criminal Court for many years. It closely followed the work of the International Law Commission and in 1993, it placed the Court on the agenda of the World Conference on Human Rights. The ICJ actively participated in the work of the Ad Hoc Committee and the Preparatory Committee in New York. The ICJ has been serving on the Steering Committee of an active and highly organized NGO Coalition for the Establishment of an International Criminal Court.

2- ICJ (History)

The creation of the Court represented the culmination of a long development of methods for the pacific settlement of international disputes, the origins of which can be said to go back to classical times. Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements, to which good offices should also be added. Among these methods, certain involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the influence of a third party. Arbitration goes further, in the sense that the dispute is in fact submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement, except that a court is subject to stricter rules than an arbitral tribunal in procedural matters, for example.

Historically speaking, mediation and arbitration preceded judicial settlement. The former was known in ancient India and in the Islamic world, whilst numerous examples of the latter are to be found in ancient Greece, in China, among the Arabian tribes, in the early Islamic world, in maritime customary law in medieval Europe and in Papal practice.

The modern history of international arbitration is, however, generally recognized as dating from the so-called Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task it would be to settle a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. Whilst it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. They re-awakened interest in the process of arbitration. Throughout the 19th century, the United States and the United Kingdom had recourse to them, as did other States in Europe and the Americas.

The Hague Peace Conference of 1899 marked the beginning of a third phase in the modern history of international arbitration. The chief object of the Conference, in which a remarkable innovation the smaller States of Europe, some Asian States and Mexico also participated, was to discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.




The Islamic Republic of Iran's Statement of Facts

STATEMENT OF FACTS

This case arises out of the attack 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. As will be described below, these acts constitute a fundamental breach of various provisions of the Treaty of Amity and international law.

On 19 October 1987, an attack was launched by four US guided-missile destroyers, the Young, Hoel, Kidd and Leftwich, against the Iranian oil platforms Result and Reshadat, owned and operated by the National Iranian Oil Company in the Persian Gulf.

The Resalat and Reshadat platforms are located in the continental shelf and exclusive economic zone of the Islamic Republic. They form part of a larger series of oil installations involving more than 100 producing wells and platforms essential to the Iranian commercial oil industry.


This is no place for pleasure boating.

On 19 October 1987, a radio warning was issued by the US naval forces of the attack, with the information to personnel on the platform that firing would begin in 20 minutes. At 1400 hours, the US vessels began their attack using 5-inch guns, the largest naval artillery in the Persian Gulf at the time. The attack lasted for 90 minutes, and over 1,000 rounds of ammunition were used.

As a result of the attack, one platform was completely obliterated, and the other was 90 per cent destroyed. This resulted in the complete stoppage of oil production from the underlying oilfields to date.

In addition, lack of time for complete evacuation led to casualties and fatalities of oil workers on the platforms, counted to have caused the deaths of 43 workers, and injuries to 85 more.

In statements made after the incident, the United States sought to justify the attack as a "lawful exercise of the right of self-defense", and as a "measured response'' to an alleged Iranian attack against the reflagged Kuwaiti tanker Sea Isle City said to have been launched from the Fao Peninsula along the northern stretches of the Persian Gulf.

In subsequent submissions, the Islamic Republic will show that these allegations are devoid of any factual or legal merit. For present purposes' however, it is important to note that as a victim of an imposed war, and having been subject to 8 years of attacks by Iraqi forces on its oil installations and commercial shipping, the Islamic Republic of Iran was fully entitled to take all measures to protect itself from the aggressor State, and to verify that war contraband was not being shipped to Iraq in violation of the laws of neutrality. As a reinforcement to this fact, the United States of America was also proven to attempt to incite an overthrowing of the Iranian government preceding this event.

In such circumstances, the attack on these platforms constituted an unjustifiable violation of the applicable principles and rules of international law and the Treaty of Amity.

On the morning of 18 April 1988, and after only 5 minutes' warning to the oil workers on the platforms, US forces attacked another series of oil installations in the Persian Gulf owned and operated by the National Iranian Oil Company causing serious damage and killing 21 civilian worker and injuring 32 others.

One of the installations attacked was the Nasr production platform located in the continental shelf and exclusive economic zone of the Islamic Republic, off the Iranian island of Sirri. As a result of the attack, the central Nasr platform was destroyed and a near-by platform seriously damaged. Both platforms remain out of operation to date.

Simultaneously, on 18 April 1988, US forces also attacked the Salman complex. Platforms associated with the Salman Field are located in the continental shelf and also in the exclusive economic zone of the Islamic Republic of Iran. The main platform was destroyed and remains out of operation to date.

In the statements made after the incident, the United States sought to justify the attacks, again, as "necessary" and "proportionate" "self-defence" in response to an alleged Iranian attack against USS Samuel B. Roberts that had struck a mine and had been damaged at approximately 60 miles east of Bahrain in the Persian Gulf, four days earlier on 14 April 1988. The United States has also subsequently attempted to characterize the NIOC oil platforms as "legitimate" "military targets in the Persian Gulf which have been used for attacks against non-belligerent shipping in the international waterways of the [Persian] Gulf".

The Islamic Republic has denied both allegations and will show in the subsequent submissions that they are devoid of any factual or legal merit, and are irrelevant to the hostile actions of the United States. If USS Samuel B. Roberts had struck a mine it was wrong to attribute this to the Islamic Republic when, as well known to the United States, Iraq was the main source of mine laying in the Persian Gulf and the Islamic Republic frequently used its minesweeping vessels to clear the area. Moreover, it is obvious that the NIOC oil platforms had no means of defence or no military value, and, in particular had no role in the damaging of the USS Samuel B. Roberts.

In such circumstances, the attack on these platforms also constituted an unjustifiable violation of the applicable principles and rules of international law and the Treaty of Amity.

