Background
In November 1992, Iran filed an application with the International Court of Justice (“ICJ”), claiming reparation for attacks conducted by the United States of America (“USA”) on its offshore oil platforms in the Persian Gulf. The request for the USA to be held accountable was concerning the attacks conducted by the USA on Iranian Oil Platforms on October 1987 and April 1988. Iran's sole basis for jurisdiction[i] was the compromissory clause included in the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States (“Amity Treaty”).
The USA filed a preliminary objection arguing that the treaty does not apply to cases of self-defence. In its judgment dated 12 December 1996, the Court held that the attack on Iranian oil platforms influenced freedom of commerce guaranteed by Article X (1) of the Amity treaty and dismissed the objection.[ii] The USA also filed a counterclaim on the ground that Iran interfered with commerce and navigation in the Persian Gulf.[iii] The use of force by the USA was in response to Iran attacking American and other vessels with missiles and mines.
Facts
During September 1980, Iraqi forces invaded Iran, and this led to an eight-year-long war. Although this was limited to a land-based conflict, it spread to the Persian Gulf as well. Iran responded to Iraqi attacks by subjecting neutral warships headed to Kuwait and Saudi Arabia to attacks by missiles and mines. The case is based on American attacks on Iranian Oil Platforms, which occurred after a series of attacks on ships in the Persian Gulf. The tanker, Sea Isle City, a Kuwaiti vessel that had been reflagged by an American ship, was hit by a missile near Kuwait Harbor.
The USA stated that Iranian Oil platforms were being used as a disguise for military activities by Iranian forces. Three days later, the USA attacked Iranian offshore oil production facilities. In April 1988, the US Frigate Samuel B. Roberts hit a mine near Bahrain in international waters. Four days later, the USA attacked oil platforms belonging to National Iranian Oil Co.
Issues
With reference to claims by Iran:
a. Whether the USA, by attacking Iranian oil platforms, had violated its obligation under Article X (1) of the Amity Treaty?
b. Whether the actions by the USA had the potential to affect freedom and commerce guaranteed by Article X (1) of the Amity Treaty?
With reference to the counterclaim by the USA:
c. Whether Iran had attacked vessels in the Persian Gulf with missiles and mines and violated their obligation under Article X (1) of the Amity Treaty?
Judgement:
Iran's Claim and the American Defense under Article XX (1)(d) of the Amity Treaty
Before determining the alleged violation of the USA's obligation under Article X (1) of the Amity Treaty, the Court, in its judgement dated 6 November 2003, decided to examine the question regarding the party's essential security interests with reference to Article XX (1)(d) of the Amity Treaty.[iv] The article states that the treaty shall not preclude any state from exercising its right to protect its essential security interests. The Court stated that self-defence could not be seen within the purview of only "essential security interests." It has to be interpreted with reference to the relevant rules of international law. Hence, it will entail assessing whether the circumstances meet the requirements of self-defence found in the Charter of the United Nations (“UN Charter”) and customary international law.[v] Therefore, the Court decided to test the applicability of the American attacks with reference to the relevant rules of international law as well as the principles of necessity and proportionality.[vi]
On the principle of necessity, the Court placed the burden on the USA to prove that the attacks on its vessels constituted an "armed attack" as understood in customary international law on the use of force and Article 51 of the UN Charter.[vii] The USA argued that the oil platforms served as a link to Iranian military forces. The attacks on its vessels via mining and the missile attack constituted a threat to shipping in the region, as understood Article XX (1)(d).[viii] The USA argued that since Iranian actions constituted a threat to shipping in the region and their vessels, they took actions to protect their essential security interests. Iran argued that the oil platforms had no military relevance and, while denying any responsibility, pointed towards Iraq for such links.[ix] Iran also argued that the mine struck by US Frigate Samuel B. Roberts might have been placed by Iraq.
The Court concluded that concerning the claims by the USA for attacking their vessels and mining of US Frigate Samuel B. Roberts, the USA had provided insufficient evidence to prove Iranian involvement. Hence, the Court agreed with Iran that the evidence provided was inconclusive to prove Iran had any involvement in the attack.[x]
On the principle of proportionality, the Court noted that if the attack by the USA were deemed to be necessary, they could have been proportionate. Not only did the USA attack Iranian oil platforms, but also two Iranian Frigates and vessels.[xi] On this issue, the Court concluded that the attacks by the USA were neither necessary nor constituted a proportionate use of force. Hence, the attacks by the USA forces on Iranian oil installation cannot be justified as necessary measures to protect essential security interests under Article XX (1)(d) of the Amity Treaty.
