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Aerial Incident of 3 July 1988 Affaire De L'incident Aerien INTERNATIONAL COURT OF JUSTICE PLEADINGS, ORAL ARGUMENTS, DOCUMENTS CASE CONCERNING THE AERIAL INCIDENT OF 3 JULY 1988 (ISLAMIC REPUBLIC OF IRAN v.. UNITED STATES OF AMERICA) VOLUME II COUR INTERNATIONALE DE JUSTICE MEMOIRES, PLAIDOIRIES ET DOCUMENTS AFFAIRE DE L'INCIDENT AERIEN DU 3 JUILLET 1988 (RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS D'AMERIQUE) VOLUME II The case conceming the Aerial Incident of 3 July 1988 (Islamic Republic of Iran V. United States of America), entered on the Court's General List on 17 May 1989 under Number 79, was removed from the List by an Order of the Court of 22 February 1996, following discontinuance by agreement of the Par- ties (Aerial Incident of 3 July 1988 (Islamic Republic of Iran V. United States of America), 1. Cl Reports 1996, p. 9). The pleadings in the case are being published in the following order: Volume 1. Application instituting proceedings of the Islamic Republic of Iran; Memorial of the Islamic Republic of Iran. Volume II. Preliminary objections of the United States of America; Observa- tions and submissions of the Islamic Republic of Iran on the preliminary objections; Observations of the International Civil Aviation Organization; selection of correspondence; SettIement Agreement. Regarding the reproduction of case files, the Court has decided that hence- forth, irrespective of the stage at which a case has terminated, publication should be confined to the wntten proceedings and oral arguments in the case, together with those documents, annexes and correspondence considered essential to illus- trate its decision. The Court has also specifically requested that, whenever tech- nical1y feasible, the volumes should consist of facsimile versions of the docu- ments submitted to it, in the form in which they were produced by the parties. Accordingly, certain documents reproduced in the present volume have been photographed from their original presentation. For ease of use, in addition to the normal continuous pagination, wherever necessary this volume also contains, between square brackets on the inner margin of the pages, the original pagination of the documents reproduced. It is to this pagination within square brackets that one should refer for al1 cross- references within the texts thus published. Neither the typography nor the presentation may be used for the purpose of interpreting the texts reproduced. The Hague, 2000. L'affaire de l'lncidenl aérien du 3 juiflet 1988 (République islamique d'Iran c. Efafs-Unisd'Amérique), inscrite au rôle général de la Cour sous le numéro 79 le 17 mai 1989, en a été rayée par ordonnance de la Cour du 22 février 1996 à la suite du désistement par accord des Parties (Incident aérien du 3 juillet 1988 (République islurnique d'Iran c Efafs-Unis d'Amérique), CI.1 Recueil 1996, P 9). Les piéces de procédure écrite relatives à cette affaire sont publiées dans l'ordre suivant : Volume 1. Requête introductive d'instance de la République islamique d'Iran; mémoire de la République islamique d'Iran. Volume II. Exceptions préliminaires des Etats-Unis d'Amérique; observations et conclusions de la République islamique d'Iran sur 1es exceptions prélimi- naires ; observations de l'organisation de l'aviation civile internationale ; choix de correspondance; arrangement amiable. Au sujet de la reproduction des dossiers, la Cour a décidé que dorénavant, quel que soit le stade auquel aura pris fin une affaire, ne devront être retenus à fin de publication que les pièces de procédure écrite et les comptes rendus des audiences publiques, ainsi que les seuls documents, annexes et correspondance considérés comme essentiels à l'illustration de la décision qu'elle aura prise. En outre, la Cour a demandé expressément que, chaque fois que les moyens tech- niques le permettraient, les volumes soient composés de facsimilés des pièces déposées devant elle, en l'état ou elles ont été produites par les Parties. De ce fait, certaines des pièces reproduites dans la présente édition ont été photographiées d'après leur présentation originale. En vue de faciliter l'utilisation de l'ouvrage, outre sa pagination continue habi- tuelle, le présent volume comporte, en tant que de besoin, entre crochets sur le bord intérieur des pages, l'indication de la pagination originale des pièces repro- duites. C'est à ces références entre crochets qu'il faudra se reporter lors de tout renvoi se trouvant dans les textes ainsi publiés. Ni la typographie ni la présentation ne sauraient être utilisées aux fins de l'in- terprétation des textes reproduits. La Haye, 2000. CONTENTS - TABLE DES MATIERES Page Preliminary Objections Submitted by the United States of America - Exceptions préliminaires présentées par les EtatFUnis d'Amérique INTRODUCTIONAND SUMMARY....................... PART 1. STATEMENTOF FA~TS RELEVANT TO JURISDICTION ....... Chapter 1. Iranian attacks on merchant shipping during the Iran-Iraq war threatened the freedorn of navigation and prompted the deploy- ment of military forces by vanous nations to the Gulf ........ Chapter II. On 3 July 1988, Iranian gunboats and U.S. naval vessels were engaged in combat when an unidentified Iranian aircraft rapidly approached the U.S. vessels and, upon failure to respond to repeated radio wamings, was shot down ..................... Chapter III. Once it became known that the aircraft shot down was a civilian airliner, the United States investigated the incident with a view to preventing such tragedies in the future and sought to cornpensate the families of the victims, while Iran immediately sought poIitical condemnation of the United States by the United Nations and the International Civil Aviation Organization (ICAO) .................................... Section 1. The United States immediately announced its intention to compensate the families of the victims of Iran Air Flight 655 while at the same time investigating the incident and taking steps to avoid its recurrence .......................... Section II. The Government of Iran did not approach the United States either directly or indirectly, but rather immediately sought political condemnation of the United States by the United Nations andICAO ............................... Section III. The ICAO Council resolved to undertake an investiga- tion of the incident for the purpose of taking steps to ensure safety of civil aviation ............................ Chapter IV. Iran, unsatisfied with the response of ICAO and the United Nations to the incident, filed suit before this Court on 17May1989 ............................... PART 11. THE COURTHAS AUTHORITYIN THESEPRELIMINARY PRO- CEEDINGS TO UPHOLD THE OBJECTIONS OF THE UNITED STATESTO THE COURT'SSURISDICTION ....................... PART111. THECOURT DOES NOT HAVE JURISDICTION UNDER ARTICLE84 OF THE CHICAGOCONVENTION ON INTERNATIONAL CIVILAVIA- TION ..................................... Chapter 1. The Chicago Convention and the ICAO Rules clearly distin- guish between the ICAO Council's quasi-judicial functions under Article 84 (for which there is a possibility of appeal to the Court) and X CONTENTS - TABLE DES MATIÈRES Page its functions under other Articles regarding the irnplementation of the Convention (for which no review by the Court is provided) ... 94 Section 1. The ICAO Council, acting under Articles of the Chicago Convention othen than Article 84, has the power and obligation to deal with a broad range of potentially contentious aviation rnatters involving the application of the Convention, without possibility of review by the Court .......................... Section II. In carrying out its Article 84 functions, ICAO has devel- oped detailed rules for the settlement of differences, which are the exclusive basis for bringing Article 84 disputes before the Council ................................. Section III. The ICAO Rules provide essentiaf protections to Con- tracting States and to ICA0 as an Organization .......... Chapter II. The 17 March 1989 Resolution of the ICAO Council was not a decision of the Council within the meaning of Article 84 of the Chicago Convention ........................... Section 1. Iran did not invoke or otherwise rely on Article 84 of the Convention in bringing the incident of 3 July 1988 before the ICA0 Council ............................. Section II. Throughout the ICAO Council proceedings, neither Iran nor the ICAO Council acted under the longstanding and exclusive procedures prescribed for the consideration and decision of disputes under Article 84 of the Convention ............ Section III. The conclusion that this was not an Article 84 dispute has been confirrned by ICA0 .................... Chapter III. Iran's attempt to evade the clear provisions of the Chicago Convention would be highly prejudicial to the proper functioning of ICA0 ................................... Section 1. The respect due a coordinate body of the United Nations obliges the Court to reject Iran's clairns ............... Section II. The "supervisory role" of the Court should not be used in the manner suggested by Iran ................... Section III. The decision requested of this Court by Iran would frus- trate the dispute-settlement regirne established in the Chicago Con- vention and by ICAO, and wouid threaten the institutional intregnty of ICA0 .......................... PARTIV THECOURT DOES NOT HAVEJURISDICTION UNDER ARTICLE14 OF THE 1971 MONTREALCONVENTION FOR THE SUPPRESSION OF UNLAWFULACTS AGAlNST THE SAFETYOF CIVILAVIATION ..... Chapter 1. Iran has failed to satisfy the requirement that it seek to negotiate or to arbitrate
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