A Study of the International Court of Justice’s Decision in the Oil Platforms Case

Public International Law

Submitted by

Shubhangi Jain

UID :- SF0115051

3rd year & 6th Semester

National Law University, Assam

1
 Content

Table of Cases.........................................................................................................................3
Table of Statutes.....................................................................................................................3
Table of Abbrevations............................................................................................................3-4
Introduction............................................................................................................................5-6
Aim.........................................................................................................................................6
Scope and limitations.............................................................................................................6
Review of Literature...............................................................................................................6-7
Research Method....................................................................................................................7
Factual Background of the case and Submission of the Parties before the Court.........8-9
Issues and Analysis..............................................................................................................
Were the attacks on the Oil Platform justified as steps taken to protect the security
interests of the US?......................................................................................................9-11
Did the Oil Platform Attacks Interfere with Iran’s Freedom of Commerce?.........12
Did Iran’s Own Actions Interfere with the United States Freedom of Commerce.12-13
Pin Prick Theory.................................................................................................................14
Rules Applied.......................................................................................................................14
Conclusion...........................................................................................................................15
Bibliography

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Table of Cases
1. Case Concerning the Military and Paramilitary Activities in and Against Nicaragua

(Nicaragua v. United States of America)

2. The Caroline and Mcleod Cases

3. Asylum case (Columbia v Peru)

4. Corfu Channel Case (United Kingdom v Albania)

Table of Statutes
1955- Treaty of Amity
1945- United Nations Charter

Table of Abbreviations

1. Article
Art

2. The United Nations Organisation

UN

3. Paragraph
Para

4. The United States of America

US

5 November
Nov

6 International Court of Justice

ICJ

7 Reports
Rep

3
8 The Treaty of Amity
treaty

9 That is
i.e

10 Volume
Vol

11 Number
No

12 Page
Pp

13 Ibidem
Ibid

14 October
Oct

15 The United Nations Charter

charter

16 Security Council
SC

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Introduction
The case between Iran and United States of America known Oil Platforms case is as a case of
International Court of Justice. The facts of the case are related to the series of events which have
taken place during Iraq-Iran of 1980 to 1988. This case is important because of its contribution to
the law on self defence and use of force. The judgement of this case was very complex as all the
eleven judges held different opinion. The case revolved around the bilateral treaty (Treaty of
Amity) between the two countries regarding the freedom of trade. The different opinion of the
judges shows the different vision of the ICJ.

During the war, due to attacks on merchant shipping vessels in the Persian Gulf, the US and
other states engaged in “counter-attack” by targeting two Iranian oil platforms and severely
damaging them in separate incidents. The US argued that it was only responding to a perceived
threat and the attacks were only in the interest of security in the region. Tehran, not buying this
theory of self-defence put forth by the US, cited several violations of bi-lateral International
treaties crying foul over such use force.

States cannot use force against each other. This had been established both in Customary
international law as well as Art2(4) of the UN Charter. But it does not answer the question where
force is used by state of self-defense.Therefore there arises a dispute between the two. In the
present case the court decides whether the force used by US was in fact pre-emptive in nature
and if it was then was it proportional to the injury? While deciding the question in front of the
court, it developed a new theory regarding the use of force. This theory has been discussed in
detail in the research paper. The contemporary wolrd sees the practical significance of this
judgment.

The research paper had been divided into four part as a part of IRAC. The first part contains the
factual background where the researcher has thoroughly discussed the facts of the case and the
circumstances that surrounded it.

The second part of the research paper enlists the Issues that the researcher founded in the current
case and a brief discussion of those issues.

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The third part of the research paper focuses on the rules that were applied or were involved in the
case such as the law on use of force, or the right of the parties to approach the court.

The fourth part of the paper entails an analysis of the case and the judgment delivered by the ICJ.
It specifically focuses on the opinion of Judge Simma because of his articulation of
Rechtspolitik. It also tries to enlighten the reason for the dispute between the opinion of the
judges and also such dispute is relevant.

The researcher finally concludes the paper by summarizing his findings in the last part of the
research project that is the conclusion.

Aim(s)
The research project aims to study and critically analyse the judgment of the ICJ in the oil
platforms case.

Objective(s)
The following are the objectives of the research project
To critically analyse the judgment in the oil platforms case
To analyse the concept of armed attack with respect to art 51 of the UN charter and the
Nicaragua case

Scope and Limitations

The scope of the research project is limited to the study and analysis of the provision mentioned
in the judgement i.e the provisions of the treaty and of the UN charter. It has also taken into
account certain other case laws which have been referred by the ICJ in the present case.

