ASIL Insights

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On November 6, 2003, the International Court of Justice (ICJ or Court), the principal judicial organ of the United Nations located in The Hague, The Netherlands, ruled, by 14 votes to two, that a series of retaliatory attacks by the U.S. Navy against certain Iranian oil platforms in the Persian Gulf in 1987 and 1988, although constituting an unlawful use of force, did not violate a 1955 commerce treaty between the U.S. and Iran since the attacks did not adversely affect freedom of commerce between the territories of the parties.  The judges from Egypt and Jordan dissented.  The ICJ also rejected, by 15 votes to one, the U.S. counterclaim seeking a finding of Iran's liability for interfering with the freedoms of commerce and navigation in the Gulf by attacking ships through missiles and mines.  The judgment, which comes at a time when the requirements for the use of force are hotly debated among UN member states, includes important statements regarding the legal limits on the use of force, including the criteria of necessity and proportionality.

I.          Historical background

On September 22, 1980, Iraqi military forces invaded Iran, triggering a war that lasted almost eight years.  Although the war was initially limited to a land war between Iran and Iraq, it spread to the Persian Gulf in 1984 when Iraq began attacking oil tankers on their way to and from Iranian ports, in an attempt to disrupt Iran's oil exports.  This resulted in the so-called Tanker War, which ended with the general ceasefire in August 1988.  During the Tanker War, Iran retaliated against Iraqi attacks by attacking and mining mostly neutral-flag ships coming from or destined for ports in Kuwait and Saudi Arabia, in disregard of the rules on neutral shipping and naval warfare.  More than a third of the 550 or so attacks reportedly were attributable to Iran's military forces.  Iran publicly blamed the U.S. for its support of Iraq.

The U.S. attacks on the Iranian oil platforms that are at the center of this case occurred after two specific attacks on shipping in the Gulf.  On October 16, 1987, the Kuwaiti tanker Sea Isle City, which had been re-flagged to the U.S., was hit by a missile near Kuwait harbor.  Asserting that Iranian oil platforms were used as a staging facility for attacks by Iranian forces against shipping in the Gulf, the U.S. attacked and destroyed two Iranian offshore oil production installations in the Reshadat complex three days later.  On April 14, 1988, the U.S. frigate Samuel B. Roberts struck a mine in international waters near Bahrain.  Five days later, the U.S. attacked and destroyed the Nasr and Salman platforms belonging to the National Iranian Oil Company.

In 1955, when relations between Iran and the U.S. were friendly, the two countries concluded a "Treaty of Amity, Economic Relations and Consular Rights" (the "Treaty"). [i]   Article X of the Treaty guarantees the freedom of commerce and of navigation between the territories of the two nations.  After the seizure of the U.S. Embassy in Tehran by Iranian students in November 1979, including the taking of American hostages, relations between Iran and the U.S. deteriorated up to a point where diplomatic relations were severed.  The two countries did not, however, terminate the Treaty.  The hostages crisis prompted the U.S. to institute proceedings against Iran before the ICJ, relying in part on the Treaty.  Iran refused to participate in the proceedings in the Hostages Case, so that the case proceeded in its absence.  The U.S. complaint resulted in a 1980 judgment in which the ICJ held Iran responsible for violating a series of obligations under international conventions in force between the two countries, including the Treaty, as well as rules of general international law (especially those regarding the treatment of diplomatic and consular representatives). [ii]

II.        The Oil Platforms Case before the Court

On November 2, 1992, Iran brought an Application before the ICJ against the U.S. in which it complained of the U.S. attacks on its oil platforms.  Although Iran had denied in connection with the 1979-1980 Hostages Case that the Treaty was still in force and neither party had made any mention of the Treaty at the time of the impugned actions, the Application relied on the compromissory clause included in Article XXI of the Treaty [iii] as the sole basis of jurisdiction.  The Treaty is an example of a "friendship, commerce and navigation" treaty ("FCN" treaty) that the U.S. used to enter into with selected countries for bilateral trade purposes, but which in recent years has been discontinued in favor of a more modern form of bilateral investment treaty ("BIT").  The U.S. has concluded dozens of BITs with mostly developing nations.  BITs typically do not include a compromissory clause providing for ICJ jurisdiction, but select World Bank or other arbitration as the dispute resolution mechanism. 

