1998

ICJ

Case concerning oil platforms Iran v US Counterclaim

1987 October 1988 April, US destroyed three offshore oil production complexes. Iran argued such acts as violation of Treaty of Amity, 1955 and of IL. Art XXI such treaty basis of jurisdiction. 1993, June 8 Iran Memorial 1993, June 13 US preliminary objection to jurisdiction 1993, 16 December court asserted its jurisdiction. The court founded jurisdiction under art X, 1955 Treaty, which said ‘between the territories of the two high contracting parties there shall be freedom of commerce and navigation’, commerce is not merely act of purchase and sale, but also the ancillary activities integrally related to commerce … the 1955 Treaty does not speak of protecting commerce, but freedom of commerce, any act which would impede freedom is thereby prohibited. 1997, June 23 US Counter memorial / counter claim asking the court to declare: 1. Attacking the vessels, laying mines in the gulf and engaging in military actions in 1987-88 detrimental to commerce, Iran breached its obligation under Treaty of Amity and 2. it has to make full reparation 1997, November 18, Iran asked for hearing to the counterclaim. The present order was given w/o them. Iran argued that US counter claim was not sufficiently specific for the court to be able to determine whether it is directly connected with the principal claim, it just stated unspecified Iranian interference with unspecified maritime trade between the US and Iran Iran argued that state responding to counterclaim is in significant disadvantage since it is apparently confined to a single written pleading, the US claim in respect 1987-1988 covers a series of incidents with respect to which Iran has important additional claims of its own; besides, if the case were widened in the way proposed by the US it could prejudice 3rd states interests, since while in new cases the ICJ has to notify to 3rd states, in counter claim not. US argued that counter claim must be connected to the subject matter of the claim, not to the claim itself. A counter claim need not be a mirror of the claim or rest upon precisely the same theory of facts, but it has to be sufficiently linked to the facts or circumstances given rise to the claim to enable the court to address both in a single proceeding. Facts and circumstances that caused the US to engage Iran’s platforms are the heart of the US defence to Iran’s claims, the same facts and circumstances are likewise the basis of the US counterclaim

Court cited Bosnia: the respondent cannot use a counter claim to refer a dispute which exceeds the limits of its jurisdiction as recognised by the parties, or impose on the applicant any claim it chooses, at risk of infringement the applicant rights and of compromising the proper administration of justice, for this reasons it is necessary that the counter claim ‘comes within jurisdiction ICJ’ + ‘directly connected w/subject matter of claim’ Whereas the court has founded jurisdiction in the case. Since the rules does not define directly connected, it is for the ICJ to determine if a counter claim is sufficiently connected to the principal claim, and the degree of connection must be assessed both in fact and law. The claims rest on facts of the nature, they form part of the same factual complex since the facts relied on the Gulf during the same period, US intends to rely on the same facts to refute allegation of Iran and to obtain judgment against it. The claims of the two parties pursue the same legal aim, establish legal responsibility for violation of the 1955 Treaty. So the counter claim is directly connected to the subject matter of the claims of Iran. Oda (separate opinion): an applicant state will be severely prejudiced if the scope of the issues, in the respondent state’s counter claim is broadened beyond the original contention in the claim of the applicant State. While an applicant state is not itself allowed to bring additional claims, why them may a respondent state to be permitted to bring a new claim if this (counter-) claim is not directly connected with the subject matter of the applicant’s claim? Higgins (separate opinion): A defendant seeking to bring a counter claims must show that the court has jurisdiction to pronounce upon them, but it is not essential that the basis of jurisdiction of the claim and the counter claim be identical, it is sufficient that there is jurisdiction. The counter claim must ‘come within the jurisdiction of the court’ not ‘within the jurisdiction established by the court in respect of the claims of the applicant’. Of course the requirement of direct connection with the subject matter of the claim is likely to bring a counter claim into the same general jurisdiction area. Then cited Bosnia: the respondent cannot use a counter claim to refer a dispute which exceeds the limits of its jurisdiction as recognised by the parties. What matters is the jurisdiction mutually recognised by the parties under the treaty, not the jurisdiction established by the ICJ in respect of particular facts initially alleged by the claimant If arguendo, if US could still bring a claim de novo (presenting a new claim) even if it is not allowed to do so as counter-claim under the court’s order, such result is hardly consistent with the stated purpose of counterclaims, namely, convenience of court management [what about the purpose of being a ‘counter’ ‘defense’] [the word ‘reconventionnelle’ arose from ius canonical, where the plaintiff and the respondent had mutual debts against each other, ius canonical admitted independently of the cause of action, it could be connected or independent of the same legal document or title]