Review of Literature
James A.Green, ‘THE OIL PLATFORMS CASE: AN ERROR IN JUDGMENT?’,
JournalConflict & Security Law (2004)
This articles has discussed the whole judgment of the ICJ in the instant case. It has focused not
only on the final judgment but also on the opinions of the minority judges. However, the author
criticizes the judgment and does total justice to such criticism by providing all the reasoning.

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According to the author, the court could have taken a keen interest in providing answer to the
link between armed conflict and economic interest of the state, a view which even the researcher
has formed during her own research. The author also seems to have a different opinion with
regards to the claim of Iran against the US for the breach of its obligation under Art X, Para 1 of
the Treaty of Amity.

Geoff Gordon, THE OIL PLATFORMS OPINION: AN ELEPHANT IN THE EYE, Amsterdam
Law Forum, VU University, Vol 1 No 2
The author has given a brief summary of the judgment of the court. However, it paid importance
to the judicial controversy that happened during the judgement. It has specifically discussed the
dissenting opinion of Judge Simma and Rechtspolitik. It has discussed in brief the opinion of all
the judges in all the three parts of the judgement. However, this article did not analyse the
judgement.

Research Methodology
The researcher has adopted doctrinal form of research and has used secondary resources to
supplement the research. It has relied on journals, articles, books and other secondary resources.
The researcher has followed the latest research template.

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Factual Background
The case is concerned regarding the military action undertaken against three offshore oil
platforms which were situated in the Persian gulf and were owned by the Iranian National Oil
Company by the United States of America. These events had taken place during the course of the
Tanker War1. During this the conflict had actually transformed to military action which
previously was just on territorial operations. The war had taken place between 1980 and 1988.
The destruction of these complexes was not contested by the parties, nor was the fact that this
was attributable to warships of the United States Navy.Th first attack had taken place on 19
October 1987 where four destroyers from the United States had stuck on Reshadat, an Iranina
Complex and Resalat.Resalat was connected to Reshadat by a submarine pipeline. It has
destroyed platforms connected to this complex. These installations were damaged. But at the
time of destruction none of these installations were producing oil. These were attacked by US as
its right of self defense against the attack done by Iran on 16 Oct 1987 which destroyed Sea Isle
City (reflagged to US). Again., there were attacks made by US on 18 April 1988. This time it
destroyed two more installations, Salman and Nasr. However, these two were producing oil at
that time and therefore it hampered the production of oil not for several years. Iran aggravated by
the conduct of Us, approached the ICJ on 2 Nov 1992 and instituted proceedings against the US
on the ground that US had violated the provision of the treaty of Amity which was signed in
August 1955 and came into force on 16 June 1957. The series of conduct by the US has violated
Art I and X of paragraph 1 of the treaty. Art I of the treaty talks about ‘firm and enduring peace
and sincere friendship’2 and Art X, Para 1 talks about freedom of commerce and navigation
between these two territories.3Iran invoked international law to prove that use of force but in its
oral submission it did not raise this contention. During the proceeding related to jurisdiction Iran
had also accused the US for breach of art IV, Para 1 of the bilateral treaty. However, the US
declined these accusations but also gave an alternative justification for the same as the actions
undertaken by the US constituted actions which were necessary for protecting the security
interest of the nation and therefore the same were also justified under Art XX, Para 1(d) of the
treaty. US also filed a counter claim alleging breach of the treaty by Iran. Iran had caused
damage to the US during the Tanker war and had created extremely dangerous conditions for

1
The war between Iran-Iraq started in 1980s.
2
Art I, The Treaty of Amity, 1955
3
Art X, The Treaty of Amity, 1955

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shipping.4
On the question raised by the Us regarding the jurisdiction of the court over the issue, the court
in its judgment dated 12 dec 1996 had said that under art XXI, Para 2 of the treaty it could
entertain the case. The article says that “Any dispute between the High Contracting Parties as to
the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy,
shall be submitted to the International Court of Justice, unless the High Contracting Parties
agree to settlement by some other pacific means” 5. Iran’s contention of breach of art I by the US
was not applicable to the present dispute and therefore the case now depended on its contention
of breach of art X Para 1. Now, by the judgement delivered by the court on 10 March 1998, it
approved the counterclaim made by the US. The question that the court had to decide upon was
whether there had been a breach of art X para 1 by Iran or by the US or by both of them under
the treaty.
.
Oral Pleadings were made before the court in between 17 Feb and 7 March 2003. The court ha
delivered its judgment on 6 Nov 2003. On the question regarding the breach of art X para 1 by
the US, it had examined art XX, Para 1(d) and whether the article served a s a justification for its
attack on the oil platforms.
The court also interpreted art X, para 1 so as to analyse the ground for the complaint instituted by
Iran i.e, did the attack actually affected the freedom of trade and commerce between the two
states.
The court at last decided upon the counter claim filed by the US regarding the attack by Iran
during the Tanker war.
The court had decided in favour of the US saying that it did not violate the provision of the treaty
and held its use of force for self-defense legitimate.