 

 

 

BACKGROUND FROM THE IRANIAN SIDE

Iran

The Tanker War

The tanker war seemed likely to precipitate a major international incident for two reasons. First, some 70 percent of Japanese, 50 percent of West European, and 7 percent of American oil imports came from the Persian Gulf in the early 1980s. Second, the assault on tankers involved neutral shipping as well as ships of the belligerent states.

The tanker war had two phases. The relatively obscure first phase began in 1981, and the well-publicized second phase began in 1984. As early as May 1981, Baghdad had unilaterally declared a war zone and had officially warned all ships heading to or returning from Iranian ports in the northern zone of the Gulf to stay away or, if they entered, to proceed at their own risk. The main targets in this phase were the ports of Bandar-e Khomeini and Bandar-e Mashur; very few ships were hit outside this zone. Despite the proximity of these ports to Iraq, the Iraqi navy did not play an important role in the operations. Instead, Baghdad used Super Frelon helicopters equipped with Exocet missiles or Mirage F-1s and MiG-23s to hit its targets.

In March 1984, the tanker war entered its second phase when an Iraqi Super Etendard fired an Exocet missile at a Greek tanker south of Khark Island. Until the March assault, Iran had not intentionally attacked civilian ships in the Gulf. The new wave of Iraqi assaults, however, led Iran to reciprocate. In April 1984, Tehran launched its first attack against civilian commercial shipping by shelling an Indian freighter. Most observers considered that Iraqi attacks, however, outnumbered Iranian assaults by three to one.

Iran's retaliatory attacks were largely ineffective because a limited number of aircraft equipped with long-range antiship missiles and ships with long-range surface-to-surface missiles were deployed. Moreover, despite repeated Iranian threats to close the Strait of Hormuz, Iran itself depended on the sea-lanes for vital oil exports. Nonetheless, by late 1987 Iran's mine-laying activities and attacks on ships had drawn a large fleet of Western naval vessels to the Gulf to ensure that the sea-lanes were kept open.

Iran

Terror and Repression

Following the fall of Bani Sadr, opposition elements attempted to reorganize and to overthrow the government by force. The government responded with a policy of repression and terror. The government also took steps to impose its version of an Islamic legal system and an Islamic code of social and moral behavior.

Bani Sadr remained in hiding for several weeks. Believing he was illegally impeached, he maintained his claim to the presidency, formed an alliance with Mojahedin leader Masoud Rajavi, and in July 1981 escaped with Rajavi from Iran to France. In Paris, Bani Sadr and Rajavi announced the establishment of the National Council of Resistance (NCR) and committed themselves to work for the overthrow of the Khomeini regime. They announced a program that emphasized a form of democracy based on elected popular councils; protection for the rights of the ethnic minorities; special attention to the interests of shopkeepers, small landowners, and civil servants; limited land reform; and protection for private property in keeping with the national interest. The Kurdish Democratic Party, the National Democratic Front, and a number of other small groups and individuals subsequently announced their adherence to the NCR.

Meanwhile, violent opposition to the regime in Iran continued. On June 28, 1981, a powerful bomb exploded at the headquarters of the IRP while a meeting of party leaders was in progress. Seventy-three persons were killed, including the chief justice and party secretary general Mohammad Beheshti, four cabinet ministers, twenty-seven Majlis deputies, and several other government officials. Elections for a new president were held on July 24, and Rajai, the prime minister, was elected to the post. On August 5, 1981, the Majlis approved Rajai's choice of Ayatollah Mohammad Javad-Bahonar as prime minister.

Rajai and Bahonar, along with the chief of the Tehran police, lost their lives when a bomb went off during a meeting at the office of the prime minister on August 30. The Majlis named another cleric, Mahdavi-Kani, as interim prime minister. In a new round of elections on October 2, Hojjatoleslam Ali Khamenehi was elected president. Division within the leadership became apparent, however, when the Majlis rejected Khamenehi's nominee, Ali Akbar Velayati, as prime minister. On October 28, the Majlis elected Mir-Hosain Musavi, a protégé of the late Mohammad Beheshti, as prime minister. Although no group claimed responsibility for the bombings that had killed Iran's political leadership, the government blamed the Mojahedin for both. The Mojahedin did, however, claim responsibility for a spate of other assassinations that followed the overthrow of Bani Sadr. Among those killed in the space of a few months were the Friday prayer leaders in Tabriz, Kerman, Shiraz, Yazd, and Bakhtaran; a provincial governor; the warden of Evin Prison, the chief ideologue of the IRP; and several revolutionary court judges, Majlis deputies, minor government officials, and members of revolutionary organizations.

In September 1981, expecting to spark a general uprising, the Mojahedin sent their young followers into the streets to demonstrate against the government and to confront the authorities with their own armed contingents. On September 27, the Mojahedin used machine guns and rocket-propelled grenade launchers against units of the Pasdaran. Smaller left-wing opposition groups, including the Fadayan, attempted similar guerrilla activities. In July 1981, members of the Union of Communists tried to seize control of the Caspian town of Amol. At least seventy guerrillas and Pasdaran members were killed before the uprising was put down. The government responded to the armed challenge of the guerrilla groups by expanded use of the Pasdaran in counterintelligence activities and by widespread arrests, jailings, and executions. The executions were facilitated by a September 1981, Supreme Judicial Council circular to the revolutionary courts permitting death sentences for "active members" of guerrilla groups. Fifty executions a day became routine; there were days when more than 100 persons were executed. Amnesty International documented 2,946 executions in the 12 months following Bani Sadr's impeachment, a conservative figure because the authorities did not report all executions. The pace of executions slackened considerably at the end of 1982, partly as a result of a deliberate government decision but primarily because, by then, the back of the armed resistance movement had largely been broken. The radical opposition had, however, eliminated several key clerical leaders, exposed vulnerabilities in the state's security apparatus, and posed the threat, never realized, of sparking a wider opposition movement.