The U.S. filed preliminary objections seeking the immediate dismissal of the case in December 1993.  Its principal contention was that the Treaty did not apply to questions concerning the use of force in self-defense.  The ICJ rejected the U.S. preliminary objections in its judgment of December 12, 1996, finding that the destruction of the Iranian oil platforms was capable of having an adverse effect upon the freedom of commerce guaranteed by Article X(1) of the Treaty and that its unlawfulness could be evaluated in relation to that particular paragraph. [iv]   Consequently, a dispute that arose out of the use of force ended up before the ICJ as a case turning on the alleged violation of the freedom of commerce guaranteed in a bilateral treaty.

The Court's main task on the merits was to ascertain whether the U.S., by destroying Iranian oil platforms on two occasions, violated its obligation under Article X(1) of the Treaty concerning freedom of commerce between the territories of the two countries.  The Court decided to examine first whether the action taken by the U.S. was a measure necessary to protect its essential security interests in the sense of Article XX(1)(d) of the Treaty. [v]   The Court felt justified in taking this approach because the U.S. had relied on this provision as determinative of the question of the existence of a breach of its obligations under Article X(1).  In its 1996 judgment, the Court held that Article XX is not an exoneration clause barring the ICJ from assessing the lawfulness of measures taken to protect a party's essential security interests, but it may afford a possible defense on the merits.  For this reason, the November 6 decision deals extensively with the question whether the U.S. actions could qualify as self-defense under international law and hence as measures necessary to protect its essential security interests.  These issues were held to be overlapping.

The U.S argued that a missile attack on and the mining of ships flying its flag, together with other Iranian acts endangering neutral shipping in the Gulf, constituted a threat to its essential security interests within the meaning of Article XX(1)(d) of the Treaty.  The Court concluded, however, that the U.S. had not submitted convincing evidence that the missile attack on the Sea Isle City in 1987 could be attributed to Iran.  With regard to the April 1988 attacks on the Nasr and Salman platforms, the Court noted that these attacks, unlike the one that took place the previous year, were not an isolated operation directed at the oil platforms but formed part of a much more extensive U.S. military action code-named "Operation Praying Mantis."  In view of all the circumstances and the evidence submitted by the U.S., the Court found that, although the mining of a single military vessel might suffice to trigger the inherent right of self-defense, the mining of the USS Samuel B. Roberts was insufficient in itself to amount to an "armed attack" on the U.S. by Iran justifying U.S. action in self-defense.  The Court concluded that the evidence of Iran's responsibility for mining the USS Samuel B. Roberts was inconclusive. 

Confirming the applicability of the international law criteria of necessity and proportionality in relation to the use of force in alleged self-defense, the Court was not satisfied that the U.S. attacks of 1987-1988 were necessary to respond to the shipping incidents in the Gulf and constituted a proportionate use of force in self-defense.  On the issue of necessity, the Court placed the burden on the United States to show that the attacks on its vessels "were of such a nature as to be qualified as 'armed attacks' within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force."  (Paragraph 51 of the Judgment.)  This formulation could have implications for future claims of a right of anticipatory or pre-emptive self-defense insofar as it indicates that an armed attack is a prerequisite to the right of self-defense under Article 51 of the Charter and under customary international law.  On the other hand, it should be noted that the Court was only responding to a U.S. argument to the effect that armed attacks (the missile attack in 1987 and the mine in 1988) had already occurred against it. Consequently, the Court was not faced with an issue of anticipatory or pre-emptive self-defense.

