Case concerning Oil Platforms (Islamic Republic of Iran V United States of America): Did the ICJ Miss the Boat on the Law on the Use of Force?

Garwood-Gowers, Andrew, Melbourne Journal of International Law

CONTENTS  I   Introduction II  Facts and Earlier Proceedings III The Judgment on the Merits       A Iran's Claim       B The US Counterclaim IV Comment       A The Law on the Use of Force       B The Meaning of 'Freedom of Commerce'.       C Judicial Methodology V Concluding Remarks 

I INTRODUCTION

On 6 November 2003 the International Court of Justice delivered its judgment on the merits in the Case concerning Oil Platforms (Islamic Republic of Iran v United States of America). (1) The decision, handed down more than 10 years after Iran initiated proceedings, brought to a close a series of disputes between Iran and the US. (2) Arising out of the US attacks on Iranian oil platforms in the Persian Gulf during the 1980-88 Iran-Iraq war, this unusual case came before the ICJ as a question of alleged breaches of a 'freedom of commerce' provision in a bilateral trade agreement between the US and Iran, rather than as a dispute over the use of force under general international law. (3) However, it did offer the Court an opportunity to comment on the law of self-defence at a time when the Charter of the United Nations framework on the use of force was under significant pressure as a result of military action in Kosovo, Afghanistan and, most recently, Iraq. (4)

The Oil Platforms Case involved a claim by Iran and a counterclaim by the US. Iran claimed that by destroying Iranian oil platforms, the US breached its obligations under the Treaty of Amity, Economic Relations and Consular Rights (5) regarding 'freedom of commerce' between the territories of the two States. (6) The US counterclaim contended that Iranian attacks on naval and commercial vessels in the Persian Gulf constituted a breach of the Treaty's provisions on 'freedom of commerce' and 'freedom of navigation'. In its judgment on the merits, the ICJ rejected both Iran's claim and the US counterclaim. Adopting a narrow view of the notion of 'freedom of commerce', the Court ruled, by 14 votes to two, (7) that although the US attacks were not justified under a separate provision (8) of the Treaty as 'measures necessary to protect the essential security interests', (9) they did not violate the Treaty. The Court also rejected the US counterclaim by 15 votes to one. (10)

This case note examines the ICJ's judgment on the merits in the Oil Platforms Case, with an emphasis on its implications for international law on the use of force. Part II outlines the facts of the case and reviews earlier proceedings. Part III provides an overview of the Court's ruling on Iran's claim and on the US counterclaim. Part IV explores in more detail three aspects of the judgment. The first and major focus is on the significance of this case for the law of self-defence. While the Oil Platforms decision confirms the traditional requirements of self-defence, this case note suggests that the Court did not go far enough in its discussion, and thus missed an opportunity to comment on and clarify other aspects of the law of self-defence. The second area examined is the Court's interpretation of the 'freedom of commerce' provision in the bilateral treaty between the US and Iran. It is suggested that the Court adopted an overly narrow and formalistic approach to this issue. The third and final area discussed is the Court's judicial methodology. Three aspects in particular are noteworthy: the phrasing of the dispositif, the Court's decision to examine the 'defence' question before determining whether there had been a breach of the 'freedom of commerce' provision, and its focus on the law of self-defence rather than the terms of the Treaty provision in ruling on that 'defence'. (11)

II FACTS AND EARLIER PROCEEDINGS

The Oil Platforms Case arose out of a series of military incidents in the Persian Gulf in 1987 and 1988. (12) At that time Iran and Iraq were engaged in an armed conflict that had begun in 1980 with Iraq's invasion of Iran. From 1984 onwards, the conflict spread to the shipping routes of the Persian Gulf after both States began laying mines and attacking oil tankers travelling through the area. This 'Tanker War', as it became known, caused significant disruption to shipping, forcing commercial vessels to be re-flagged (13) to other States or to be escorted through the area by warships. (14)

The US military action against Iranian oil platforms--which formed the basis of Iran's claim--was triggered by two specific attacks on shipping. The first occurred on 16 October 1987 when the Sea Isle City, a Kuwaiti oil tanker re-flagged to the US, was struck by a missile near Kuwait Harbour. (15) Blaming Iran for the incident, the US responded on 19 October 1987 by attacking two Iranian offshore oil platforms, the Reshadat and Resalat complexes. The US claimed to be acting in self-defence. (16) The second incident occurred on 14 April 1988 when the US frigate, Samuel B Roberts, was damaged by a mine in international waters near Bahrain. (17) The US again attributed responsibility for the attack to Iran, and again claimed self-defence as a justification for attacking the Salman and Nasr oil platforms four days later. (18)

On 2 November 1992 Iran filed an application in the ICJ against the US over the destruction of the oil platforms. Its application was based not on general international law on the use of force--as the US lack of consent to jurisdiction would have prevented the Court from proceeding on that ground--but rather on the Treaty. (19) Article XXI(2) of the Treaty contained a compromissory clause that Iran relied on as the basis of the Court's jurisdiction. This clause provided for disputes concerning the 'interpretation or application of the present Treaty' to be submitted to the ICJ if they could not be resolved through other peaceful means. (20) Iran claimed that the US action in destroying the oil platforms constituted a breach of three Treaty provisions, including art X(1), which stated that '[b]etween the territories of the two High Contracting Parties there shall be freedom of commerce and navigation'. (21)

On 16 December 1993 the US filed preliminary objections to Iran's application, arguing that the ICJ lacked jurisdiction, primarily because the Treaty had no application to matters involving the use of force. (22) This was rejected by the ICJ in its judgment on preliminary objections of 12 December 1996. The Court ruled that '[m]atters relating to the use of force are ... not per se excluded from the reach of the Treaty of 1955'. (23) Further, the Court found that there was a dispute between the US and Iran as to the 'interpretation and application' of art X(1) of the Treaty and that this dispute fell within the scope of the compromissory clause. As a result the Court concluded that it had jurisdiction to hear Iran's claim. (24)

On 23 June 1997 the US filed a counterclaim alleging that Iran had also breached art X(1) of the Treaty by attacking and disrupting shipping in the Persian Gulf during 1987 and 1988. Iran objected to the counterclaim, arguing that it broadened the scope of the dispute and therefore did not satisfy the requirements of art 80(1) of the Rules of the International Court of Justice. (25) However, the Court dismissed Iran's objection and added the US counterclaim to the main proceedings brought by Iran. (26)

III THE JUDGMENT ON THE MERITS

On 6 November 2003 the ICJ delivered its judgment on the merits of Iran's claim and the US counterclaim. The Court's ruling and reasoning on each claim will be …

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Publication information: Article title: Case concerning Oil Platforms (Islamic Republic of Iran V United States of America): Did the ICJ Miss the Boat on the Law on the Use of Force?. Contributors: Garwood-Gowers, Andrew - Author. Journal title: Melbourne Journal of International Law. Volume: 5. Issue: 1 Publication date: May 2004. Page number: 241+. © Not available. COPYRIGHT 2004 Gale Group.

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