By moving quickly to hold new elections and to fill vacant posts, the government managed to maintain continuity in authority, however, and by repression and terror it was able to crush the guerrilla movements. By the end of 1983, key leaders of the Fadayan, Paykar (a Marxist-oriented splinter group of the Mojahedin), the Union of Communists, and the Mojahedin in Iran had been killed, thousands of the rank and file had been executed or were in prison, and the organizational structure of these movements was gravely weakened. Only the Mojahedin managed to survive, and even it had to transfer its main base of operations to Kordestan, and later to Kurdistan in Iraq, and its headquarters to Paris (see Antiregime Opposition Groups , ch. 5).

During this period, the government was also able to consolidate its position in Kordestan. Fighting had resumed between government forces and Kurdish rebels after the failure of talks under Bani Sadr in late 1980. The Kurds held parts of the countryside and were able to enter the major cities at will after dark. With its takeover of Bukan in November 1981, however, the government reasserted control over the major urban centers. Further campaigns in 1983 reduced rebel control over the countryside, and the Kurdish Democratic Party had to move its headquarters to Iraq, from which it made forays into Iran. The Kurdish movement was further weakened when differences between the Kurdish Democratic Party and the more radical Komala (Komala-ye Shureshgari-ye Zahmat Keshan-e Kordestan-e Iran, or Committee of the Revolutionary Toilers of Iranian Kordestan), a Kurdish Marxist guerrilla organization, resulted in open fighting in 1985. The government also moved against other active and potential opponents. In April 1982, the authorities arrested former Khomeini aide and foreign minister Qotbzadeh and charged him with plotting with military officers and clerics to kill Khomeini and to overthrow the state. Approximately 170 others, including 70 military men, were also arrested. The government implicated the respected religious leader Shariatmadari, whose son-in-law had allegedly served as the intermediary between Qotbzadeh and Shariatmadari. At his trial, Qotbzadeh denied any design on Khomeini's life and claimed he had wanted only to change the government, not to overthrow the Islamic Republic. Shariatmadari, in a television interview, said he had been told of the plot but did not actively support it. Qotbzadeh and the military men were executed, and Shariatmadari's son-in-law was jailed. In an unprecedented move, members of the Association of the Seminary Teachers of Qom voted to strip Shariatmadari of his title of marja-e taqlid (a jurist who is also an object of emulation). Shariatmadari's Center for Islamic Study and Publications was closed, and Shariatmadari was placed under virtual house arrest.

In June 1982, the authorities captured Qashqai leader Khosrow Qashqai, who had returned to Iran after the Revolution and had led his tribesmen in a local uprising. He was tried and publicly hanged in October.

All these moves to crush opposition to the Republic gave freer rein to the Pasdaran and revolutionary committees. Members of these organizations entered homes, made arrests, conducted searches, and confiscated goods at will. The government organized "Mobile Units of God's Vengeance" to patrol the streets and to impose Islamic dress and Islamic codes of behavior. Instructions issued by Khomeini in December 1981 and in August 1982 admonishing the revolutionary organizations to exercise proper care in entering homes and making arrests were ignored. "Manpower renewal" and "placement" committees in government ministries and offices resumed widescale purges in 1982, examining officeholders and job applicants on their beliefs and political inclinations. Applicants to universities and military academies were subjected to similar examinations.

By the end of 1982, the country experienced a reaction against the numerous executions and a widespread feeling of insecurity because of the arbitrary actions of the revolutionary organizations and the purge committees. The government saw that insecurity was also undermining economic confidence and exacerbating economic difficulties. Accordingly, in December 1982 Khomeini issued an eight-point decree prohibiting the revolutionary organizations from entering homes, making arrests, conducting searches, and confiscating property without legal authorization. He also banned unauthorized tapping of telephones, interference with citizens in the privacy of their homes, and unauthorized dismissals from the civil service. He urged the courts to conduct themselves so that the people felt their life, property, and honor were secure. The government appointed a follow-up committee to ensure adherence to Khomeini's decree, to look into the activities of the revolutionary organizations, and to hear public complaints against government officials. Some 300,000 complaints were filed within a few weeks. The follow-up committee was soon dissolved, but the decree nevertheless led to a marked decrease in executions, tempered the worst abuses of the Pasdaran and revolutionary committees, and brought a measure of security to individuals not engaged in opposition activity.

The December decree, however, implied no increased tolerance for the political opposition. The Tudeh had secured itself a measure of freedom during the first three years of the Revolution by declaring loyalty to Khomeini and supporting the clerics against liberal and left-wing opposition groups. But the government showed less tolerance for the party after the impeachment of Bani Sadr and the repression of left-wing guerrilla organizations. The party's position further deteriorated in 1982, as relations between Iran and the Soviet Union grew more strained over such issues as the war with Iraq and the Soviet presence in Afghanistan. The government began closing down Tudeh publications as early as June 1981, and in 1982 officials and senior clerics publicly branded the members of the Tudeh as agents of a foreign power.

In February 1983, the government arrested Tudeh leader Nureddin Kianuri, other members of the party Central Committee, and more than 1,000 party members. The party was proscribed, and Kianuri confessed on television to spying for the Soviet Union and to "espionage, deceit, and treason." Possibly because of Soviet intervention, none of the leading members of the party was brought to trial or executed, although the leaders remained in prison. Many rank and file members, however, were put to death. By 1983 Bazargan's IFM was the only political group outside the factions of the ruling hierarchy that was permitted any freedom of activity. Even this group was barely tolerated. For example, the party headquarters was attacked in 1983, and two party members were assaulted on the floor of the Majlis.

In 1984 Khomeini denounced the Hojjatiyyeh, a fundamentalist religious group that rejected the role assigned to the faqih under the Constitution. The organization, taking this attack as a warning, dissolved itself.