Iran's Claim under Article X (1) of the Amity Treaty
Iran had argued that the USA violated their "freedom of commerce" as guaranteed under Article X (1) of the Amity Treaty since they attacked their commercial facilities, that is, the oil platforms.[xii] The Court stated that "freedom of commerce" as per the Amity Treaty cannot be interpreted concerning the world, but only regarding trade relations between Iran and the USA. For Iran's claim to prevail, the attack on Iranian oil platforms must have had affected the export of Iranian oil to the USA.[xiii] Iran argued that the oil being produced by the platforms could have been delivered to the USA but now could not be due to their destruction. The USA tried to argue that the platforms were military in nature and not commercial, but the Court held that the platforms were commercial in nature and, therefore, came under the purview of the Amity Treaty.[xiv]
Iran also tried to argue that trade via intermediaries was also covered under the purview of this clause. However, the Court rejected this argument and stated that in the context of the Amity Treaty, the only form of trade to be considered is the direct oil trade between Iran and the USA.[xv] While examining the evidence, the Court emphasized that in terms of the first American attack in 1987, the oil platforms were already recovered from damage due to the Iraqi attacks. Therefore, these platforms were in no condition to produce oil. [xvi] The second American attacks were in April 1988, when a US trade embargo had been placed on Iran, prohibiting the import of oil and other goods and service of Iranian origin. Trade between the USA and Iran was already suspended, so the attack could not have affected it.[xvii] Therefore, the Court held that there was no trade between Iran and the USA directly connected to the oil produced on the platforms. Thus, the Court rejected the Iranian claim for reparations.[xviii]
Merits of the counterclaim by the USA
In order to prove that Iran attacked vessels in the Persian Gulf with missiles and mines and violated their obligation under Article X (1) of the Amity Treaty, the USA had to prove two significant points.[xix] First, that the "freedom of commerce or navigation" had been breached by the Iranian attacks. The "freedom of commerce or navigation" in this context refers to the high contracting parties of the Amity Treaty and not the world at large. Second, that Iran was directly responsible for the breach of one or both freedoms.[xx]
The Court stressed the fact that the Amity Treaty protects vessels that are engaged in navigation or commerce between the territory of Iran and the USA; and not freedom of navigation or commerce in general.[xxi] Out of the ten incidents referred by the USA, the Court found these vessels bearing the flags of other nations and therefore, they did not come under the purview of the Amity Treaty.[xxii]
In reference to the attack on US Frigate Samuel B. Roberts, the Court held that the status of the ship was of a warship, and it was not involved in activities relating to commerce or navigation.[xxiii] Since none of the vessels pointed out by the USA as being "damaged by Iran" were engaged in navigation or commerce between Iran and the USA, the Court rejected the USA's counterclaim for reparation due to the violation of the Amity Treaty.[xxiv]
Conclusion and Analysis:
Intriguingly, the international jurisprudential architecture is being established concurrently with the Security Council's authority being reserved by the Charter. In this way, the evolving international norms outside and beyond the Security Council's veto power correspond to the International Criminal Court's newly vested authority. Within the international framework of the United Nations, new centers of power are being developed, which are generating new standards for adjudicating armed conflict. In effect, a new nascent institutional reorganization is underway, raising the question of what role each United Nations organ should play.
The Oil Platforms case brings this issue to a head, implying that the naked "manatee" of international law's role in the use of force and self-defense has been exposed. In its role as an actor in a balance of power, hegemonic, or imperial system, the United States has staked out its position on the use of force and self-defense and expanded its view of national interest in a world beset by terrorism. When there is insufficient enforcement of judgments, the cacophony of international legal voices and international legal centers undermines the law's power and legitimacy.