On the issue of proportionality, the Court noted that if the U.S. response to the 1987 missile attack on the Sea Isle City had been shown to be necessary, it might have been considered proportionate.  But the same could not be said for the U.S. response to the 1988 mining of the USS Samuel B. Roberts because it was part of the more extensive "Operation Praying Mantis" which involved not only the attack on the oil platforms, but also the destruction of two Iranian frigates and a number of other naval vessels and aircraft.  (Paragraph 77 of the Judgment.)  The Court concluded that the attacks against Iranian oil installations carried out by U.S. forces in 1987-1988 could not be justified, under Article XX(1)(d) of the Treaty, as being necessary to protect the essential security interests of the U.S., and did not fall within the category of measures contemplated by that provision.

The remaining question to be decided was whether the U.S. actions complained of by Iran had the potential to affect "freedom of commerce" as guaranteed by Article X(1) of the Treaty.  The Court considered that where a state destroys another state's means of production and transport of goods destined for export, or means ancillary or pertaining to such production or transport, there is in principle an interference with the freedom of international commerce.  It added, however, that it does not follow that any interference with such activities involves an impact on the freedom of commerce "between the territories" of Iran and the U.S., as Article X(1) requires.  In other words, commerce must involve direct trading (here, in oil) between Iran and the U.S. and does not encompass indirect commerce involving intermediaries. 

The evidence showed that at the time of the first U.S. attack in October 1987, the targeted oil platforms were under repair and inoperative, i.e., were not producing oil.  When the U.S. attacked the other platforms in April 1988, a U.S. embargo on oil and services of Iranian origin was in place. [vi]   Based on this evidence, the Court concluded that there was at the time of each of the U.S. attacks no commerce between the territories of Iran and the U.S. in respect of oil produced by the targeted oil platforms, so that the U.S. actions against the platforms could not be said to have infringed the freedom of commerce in oil within the meaning of Article X(1) of the Treaty.  Consequently, the ICJ rejected Iran's submissions and its claim for reparation.

The ICJ also rejected the U.S. counterclaim.  The U.S. had requested the Court to adjudge and declare that, in attacking vessels in the Persian Gulf with mines and missiles and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the territories of Iran and the U.S., Iran had breached its obligations to the U.S. under Article X(1) of the Treaty and must make full reparation to the U.S.  In the Court's view, to succeed on its counterclaim, the U.S. had to prove two things.  First, it had to demonstrate that its freedom of commerce or of navigation "between the territories of the High Contracting Parties" to the Treaty was actually infringed.  Second, it had to prove that the acts which allegedly impaired one or both of those freedoms were attributable to Iran.

The Court concluded that none of the vessels described by the U.S. as being damaged by the Iranian attacks of which the U.S. complained was engaged in commerce or navigation "between the territories of the High Contracting Parties" to the Treaty.  Consequently, the U.S. counterclaim failed on the first requirement, and the Court did not need to address the contested issues of attribution of the alleged Iranian attacks.

This latest decision concludes a series of cases against the United States.  On September 10, 2003, Libya's case against the U.S. arising from the aftermath of the crash of PanAm flight 103 over Lockerbie, Scotland, was discontinued and removed from the ICJ's General List of cases.  The case had been pending for more than a decade.  An earlier case between Iran and the U.S. arising out of the shooting down by the USS Vincennes of an Iranian Airbus over the Gulf on July 3, 1988, was settled and discontinued on February 22, 1996, after having been pending for almost seven years.  One case against the U.S., which was brought by Mexico earlier this year and involves issues of consular notification in connection with certain Mexican nationals on "death row" in U.S. prisons, is still pending before the ICJ.

About the Author: 
Pieter H.F. Bekker, Ph.D. (pbekker@whitecase.com) practices international law and arbitration at White & Case LLP in New York City, and formerly served as a staff lawyer at the International Court of Justice.  He has written three books ("The Legal Position of Intergovernmental Organizations," "Commentaries on World Court Decisions (1987-1996)" and "World Court Decisions at the Turn of the Millennium (1997-2001)," all with Kluwer) and co-chaired the 94^th Annual Meeting of the American Society of International Law in April 2000.  The views expressed here are solely those of the author.

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