Iran

Concept of Neither East nor West

During the Revolution, Khomeini and his associates condemned both the United States and the Soviet Union as equally malevolent forces in international politics. They believed the United States, because of its close relationship with the regime of the shah, was the superpower that posed the most immediate danger to their revolution. Thus, they referred to the United States as the "Great Satan," a term that continued to be used in 1987. In contrast, they regarded the Soviet Union, because it had not been as closely involved with the shah, as the "Lesser Satan." The United States represented the West, or capitalism, while the Soviet Union represented the East, or socialism. The revolutionaries embraced Khomeini's view that these materialist ideologies were ploys to help maintain imperialist domination of the Third World, and thus they were inherently inimical to Islam. Consequently, a major foreign policy goal from the time of the Revolution has been to preclude all forms of political, economic, and cultural dependence on either Western capitalism or Eastern socialism and to rely solely upon Islam.

The most dramatic symbol of the revolutionary determination to assert independence of both the East and the West was the hostage crisis between Iran and the United States. Although the seizure of the American embassy in Tehran in November 1979 initially had been undertaken by nongovernmental groups to demonstrate their anger at the admission of the shah into the United States, this incident rapidly developed into a major international crisis when Khomeini and the Revolutionary Council gave their ex post facto sanction to it. The crisis lasted for 444 days, during which time those political leaders who were most hostile to Western influences used it to help achieve their aim of severing diplomatic and other ties between Tehran and Washington.

After 1980 Iran adopted positions opposed to those of the United States on a wide variety of international issues. Although officials in both countries eventually approved of some secret contacts, most notably those involving clandestine arms shipments to Iran from Israel and the United States during 1985 and 1986, the bitterness that the hostage crisis left on both sides made it difficult for either country to consider normalizing relations as late as the end of 1987.

The West European allies of the United States are also viewed with suspicion. France, in particular, has been singled out as a "mini-Satan" that collaborates with the United States in the oppression of Muslims. Although initially Iran's political elite were favorably disposed toward France because Paris had provided refuge to Khomeini when he was expelled from Iraq in 1978, relations between the two countries steadily deteriorated after 1980. Two issues have been the source of the Iranian hostility: France's support of Iraq, especially its provision of weapons, and the fact that since 1981 France has been the headquarters for most of the expatriate opposition groups. France and Iran also had opposing perspectives on several international issues, most notably developments in Lebanon. In the spring of 1986, the French government initiated a policy of trying to reduce tensions with the Islamic Republic. As part of this effort, France pressured the Mojahedin to close its Paris headquarters and agreed to repay the Iranian government part of a US$1 billion loan that had been extended to a French nuclear energy consortium during the reign of the shah. France was unwilling, however, to accede to Iran's demand that it cease arms sales to Iraq. Consequently, relations between Paris and Tehran vacillated between correctness and tension.

This was dramatically illustrated in July 1987, when the two countries became involved in a major diplomatic confrontation. The Iranian embassy in Paris provided haven to an Iranian national who had been summoned to appear in court in connection with a series of terrorist bombings in the French capital. Although France broke diplomatic relations with Iran over this issue and a series of related incidents, both countries seemed determined to salvage their rapprochement policy. In December France agreed to expel more Iranian Mojahedin activists and to repay Iran a second installment on its outstanding loan, in return for Iranian mediation efforts in obtaining the release of French citizens being held as hostages in Lebanon. Diplomatic relations were restored as of the end of 1987.

Iran's postrevolutionary relations with the Soviet Union and its allies have been significantly less dramatic. Tehran has expressed its opposition to numerous Soviet international policies. For example, Iran severely criticized the Soviet Union for dispatching its troops into Afghanistan at the end of 1979 and took the lead several months later in denouncing Moscow at a conference of foreign ministers of Islamic countries. Soviet support for the Marxist-Leninist regime in Kabul continued to be a source of friction between the two countries in 1987. Soviet support of Iraq, especially the provision of weapons, has been another area of contention between Moscow and Tehran. Iran also has accused the Soviet Union of assisting Iranian opposition groups, especially the Tudeh. Nevertheless, Iran and the Soviet Union have maintained diplomatic relations, and the two countries have striven to keep their relations correct, if not always cordial.

Although Iran remained distrustful of the Soviet Union's international policies, it generally avoided injecting its anti-imperialist ideology into economic relations. Thus, trade with the Soviet Union became relatively important after 1979. This included not only direct trade between Iran and the Soviet Union but also transit trade from Iran through the Soviet Union to markets in Europe. Tensions over economic matters continued, however, particularly over the issue of natural gas shipments to the Caucasus republics via the pipeline that had been constructed before the Revolution. When in 1980 Moscow resisted Tehran's attempt to raise the price charged for this natural gas, the pipeline was closed. In the summer of 1986, the two countries worked out a new agreement but as of December 1987 natural gas shipments had not been resumed.

II. THE JURISDICTION OF THE COURT AND THE NATURE
OF THE ISLAMIC REPUBLIC'S CLAIMS

Article 36 (1) of the Statute of the Court provides in the relevant part that the Court's jurisdiction

"comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force".

The Islamic Republic and the United States are both Members of the United Nations, and thus parties to the Statute which forms an integral part of the Charter (under Article 92 of the Charter).

With respect to the reference made in Article 36 (1) of the Statute to matters specially provided for in treaties and conventions in force, Iran and the United States are both parties to the Treaty of Amity, which has been in force throughout the period relevant to this dispute. Article XXI (2) of the Treaty of Amity provides:

"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." [A copy of the Treaty of Amity is attached to this Application.]

In the light of the facts recounted above, and as will be more fully developed in a subsequent stage of the proceedings, the Islamic Republic submits that the United States has breached both the letter and spirit of several provisions of the Treaty of Amity. In particular, the Islamic Republic's claims arise out of the following specific provisions of the Treaty of Amity:

(a) Article I of the Treaty, which provides that:

"There shall be firm and enduring peace and sincere friendship between the United States of America and Iran."

