1979 through the date of the filing of this Memorial the Government of Iran has made it continuously clear that it has no interest whatever in the remedies contemplated by Articles II and III of the Optional Protocols, and in such circumstances Iran could scarcely be heard to argue that the Court is without jurisdiction because the United States failed to give Iran an opportunity to pursue a remedy in which it has admittedly had no interest at any time.

Moreover, Iran's refusal to consider conciliation or arbitrationor negotiation, enquiry, judicial settlement, or other peaceful means of the parties' choice-conflicts with its obligation under Articles 2(3) and 33 of the United Nations Charter, namely, to settle disputes by peaceful means. The holding of the Permanent Court of International Justice in the Chorzów Factory case accordingly is in point:

It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him. (Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9. p. 31.)

To hold that in the instant circumstances an application filed before the expiration of the two-month period is premature would be to adopt an interpretation which rewards unlawful coercion and penalizes respect for the procedures of peaceful settlement.

12 Two days later, Iran received direct, written notice by means of a communication to the President of the Security Council, circulated to all United Nations Members. On 9 November 1979, the Permanent Representative of the United States of America to the United Nations addressed the following letter to the President of the Security Council:

"On 4 November 1979, the American Embassy in Tehran was occupied and the American diplomatic personnel on its premises were taken and held by a group of Iranians. All efforts to secure their release, including an offer of discussions with emissaries, have so far been unavailing.

This action and the support it has received strike at the fundamental norms by which States maintain communication and violate the very basis for the maintenance of international peace and security and of comity between States. We consequently request that the Security Council urgently consider what might be done to secure the release of the diplomatic personnel being held and to restore the sanctity of diplomatic personnel and establishments." (U.N. Doc. S/13615.)

Ibid., pp. 149-151.

In point (7) of Part III.A the United States presented the argument that, even if its Application had been premature, the "temporary defect" had been cured by the lapse of time.

Subpart B of Part III of the Memorial discussed the grounds for the Court's jurisdiction under the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, and Subpart C of Part III, the grounds for its jurisdiction under the 1973 (New York) Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. Subpart D of Part III summed up the United States argument that the Court had jurisdiction to grant the relief sought.

Chapter 14

LEGAL REGULATION OF USE OF FORCE

§1 Resort to War and Armed Force

Persian Gulf

Regional Security

On December 25 and 26, 1979, the Soviet Union invaded Afghanistan, an action which, among other things, precipitated a review of United States policy toward the Persian Gulf/Indian Ocean/South West Asia region. In his State of the Union address to the Congress on January 23, 1980, the President stated:

Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.

We've increased and strengthened our naval presence in the Indian Ocean, and we are now making arrangements for key naval and air facilities to be used by our forces in the region of northeast Africa and the Persian Gulf.

Public Papers of the Presidents: Jimmy Carter, 1980-81, Bk. I (1981), pp. 197-198; Dept. of State Bulletin, Vol. 80, No. 2035, Feb. 1980, pp. Special A, B.

When hostilities between North and South Yemen escalated in Feb. 1979, President Carter had ordered the carrier task force Constellation to move from the Far East into the Indian Ocean to serve as testimony of United States interest in the security and integrity of the Arabian Peninsula, and particularly Saudi Arabia. On Nov. 20, 1979, the President ordered a second naval task force, including the aircraft carrier Kitty Hawk, from station at Subic Bay in the Republic of the Philippines into the Indian Ocean. See the 1979 Digest, pp. 54, 612. The two aircraft carrier task forces and supporting ships totalled twenty-one vessels by Dec. 1979.

In an address before the Business Council on Dec. 12, 1979, the President had outlined plans for the United States to counterbalance the growing ability of the Soviet Union to use its military power in Third World regions, as well as to deal with hostile actions from others against United States citizens or United States vital interests. The President stated that his five-year defense program and his proposed budget for Fiscal Year 1981 would meet these needs in two different ways, the first of which was a new fleet of maritime prepositioning ships to carry the heavy equipment

and supplies for three Marine brigades that could be stationed in forward areas where U.S. forces might be needed. With their supplies already near the scene of action, he said, the troops themselves could then be moved in by air. The second innovation would be a new fleet of large cargo aircraft to carry Army tanks and other equipment over intercontinental distances. Dept. of State Bulletin, No. 2035, ante, pp. 58, 59. Several days later, the President dispatched a United States mission to visit Oman, Somalia, and Kenya to discuss long-term, increased use of their naval and air base support facilities.

The United States concluded arrangements for the use of naval and air facilities in Oman, Kenya, and Somalia, by agreements signed, respectively, on June 4, June 26, and Aug. 22, 1980. The agreements entered into force on their respective dates of signature. Files, L/T.