Issues and Analysis

Were the attacks on the Oil Platform justified as steps taken to protect the security
interests of the US?
4
James A.Green, ‘THE OIL PLATFORMS CASE: AN ERROR IN JUDGMENT?’, JournalConflict & Security Law
(2004), pp 357-358
5
Art XXI, The Treaty of Amity, 1955

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Para 1(d) of Art XX states that “the present treaty shall not preclude the application of measures
necessary to fulfill the obligations of a High contracting party for maintenance of restoration of
international peace and security, or necessary to protect its essential security interests.” 6 So,
according to this article if the actions undertaken by the US resorted to such measures then it
does not violate Art X Para 1. The court had turned to the general international law as art XX
does not justify unlawful use of force. There existed certain circumstances which the court
deemed important for examining the justification clause.
If the question whether such measures were taken as an act of self defense then they pass as
measures taken to protect the nation’s security interests. Thus, both of them were considered to
be one and the same thing by the court. Therefore, the court started demarcating the principles
which justifies certain actions which have been taken in self-defense and subsequently applied
those principles to the facts of the present case. For justifying the self-defense by the US it has
thus to be proved that the state was under an armed attack as given under Art 51 of the United
Nations Charter and under customary International law. And the attack by the US was against
Iran, the attack to US must have been made by Iran. And that those attacks are treated as armed
attack under Art 51. Or under the law on use of force in Customary International Law.
In Nicaragua Case7, the ICJ has seen armed attack “as the gravest form of use of force”8.
For an action to be qualified as an act of self-defense, such action has to be appropriate,
necessary and proportionate.For the first attack led by the Us on 19 Oct 1987, it justified the
action as an act of self defense to the UN security Council. They held Iran responsible for the
attack on Sea Isle City on 16 Oct 1987. Therefore, classified that attack as an armed attack under
Art 51 of the charter. They also contented that there were a seriesof attack and Sea Isle was the
last one or a fresh one. The same justification has been pleaded by it in written submissions as
well. Later on, it also questioned the court’s jurisdiction over the matter. However, in the final
submission, it maintained its position on justifying its actions under art XX, para 1(d) of the
treaty of Amity. They alleged that Iraq was responsible for the attack on Sea Isle by Silkworm-
the missile and it was launched from, the Faopensinsula which falls in territory of Iraq. Although
at that point of time it was occupied by Iranian Forces but it could not gather evidence to prove
the same. Similarly, they had no parts or fragments of the missile left to show that this was the
6
Art XX, Para 1(d), the treaty of Amity, 1955
7
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), 1986 ICJ 14
8
ibid

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same missile which had attacked Sea isle. A Kuwaiti officer gave testimony in favour of the US
who had witnessed the launch of that missile and said that it went on the path of Persian Gulf
where Sea Isle was situated.
The court had was thus under a dilemma whether the attack on Sea Isle would come under the
purview of Art 51 of the charter and was Iran responsible for the same. The Court said that the
images from the satellite that US had produced to support its claim were not clear enough to
attribute the attacks to Iran. And regarding the testimony, it said that the office came forward to
give the testimony 10 years after the actual attack and could not tell the actual launch site of the
missile. Thus, even of there was an indication of Iranian involvement in the attacks it could not
be clearly established and therefore the contention of the US does not stand. Therefore, the first
series of attack on US on 16 Oct 1987 were not attributed to Iran. Regarding the mining attack
on the US warship on 14 April 1988, the state had contented in front of the court as well as the
security council that these attacks were made by Iran. Since the mines were laid in the same area
which bore Iranian Serial Numbers. But during that period i.e. Iran Iraq conflict period both the
parties to the conflict were laying down mines in that area. So, the evidence given by the US was
‘highly suggestive but not conclusive’9. There was not sufficient evidence to attribute the attacks
to Iran. And even if there was, the court was of the opinion that a single mining attack does not
give the actions a justification for acting in self defense under Art 51 of the Charter.Therefore the
burden of proof still lied on US. US had started an operation Praying Mantis which not only
destructed Salman and Nasr but also Iranian Navy vessels. Therefore, the legality of the action
undertaken by the US was in question. Even if the attacks by Iran qualified as an armed attack, it
still did not give US the right to act in such an inappropriate manner. Its actions were totally
disproportionate and thus amounts to illegal actions.
US had never denied the actions undertaken by him. It had always justified such use of force by
him. The court found it in contravention to Art 2(4) of the Charter and simultaneously in
violation with customary International law. US could not justify its actions as self defense and
could prove itself to be a victim of an armed attack by Iran. The court therefore declared that the
attacks on the oil platforms could not justified by application of Art XX para 1(d) of the treaty of
Amity.10

