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III. The International Court of Justice
3.12. Counter-Claim

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

[p. 203] 31. Whereas, having regard to Article 80, paragraph 3, of its Rules, and having received detailed written observations from each of the Parties, the Court is sufficiently well informed of the positions they hold with regard to the admissibility of the claims presented as counter-claims by the United States; and whereas, accordingly, it does not appear necessary to hear the Parties further on the subject;

[p. 204-205] 34. Whereas the Court has found, in its Judgment of 12 December 1996, that its jurisdiction in the present case covers claims made under Article X, paragraph 1, of the 1955 Treaty, which is worded as follows: "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation";

35. Whereas, in its Judgment of 12 December 1996, the Court indicated, inter alia,

"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" (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 819, para. 49).

and whereas it added that:

"Article X, paragraph 1, of the Treaty of 1955 does not strictly speaking protect 'commerce' but 'freedom of commerce'. Any act which would impede that 'freedom', is thereby prohibited. Unless such freedom is to be rendered illusory, the possibility must be 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 their storage with a view to export" (ibid., para. 50);

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

37. Whereas the Rules of Court do not define what is meant by "directly connected"; whereas it is for the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and in law;

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

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

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

[p. 205-206] 41. Whereas a decision given on the admissibility of a counter-claim taking account of the requirements set out in Article 80 of the Rules in no way prejudges any question which the Court will be called upon to hear during the remainder of the proceedings;

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

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

44. Whereas, during the meeting which the Vice-President of the Court held on 17 October 1997 with the Agents of the Parties (see paragraph 7 above), the Agents envisaged a new exchange of written pleadings on the merits; and whereas the Agent of Iran, when asked about the time his Government would need in order to present a Reply, if such proved necessary, indicated that, without prejudice to the question of whether that pleading should also cover the counter-claim, a time-limit of one year as from the date of filing of the Counter-Memorial would seem necessary to reply to it; and whereas at the end of its written observations (see paragraphs 21 et seq. above), the United States expressed itself as follows in that connection:

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

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

[pp. 218-219 S.O. Higgins] In both civil and common law domestic systems, as in the Rules of the Court, a defendant seeking to bring a counter-claim must show that the Court has jurisdiction to pronounce upon them. But it is not essential that the basis of jurisdiction in the claim and in the counter-claim be identical. It is sufficient that there is jurisdiction. (Indeed, were it otherwise, counter-claims in, for example, tort could never be brought, as they routinely are, to actions initiated in contract.)

There is nothing in the Rules or practice of the Court to suggest that the very identical jurisdictional nexus must be established by a counterclaimant. The travaux préparatoires to the various formulations of what is now Article 80 of the Rules of Court contain no suggestion whatever that this was thought of as a requirement. The rule on counter-claims has gone through successive changes. But neither in the discussions of 1922, nor of 1934, 1935, 1936, nor again of 1946, 1968, 1970, 1972, does this thought anywhere appear.

Attention was focused on the one hand on the required "connection" and on the other on certain matters relating to jurisdiction, notably (in 1922) whether counter-claims were limited to compulsory jurisdiction cases and whether objections to counter-claim jurisdiction would be allowed. At no stage was it even proposed, much less accepted, that the jurisdictional basis for the claim and counter-claim must be identical.
Nor does the wording of Article 80, paragraph 1, suggest this. It requires that a counter-claim "comes within the jurisdiction of the Court" not that it "was within the jurisdiction established by the Court in respect of the claims of the applicant".

Of course, the very requirement of a direct connection with the subject-matter of the claim is likely to bring a counter-claimant into the same general jurisdictional area, i.e., the same treaty may well form the basis of the claimed jurisdiction for the bringing of a counter-claim.

[p. 222 S.O. Higgins] Paragraph 1 of Article 80 contains two requirements for counter-claims to be admissible - that they have a direct connection with the subject-matter of the claim and that they come within the jurisdiction of the Court. Paragraph 3 of Article 80 provides that the Court shall hear the parties "In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party." No provision is made to hear the parties in the event of doubt as to whether the counter-claim comes within the jurisdiction of the Court. It might be thought that this was perhaps deliberate, and that the intention was that the Court would resolve any doubts as to its jurisdiction only when it got to the merits. This would be a sort of standing exception to Article 79, paragraph 6, of the Rules (or, put differently, a counter-claim where jurisdiction is contested would always and necessarily be treated as not having an exclusively preliminary character under Article 79, paragraph 7). In any event, the idea that "direct connection" within the meaning of Article 80, paragraph 1, should be disposed of as a preliminary matter, while the jurisdiction requirement in Article 80, paragraph 1, should be dealt with on the merits finds no support at all in the travaux préparatoires of the various versions of the Rules, including the present Rules. The failure of Article 80, paragraph 3, to "match" Article 80, paragraph 1, seems to have been inadvertent and there was no intention to distinguish between objections relating to "connection", and those to "jurisdiction".

[p. 234 D.O. Rigaux] The reasoning at the basis of the Order, whose main operative provision I found myself unable to support, is directly inspired by the Order of I 17 December 1997 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Many of the recitals in the present Order reproduce verbatim the terms of the Order of 17 December 1997. The force of res judicata, which is beyond dispute, or even the relative force of a case already adjudicated between other parties, is not undermined by the observation that the doctrine of precedent includes the art of distinguishing between one case and another submitted to the same court in turn. What the present Order asserts in relation to "direct connection", namely "whereas it is for the Court, in its sole discretion, to assess ... taking account of the particular aspects of each case" the existence of a sufficient link between the two claims, applies equally to the application of Article 80, paragraph 3, of the Rules: is there doubt about such a link? It would therefore have been appropriate for the Court to ascertain how far "the particular aspects" of the present case would have warranted a departure by it from the previous decision without in any way undermining the force of the decision as a precedent. In the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide the facts forming the subject-matter of the respective claims of the two Parties were of the same kind (accusation of the crime of genocide) and had occurred in the same territory during the same period. In the present case too, but to a lesser extent, there is unity of time and place but not unity of action: the deliberate destruction of oil platforms, immobilized in the middle of the Persian Gulf, is quite different from the laying of mines and attacks on ships sailing in other parts of the Gulf. Hence, there are serious reasons for doubting the apparent connection between these two series of facts. The Court could therefore have accommodated Iran's claim that the reply to this question should form the subject-matter of adversarial oral proceedings.

Although, as the Court decided, it was sufficiently well informed by the written observations exchanged between the Parties, it was not immediately seised either of the question whether the direct connection was established, or whether the very varied claims made in the Counter-Memorial of the United States all met this condition and the condition of its jurisdiction. Admittedly, the terms in which the Court affirmed its jurisdiction in paragraph 36 in reality leave this question open, since only a detailed examination of each of the claims formulated by the United States is able to provide a reply to this question, as well as to the question of the sufficiency of the connection between each of these claims and the principal one. The summary examination undertaken by the Court during a purely procedural phase, when it had dispensed with an adversarial oral hearing of the Parties, does not make it possible to rule with certainty on whether all the counter-claims meet the substantive conditions in Article 80, paragraph 1, even though there is no doubt that they meet the formal condition in paragraph 2.