By its actions in assisting the Government of Iraq in its war efforts against Iran, in adopting a threatening and provocative position vis-à-vis Iran with the deployment of substantial naval and air forces just off the shores of the Islamic Republic, and in attacking and destroying Iranian entities and oil installations, the United States has breached the obligations set out in Article I of the Treaty.

(b) Article X (1 ) of the Treaty, which provides that:

"Between the territories of the two High Contracting Parties there shall he freedom of commerce and navigation."

By its actions in assisting the Government of Iraq in its war efforts, in threatening and provoking the Islamic Republic with the deployment of US forces in the region, and in attacking and destroying Iranian entities and the oil installations referred to here, the United States has gravely interfered with the commerce and navigation of the Islamic Republic and has thus violated the provisions of Article X (1) of the Treaty.

(c) In addition to the above, the actions of the United States taken against the Islamic Republic have violated the spirit and purpose of the Treaty.

The conduct calf the United States throughout the period referred to above demonstrates very clearly that there is a dispute between the Parties, and that such dispute unquestionably relates to the interpretation and application of the Treaty of Amity as to which the Islamic Republic maintains the United States has violated several key provisions [With respect to the compromissory clause of the Treaty of Amity, Article XXI (2), it is appropriate to bear in mind that the United States has previously stressed to this Court that the clause was purposely kept very broad "precisely because the United States wanted to avoid any narrowing of the jurisdictional provision". See, Memorial of the United States in the case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), I.C.J. Pleadings, p. 153, fn. 14.].

It is also apparent that the dispute is not one which has been satisfactorily adjusted by diplomacy. While Article XXI (2) of the Treaty of Amity does not provide that the failure of negotiation is a prerequisite to recourse to the Court, it is nonetheless clear that the positions of the Parties vis-à-vis the incidents are so diametrically opposed to each other that adjustment by diplomacy, even if the Parties enjoyed diplomatic relations which they do not, would have been neither practical nor possible.

In this connection, on 7 July 1992 the Director of the Islamic Republic's Bureau of International Legal Services raised the issue of the destruction of the platforms with his US counterpart, the Legal Adviser to the Department of State and, by declaring the readiness and willingness of the Government of the Islamic Republic of Iran to negotiate the dispute already defined under the provisions of the Treaty of Amity, sought compensation. After reverting to his Government for instructions, on 13 August 1992, the Legal Adviser to the Department of State responded that the United States was not willing to negotiate the issue. When on 15 October 1992 again the Islamic Republic raised the matter with the United States, the US Legal Adviser denied any possibility for its negotiation by his Government.

Accordingly, the Islamic Republic submits that the requirements of Article XXI (2) of the Treaty of Amity for submitting a dispute to the Court are fully met and that the Court therefore has jurisdiction to rule on the Islamic Republic's claims.

  

III. JUDGMENT REQUESTED

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 ease, the Islamic Republic respectfully requests the Court to adjudge and declare as follows:

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

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

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

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

(e) any other remedy the Court may deem appropriate.

The Government of the Islamic Republic of Iran has designated the undersigned as its Agent for the purposes of these proceedings. All communications relating to this case should be sent to the Agent Bureau of the Embassy of the Islamic Republic of Iran, Waldeck Pyrmontkade 872, 2518 JS The Hague.

Date 2 November 1992

Respectfully submitted,

(Signed) All H. NOBARI,

Agent of the Government of the
Islamic Republic of Iran.

__________

 

Attachment

[The following texts are taken from the United Nations,
Treaty Series, Vol. 284, pp. 93-137. [Note by the Registry]]

 

No. 4132

UNITED STATES OF AMERICA AND IRAN
TREATY OF AMITY, ECONOMIC RELATIONS,
AND CONSULAR RIGHTS.
SIGNED AT TEHRAN, ON 15 AUGUST 1955

 

Official texts: English and Persian*.

[*not reproduced on website]

Registered by the United States of America on 20 December 1957.

 

__________

  

No. 4132. TREATY OF AMITY, ECONOMIC RELATIONS, AND CONSULAR RIGHTS
BETWEEN THE UNITED STATES OF AMERICA
AND IRAN. SIGNED AT TEHRAN, ON 15 AUGUST 1955

[Came into force on 16 June 1957, one month after the day of exchange of the instruments of ratification at Tehran on 16 May 1957, in accordance with article XXIII.]

 

The United States of America and Iran, desirous of emphasizing the friendly relations which have long prevailed between their peoples, of reaffirming the high principles in the regulation of human affairs to which they are committed, of encouraging mutually beneficial trade and investments and closer economic intercourse generally between their peoples, and of regulating consular relations, have resolved to conclude, on the basis of reciprocal equality of treatment, a Treaty of Amity, Economic Relations, and Consular Rights, and have appointed as their Plenipotentiaries:

The President of the United States of America:

Mr. Selden Chapin, Ambassador Extraordinary and Plenipotentiary of the United States of America at Tehran; and

His Imperial Majesty, the Shah of Iran:

His Excellency Mr. Mostafa Samiy, Under Secretary of the Ministry of Foreign Affairs;

Who, having communicated to each other their full powers found to be in due form, have agreed upon the following articles:

Article I

There shall be firm and enduring peace and sincere friendship between the United States of America and Iran.

Article II

1. Nationals of either High Contracting Party shall be permitted, upon terms no less favorable than those accorded to nationals of any third country, to enter and remain in the territories of the other High Contracting Party for the purpose of carrying on trade between their own country and the territories of such other High Contracting Party and engaging in related commercial activities, and for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital.