U.S. strategic activities in the area were summarized in a statement by Matthew Nimetz, Under Secretary of State for Security Assistance, Science and Technology, before the Subcommittee on Foreign Operations of the House Appropriations Committee on September 16, 1980:

We are taking three broad steps to improve our military capability in the region. First, we have increased our peacetime military presence. This presence is largely naval-two carrier battle groups and a marine amphibious unit are deployed in the region. From time to time, these forces may be supplemented by tactical air force training missions.

Second, we are improving our capability to introduce our rapid deployment forces into the area, if needed to meet a Soviet military challenge, by prepositioning military equipment on ships in the region and procuring fast sealift and strategic airlift which can move forces rapidly.

Third, we are obtaining access to facilities in the area, to support both our expanded presence and our ability to move forces rapidly to the area. As you know, we have secured access to the facilities in Oman, Kenya, and Somalia. Elsewhere in the region, we are improving our facilities on the British Island of Diego Garcia and are encouraged by President Sadat's offer of temporary and limited access to facilities in Egypt.

Finally, recognizing that U.S. efforts cannot alone meet the threat, we are strengthening regional countries by providing security and economic assistance to help them develop their own defensive capabilities.

In developing our strategy, we recognize the political implications of our military actions-especially, as I mentioned earlier, the sensitivity of regional nations about being drawn into a superpower confrontation-and we have sought to minimize the adverse effects. Thus, we do not envisage a large U.S. presence on the ground; instead, we have emphasized peacetime naval presence so that we can reassure our friends without the political problems that a large ground presence would entail. By arranging for access to facilities in several different nations we reduce the political exposure of any one and minimize the presence of U.S. forces in any one location. Moreover, we have not asked the countries of the region to accept U.S. bases. Instead, we have sought access to their own facilities with minimal U.S. presence so that we can more effectively meet our mutual security interests.

Dept. of State Bulletin, Vol. 80, No. 2045, Dec. 1980, pp. 22, 23.

For a summary of legislative developments connected with the required funding to construct support facilities in the Indian Ocean area, see Congressional Quarterly Inc., Congress and the Nation, Vol. V, 1977-1980 (1981), pp. 166-167.

All of these efforts to stabilize the Persian Gulf area following internal developments in Iran in 1979 and the Soviet invasion of Afghanistan in December 1979 took on added importance in late September 1980 with the beginning of the Iran-Iraq war.

On September 28, 1980, Donald McHenry, United States Permanent Representative to the United Nations, set forth the principles guiding United States policy on the war before the 2248th meeting of

the United Nations Security Council, as stated several days previously by President Carter:

First, the United States will continue to observe a strict and scrupulous attitude of neutrality in this dispute. We have not been and we will not become involved in the conflict except to assist, to the extent of our power to do so, the efforts which are made by the international community to bring the conflict to an end.

Second, we expect the other nations will follow the same policy of neutrality and noninterference in the dispute. In particular, we expect all concerned to resist the temptation to exploit this conflict for their own purposes.

Third, the freedom of navigation to and from the Persian Gulf, which is of primary importance to the international community, must not be infringed upon in any way.

Fourth, this dispute must be settled at the negotiating table, not on the battlefield, and there must be an immediate cessation of hostilities.

U.N. Doc. S/PV. 2248, Sept. 28, 1980, p. 16; Dept. of State Bulletin, Vol. 80, No. 2044, Nov. 1980, p. 61.

Turkey

On March 29, 1980, the Governments of the United States and Turkey concluded at Ankara a five-year Agreement for Cooperation on Defense and Economy with related note, in accordance with Articles II and III of the North Atlantic Treaty. TIAS 9901; 32 UST 3323; entered into force provisionally on March 29, 1980, and definitely on December 18, 1980.

The Agreement established a general framework for developing and strengthening bilateral defense and economic cooperation between the United States and Turkey. It consists of an overall agreement that sets out general obligations for continued and enhanced defense and economic cooperation and three "Supplementary Agreements" that prescribe more specific implementing measures: the first on defense support; the second on defense industrial cooperation; and the third on installations, with implementing annexes.

Following U.S. imposition of legislative restrictions on arms sales to Turkey in 1975, Turkey unilaterally suspended the prior U.S.-Turkish bilateral defense agreement and other defense cooperation arrangements. A successor defense cooperation agreement was negotiated and signed in 1976, but that agreement was not implemented. With the resumption of full U.S.-Turkish military cooperation following the 1978 repeal of U.S. legislative restrictions on arms sales to Turkey, the two sides agreed to conclude a new set of arrangements rather than to modify the 1976 agreement.

-M.B.W.