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
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. …