2. Nationals of either High Contracting Party within the territories of the other High Contracting Party shall, either individually or through associations, and so long as their activities are not contrary to public order, safety or morals: (a) be permitted to travel therein freely and reside at places of their choice; (b) enjoy freedom of conscience and the right to hold religious services; (c) be permitted to engage in philanthropic, educational and scientific activities; and (d) have the right to gather and transmit information for dissemination to the public abroad, and otherwise to communicate with other persons inside and outside such territories. They shall also be permitted to engage in the practice of professions for which they have qualified under the applicable legal provisions governing admission to professions.

3. The provisions of paragraphs 1 and 2 of the present Article shall be subject to the right of either High Contracting Party to apply measures which are necessary to maintain public order, and to protect public health, morals and safety, including the right to expel, to exclude or to limit the movement of aliens on the said grounds.

4. Nationals of either High Contracting Party shall receive the most constant protection and security within the territories of the other High Contracting Party. When any such national is in custody, he shall in every respect receive reasonable and humane treatment; and, on his demand, the diplomatic or consular representative of his country shall without unnecessary delay be notified and accorded full opportunity to safeguard his interests He shall be promptly informed of the accusations against him, allowed all facilities reasonably necessary to his defense and given a prompt and impartial disposition of his case.

Article III

1. Companies constituted under the applicable laws and regulations of either High Contracting Party shall have their juridical status recognized within the territories of the other High Contracting Party. It is understood, however, that recognition of juridical status does not of itself confer rights upon companies to engage in the activities for which they are organized. As used in the present Treaty, " companies " means corporations, partnerships, companies and other associations, whether or not with limited liability and whether or not for pecuniary profit.

2. Nationals and companies of either High Contracting Party shall have freedom of access to the courts of justice and administrative agencies within the territories of the other High Contracting Party, in all degrees of jurisdiction, both in defense and pursuit of their rights, to the end that prompt and impartial justice be done. Such access shall be allowed, in any event, upon terms no less favorable than those applicable to nationals and companies of such other High Contracting Party or of any third country. It is understood that companies not engaged in activities within the country shall enjoy the right of such access without any requirement of registrar on or domestication.

3. The private settlement of disputes of a civil nature, involving nationals and companies of either High Contracting Party, shall not be discouraged within the territories of the other High Contracting Party; and, in cases of such settlement by arbitration, neither the alienage of the arbitrators nor the foreign situs of the arbitration proceedings shall of themselves be a bar to the enforceability of awards duly resulting therefrom.

Article IV

1. Each High Contracting Party shall at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws.

2. Property of nationals and companies of either High Contracting Party, including interests in property, shall receive the most constant protection and security within territories of the other High Contracting Party, in no case less than that required by international lain Such property shall not be taken except for a public purpose, nor shall it be taken without the prompt payment of just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof.

3. The dwellings, ounces, warehouses, factories and other premises of nationals and companies of either High Contracting Party located within the territories of the other High Contracting Party shall not be subject to entry or molestation without just cause. Official searches and examinations of such premises and their contents, shall be made only according to law and with careful regard for the convenience of the occupants and the conduct of business.

4. Enterprises which nationals and companies of either High Contracting Party are permitted to establish or acquire, within the territories of the other High Contracting Party, shall be permitted freely to conduct their activities therein, upon terms no less favorable than other enterprises of whatever nationality engaged in similar activities. Such nationals and companies shall enjoy the right to continued control and management of such enterprises; to engage attorneys, agents, accountants and other technical experts, executive personnel, interpreters and other specialized employees of their choice; and to do all other things necessary or incidental to the effective conduct of their affairs.

Article V

1. Nationals and companies of either High Contracting Party snail be permitted, within the territories of the other High Contracting Party: (a) to lease, for suitable periods of time, real property needed for their residence or for the conduct of activities pursuant to the present Treaty; (b) to purchase or otherwise acquire personal property of all kinds; and (c) to dispose of property of all kinds by sale, testament or otherwise. The treatment accorded in these respects shall in no event be less favorable than that accorded nationals and companies of any third country.

2. Upon compliance with the applicable laws and regulations respecting registration and other formalities, nationals and companies of either High Contracting Party shall be accorded within the territories of the other High Contracting Party effective protection in the exclusive use of inventions, trade marks and trade names.

Article VI

1. Nationals and companies of either High Contracting Party shall not be subject to the payment of taxes, fees or charges within the territories of the other High Contracting Party, or to requirements with respect to the levy and collection thereof, more burdensome than those borne by nationals, residents and companies of any third country. In the case of nationals of either High Contracting Party residing within the territories of the other High Contracting Party, and of nationals and companies of either High Contracting Party engaged in trade or other gainful pursuit or in non-profit activities therein, such payments and requirements shall not be more burdensome than those borne by nationals and companies of such other High Contracting Party.

2. Each High Contracting Party, however, reserves the right to: (a) extend specific tax advantages only on the basis of reciprocity, or pursuant to agreements for the avoidance of double taxation or the mutual protection of revenue; and (b) apply special requirements as to the exemptions of a personal nature allowed to non-residents in connection with income and inheritance taxes.

3. Companies of either High Contracting Party shall not be subject, within the territories of the other High Contracting Party, to taxes upon any income, transactions or capital not attributable to the operations and investment thereof within such territories.

Article VII

1. Neither High Contracting Party shall apply restrictions on the making of payments, remittances, and other transfers of funds to or from the territories of the other High Contracting Party, except (a) to the extent necessary to assure the availability of foreign exchange for payments for goods and services essential to the health and welfare of its people, or (b) in the case of a member of the International Monetary Fund, restrictions specifically approved by the Fund.

2. If either High Contracting Party applies exchange restrictions, it shall promptly make reasonable provision for the withdrawal, in foreign exchange in the currency of the other High Contracting Party, of: (a) the compensation referred to in Article 1V, paragraph 2, of the present Treaty, (b) earnings, whether in the form of salaries, interest, dividends, commissions, royalties, payments for technical services, or otherwise, and (c) amounts for amortization of loans, depreciation of direct investments and capital transfers, giving consideration to special needs for other transactions. If more than one rate of exchange is in force, the rate applicable to such withdrawals shall be a rate which is specifically approved by the International Monetary Fund for such transactions or, in the absence of a rate so approved, an effective rate which, inclusive of any taxes or surcharges on exchange transfers, is just and reasonable.