However, what if the Court had spoken in unison—would that have been a "moment that established an international legal norm?" Perhaps, if the judges' opinion truly reflected a cross-section of great and significant powers. Such "unanimity of voice" would have signaled to the US that, as a hegemon, it was losing legitimacy with its allies and transforming into an imperial power, establishing and enforcing bilateral treaties based on force rather than international norms. This position would have been strengthened had the Security Council, with the exception of a US veto, adopted a resolution sanctioning the US for its actions. Ignoring such universal, global condemnation would have highlighted the distinction between a hegemon and an imperial power acting unilaterally on the basis of internal legitimacy. Yet the question remains as to why the United Nations would allow the Tanker War to continue against third parties, preferring to remain neutral. Without internationally sanctioned action, what will become of the international regime's political order?
In the immediate aftermath of September 11, 2001, the Security Council unanimously adopted Resolution 1368 condemning terrorist acts and expressing its readiness to take all necessary measures in response to the terrorist attacks of 11 September 2001 and to combat all forms of terrorism, in accordance with its obligations under the United Nations Charter.[1] This was the type of leadership in international law that the Council's founders envisioned. Additionally, a few weeks later, the Security Council acted again, adopting Resolution 1373, one of the most comprehensive resolutions aimed at preventing, criminalizing, and advocating for the suppression of all financial support for terrorism[2] in the Tanker War.
What happened to the Council? In the case of the Oil Platforms, the political power algorithm is as follows: oil is an indispensable commodity; open sea lanes in the Persian Gulf are indispensable passageways; the US, because it possesses the power and the Security Council remained silent, took appropriate military action to reassure all parties that oil and oil tankers would continue to flow for the benefit of the international community.
This was a matter of political and international order—so why hadn't the Security Council issued a statement to that effect and taken action to defend it? Why has this been elevated to the International Court of Justice's jurisdiction? The United States employed a conservative use of force in order to accomplish its objective with the fewest possible casualties. Targeting strategic property associated with the subject at hand—oil platforms, the regime's primary source of revenue. The US took such action at the request of neutral states harmed by the attacks. This was a political decision that employed proportionate force to accomplish the objective. Today, if confronted with a similar problem in the Gulf, how would the US respond differently in light of the current findings in the self-defense case? I believe not. Would the Security Council react differently if confronted with a similar problem in the Gulf in light of the current findings in the self-defense case? I believe not.
If attacked again, the United States would assert its right to self-defense as the guarantor of international order openly. Would that be incorrect under international law, as interpreted by the International Court of Justice, the Security Council, the most recent "coalition of the willing”, or the US Congress? Finally, the case raises the following question: in a world where fundamental questions about the "use of force" are being debated, should we not, as internationalists (regardless of the regime we are under), be exploring ways to confront this issue as a first-order international political issue? What are the new "burdens of proof" that must be met before force can be used against a state or non-state actor in accordance with jus ad bellum and proportionality under jus in bello? Is "self-defense" a different concept in a world where state actors are not the only entities capable of wreaking havoc? If we avoid this discussion and continue to jerry-rig jurisdictions in fora not established for such matters, or if we use fora where international law has no bearing, who will be the international law manatee
[1] S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., para. 5, U.N. Doc. S/RES/1368. [2] U.N. Security Council, Security Council Unanimously Adopts Wide- Anti-Terrorism Resolution (Sept. 28, 2001), U.N. Doc. SC/7158 (2001).
[i] See Also, United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 ICJR EP.3 [ii]Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, 1996 ICJ REP. 803, [20] [51] [55(2)] [iii]Oil Platforms (Islamic Republic of Iran v. United States of America), (Counter-Claim), 1998 ICJ REP.190 [iv]Oil Platforms (Islamic Republic of Iran v. United States of America), (Merits) [35] [v]ibid [41] [vi]ibid [43] [74] [vii]ibid [51] [viii]ibid [48] [74] [ix]ibid [54] [55] [x] ibid [72] [xi]ibid [77] [xii]ibid [79] [xiii]ibid [82-83] [xiv]ibid [85-86] [xv]ibid [95-97] [xvi]ibid [92] See also Separate Opinion of Judge Simma [26] [xvii]ibid [94] [xviii]ibid [99] [125] [xix]ibid [103-118] [xx]ibid [119] [xxi] ibid [119] [xxii]ibid [120] [xxiii]ibid [120(1)] [xxiv] ibid [123]
Ahan Gadkari is a penultimate law student pursuing the B.A. L.L.B. (Hons.) course in O.P. Jindal Global University. He writes for many think tanks and blogs. His key interests include arbitration and international law.
Image Source: Credits to Christopher Weyant