3. Either High Contracting Party applying exchange restrictions shall in general administer them in a manner not to influence disadvantageously the competitive position of the commerce, transport or investment of capital of the other High Contracting Party in comparison with the commerce, transport or investment of capital of any third country; and shall afford such other High Contracting Party adequate opportunity for consultation at any time regarding the application of the present Article.

Article VIII

1. Each High Contracting Party shall accord to products of the other High Contracting Party, from whatever place and by whatever type of carrier arriving, and to products destined for exportation to the territories of such other High Contracting Party, by whatever route and by whatever type of carrier, treatment no less favorable than that accorded like products of or destined for exportation to any third country, in all matters relating to: (a) duties, other charges, regulations and formalities, on or in connection with importation and exportation; and (b) internal taxation, sale, distribution, storage and use. The same rule shall apply with respect to the international transfer of payments for imports and exports.

2 Neither High Contracting Party shall impose restrictions or prohibitions on the importation of any product of the other High Contracting Party or on the exportation of any product to the territories of the other High Contracting Party, unless the importation of the like product of, or the exportation of the like product to, all third countries is similarly restricted or prohibited.

3. If either High Contracting Party imposes quantitative restrictions on the importation or exportation of any product in which the other High Contracting Party has an important interest:

(a) It shall as a general rule give prior public notice of the total amount of the product, by quantity or value, that may be imported or exported during a specified period, and of any change in such amount or period; and

(b) If it makes allotments to any third country, it shall afford such other High Contracting Party a share proportionate to the amount of the product, by quantity or value, supplied by or to it during a previous representative period? due consideration being given to any special factors affecting the trade in such product.

4. Either High Contracting Party may impose prohibitions or restrictions on sanitary or other customary grounds of a non-commercial nature, or in the interest of preventing deceptive or unfair practices, provided such prohibitions or restrictions do not arbitrarily discriminate against the commerce of the other High Contracting Party.

5. Either High Contracting Party may adopt measures necessary to assure the utilization of accumulated inconvertible currencies or to deal with a stringency of foreign exchange. However, such measures shall deviate no more than necessary from a policy designed to promote the maximum development of non-discriminatory multilateral tirade and to expedite the attainment of a balance-of-payments position which will obviate the necessity of such measures.

6. Each High Contracting Party reserves the right to accord special advantages: (a) to products of its national fisheries, (b) to adjacent countries in order to facilitate frontier tragic, or (c) by virtue of a customs union or free trade area of which either High Contracting Party, after consultation with the other High Contracting Party, may become a member. Each High Contracting Party, moreover, reserves rights and obligations it may have under the General Agreement on Tariffs and Trade [See United Nations, Treaty Series, Vol. 284, p. 76, footnote 2.], and special advantages it may accord pursuant thereto.

Article IX

1. In the administration of its customs regulations and procedures, each High Contracting Party shall: (a) promptly publish all requirements of general application affecting importation and exportation; (b) apply such requirements in a uniform, impartial and reasonable manner; (c) refrain, as a general practice, from enforcing new or more burdensome requirements until after public notice thereof; (d) provide an appeals procedure by which prompt and impartial review of administrative action in customs matters can be obtained; and (e) not impose greater than nominal penalties for infractions resulting front clerical errors or from mistakes made in good faith.

2. Nationals and companies of either High Contracting Party shall be accorded treatment no less favorable than that accorded nationals and companies of the other High Contracting Party, or of any third country, with respect to all matters relating to importation and exportation.

3. Neither High Contracting Party shall impose any measure of a discriminatory nature that hinders or prevents the importer or exporter of products of either country from obtaining marine insurance on such products in companies of either High Contracting Party.

Article X

1. Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.

2. Vessels under the flag of either High Contracting Party, and carrying the papers required by its law in proof of nationality, shall be deemed to he vessels of that High Contracting Party both on the high seas and within the ports, places and waters of the other High Contracting Party.

3. Vessels of either High Contracting Party shall have liberty, on equal terms with vessels of the other High Contracting Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other High Contracting Party open to foreign commerce and navigation. Such vessels and cargoes shall in all respects be accorded national treatment and most-favored-nation treatment within the ports, places and Raters of such other High Contracting Party; but each High Contracting Party may reserve exclusive rights and privileges to its own vessels with respect to the coasting trade, inland navigation and national fisheries.

4. Vessels of either High Contracting Party shall be accorded national treatment and most-favored-nation treatment by the other High Contracting Party with respect to the right to carry all products that may be carried by vessel to or from the territories of such other High Contracting Party; and such products shall be accorded treatment no less favorable than that accorded like products carried in vessels of such other High Contracting Party, with respect to: (a) duties and charges of all kinds, (b) the administration of the customs, and (c) bounties, drawbacks and other privileges of this nature.

5. Vessels of either High Contracting Party that are in distress shall be permitted to take refuge in the nearest port or haven of the other High Contracting Party, and shall receive friendly treatment and assistance.

6. The term "vessels", as used herein, means all types of vessels, whether privately owned or operated, or publicly owned or operated; but this term does not, except with reference to paragraphs 2 and 5 of the present Article, include fishing vessels or vessels of war.

Article XI

1. Each High Contracting Party undertakes (a) that enterprises owned or controlled by its Government, and that monopolies or agencies granted exclusive or special privileges within its territories, shall make their purchases and sales involving either imports or exports affecting the commerce of the other High Contracting Party solely in accordance with commercial considerations, including price, quality, availability, marketability, transportation and other conditions of purchase or sale; and (b) that the nationals, companies and commerce of such other High Contracting Party shall be afforded adequate opportunity, in accordance with customary business practice, to compete for participation in such purchases and sales.

2. Each High Contracting Party shall accord to the nationals, companies and commerce of the other High Contracting Party fair and equitable treatment, as compared with that accorded to the nationals, companies and commerce of any third country, with respect to: (a) the governmental purchase of supplies, (b) the awarding of government contracts, and (c) the sale of any service sold by the Government or by any monopoly or agency granted exclusive or special privileges.

3. The High Contracting Parties recognize that conditions of competitive equality should be maintained in situations in which publicly owned or controlled trading or manufacturing enterprises of either High Contracting Party engage in competition, within the territories thereof, with privately owned and controlled enterprises of nationals and companies of the other High Contracting Party. Accordingly, such private enterprises shall, in such situations, be entitled to the benefit of any special advantages of an economic nature accorded such public enterprises, whether in the nature of subsidies, tax exemptions or otherwise. The foregoing rule shall not apply, however, to special advantages given in connection with: (a) manufacturing goods for government use, or supplying goods and services to the Government for government use; or (b) supplying at prices substantially below competitive prices, the needs of particular population groups for essential goods and services not otherwise practically obtainable by such groups.

4. No enterprise of either High Contracting Party, including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, industrial, shipping or other business activities within the territories of the other High Contracting Party, claim or enjoy, either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject therein.

Article XII

Each High Contracting Party shall have the right to send to the other High Contracting Party consular representatives, who, having presented their credentials and having been recognized in a consular capacity, shall be provided, free of charge, with exequaturs or other authorization.

Article XIII

1. Consular representatives of each High Contracting Party shall be permitted to reside in the territory of the other High Contracting Party at the places where consular officers of any third country are permitted to reside and at other places by consent of the other High Contracting Party. Consular Officers and employees shall enjoy the privileges and immunities accorded to officers and employees of their rank or status by general international usage and shall be permitted to exercise all functions which are in accordance with such usage; in any event they shall be treated, subject to reciprocity, in a manner no less favorable than similar officers and employees of any third country.

2. The consular offices shall not be entered by the police or other local authorities without the consent of the consular officer, except that in the case of fire or other disaster, or if the local authorities have probable cause to believe that a crime of violence has been or is about to be committed in the consular office, consent to entry shall be presumed. In no case shall they examine or seize the papers there deposited.

Article XIV

1. All furniture, equipment and supplies consigned to or withdrawn from customs custody for a consular or diplomatic office of either High Contracting Party for official use shall be exempt within the territories of the other High Contracting Party from all customs duties and internal revenue or other taxes imposed upon or by reason of importation.

2. The baggage, effects and other articles imported exclusively for the personal use of consular officers and diplomatic and consular employees and members of their families residing with them, who are nationals of the sending state and are not engaged in any private occupation for gain in the territories of the receiving state, shall be exempt from all customs duties and internal revenue or other taxes imposed upon or by reason of importation. Such exemptions shall be granted with respect to the property accompanying the person entitled thereto on first arrival and on subsequent arrivals, and to that consigned to such officers and employees during the period in which they continue in status.

3. It is understood, however, that; (a) paragraph 2 of the present Article shall apply as to consular officers and diplomatic and consular employees only when their names have been communicated to the appropriate authorities of the receiving state and they have been duly recognized in their official capacity; (b) in the case of consignments, either High Contracting Party may, as a condition to the granting of exemption, require that a notification of any such consignment be given, in a prescribed manner; and (c) nothing herein authorizes importations specifically prohibited by law,

Article XV

1. The Government of either High Contracting Party may, in the territory of the other, acquire, own, lease for any period of time, or otherwise hold and occupy, such lands, buildings, and appurtenances as may be necessary and appropriate for governmental, other than military, purposes. If under the local law the permission of the local authorities must be obtained as a prerequisite to any such acquiring or holding, such permission shall be given on request.

2. Lands and buildings situated in the territories of either High Contracting Party, of which the other High Contracting Party is the legal or equitable owner and which are used exclusively for governmental purposes by that owner, shall be exempt from taxation of every kind, national, state, provincial and municipal, other than assessments levied for services or local public improvements by which the premises are benefited.

Article XVI

1. No tax or other similar charge of any kind, whether of a national, state, provincial, or municipal nature, shall be levied or collected the territories of the receiving state in respect of the official emoluments, salaries, wages or allowances received (a) by a consular officer of the sending state as compensation for his consular services, or (b) by a consular employee thereof as compensation for his services at a consulate. Likewise, consular officers and employees, who are permanent employees of the sending state and are not engaged in private occupation for gain within the territories of the receiving state, shall be exempt from all taxes or other similar charges, the legal incidence of which would otherwise fall upon such officers or employees.

2. The preceding paragraph shall not apply in respect of taxes and other similar charges upon: (a) the ownership or occupation of immovable property situated within the territories of the receiving state; (b) income derived from sources within such territories (except the compensation mentioned in the preceding paragraph); or (e) the passing of property at death.

3. The provisions of the present Article shall have like application to diplomatic offers and employees, who shall in addition be accorded all exemptions allowed them under general international usage

Article XVII

The exemptions provided for in Articles XIV and XVI shall not apply to nationals of the sending state who are also nationals of the receiving state, or to any other person who is a national of the receiving state, nor to persons having immigrant status who have been lawfully admitted for permanent residence in the receiving state,

Article XVIII

Consular officers and employees are not subject to local jurisdiction for acts done in their official character and within the scope of their authority No consular offer or employee shall be required to present his official files before the courts or to make declaration with respect to their contents.

Article XIX

A consular officer shall have the right within his district to: (a) interview, communicate with, assist and advise any national of the sending state; (b) inquire into any incidents which have occurred affecting the interests of any such national; and (e) assist any such