9
Oil Platforms, Iran v United States, [1996] ICJ Rep 803
10
Geoff Gordon, THE OIL PLATFORMS OPINION: AN ELEPHANT IN THE EYE, Amsterdam Law Forum, VU

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Did the Oil Platform Attacks Interfere with Iran’s Freedom of Commerce?
Now, after deciding the question on breach of art XX para 1(d), the court now focused on the
question of breach of Art X Para 1 of the Treaty. But for deciding this it first needed to define the
scope of or interpret the expression “freedom of commerce and navigation” 11. In the present case
since the oil platforms were not producing oil at the time of the attack there was no interference
with commerce. Oil exports from Iran to US were fundamental to this case and not other exports.
But this article not only protects commerce but also the freedom of commerce, therefore, when
looked into it with this aspect, there was a restriction to such freedom. Reshadat was not
producing oil at the time of attack so the attacks only delayed the resumption of production of oil
in that installation. There was no oil trade going on between the parties at that point of time so
US did not violate freedom of commerce. ICJ looked into Art X as a provision which gurantees
actual commerce and not the aspect of future commerce. Now, before the second attack by the S,
i.e the attack on Salman and Nasr, the then President of US had already stopped the import of
goods from Iran. So, at the time of the attack there were no transactions between the two states.
Now as a result of this, the import now from Iran was directed to the Western Europe and a s a
result of increase in their petroleum level, it was being imported by the US, so the Crude oil from
Iran was necessarily imported by the US.12 So, as a result of the trade embargo put by the US,
although there were no direct transactions between the parties but there existed indirect
transaction between the two. The court considered it to be a part of the commercial transaction
between the two. But these transactions did not amount to commerce as Iran had no interest in
the product after its initial stage. Therefore, the court had rules that the US had no violated its
obligation with regards to the series of attacks it had made on Iran under Art X, Para 1 of the
Treaty of Amity.

Did Iran’s Own Actions Interfere with the United States Freedom of Commerce?
The judgment was written in three sections, the third and the last section of the judgment decides

University, Vol 1 No 2, http://amsterdamlawforum.org/article/view/70/105

11
Art X, Para 1, Treaty of Amity, 1955
12
James A.Green, ‘THE OIL PLATFORMS CASE: AN ERROR IN JUDGMENT?’, JournalConflict & Security
Law (2004), pp 365

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the question raise by the US in its counter claim. US had alleged Iran of attacking its vessels and
laying mines in the Persian Gulf region which resulted in damage to the US and its maritime
trade. It contented that Iran was under an obligation under Art X, Para 1, and the same had been
violated by it. In the second portion of the judgment the court had decide whether the actions by
US had led to the breach of its obligation under Art X, Para 1, now the same question has be
decided with respect to the actions of Iran. The court looked at the incident for answering the
query and also rejected the contention of Iran negating the jurisdiction of the Court to entertain
such counter claim. The court found out the attacks which are attributed to Iran wee of that
period when none of the vessel of the US were in business or trade. Or navigation. The Us had
also raised other contention in its counter claim, not only for itself but also for other states. Iran
was of the view that the court has to entertain the dispute between two parties only, and not on
behalf of any other party, and that the counter claim put forward by the US was presented
without any negotiation with Iran which violated the requirement of Art XXI, para 2 of the
treaty. It also said that the claim presented was in addition to what can be accommodated by Art
X, para 1 and also it talked about freedom of navigation and not freedom of commerce. Although
all these contentions were rejected by the court. The court gave the following reasoning:
Art XXI para 2, says that Any dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall
be submitted to the International Court of Justice, unless the High Contracting Parties agree to
settlement by some other pacific means. 13 And since the dispute was not solved by diplomacy,
the ICJ had jusrisdiction over it. Regarding the question of freedom of navigation, it said that, it
would decide both on the question of freedom of commerce and navigation. Also, it had decided
the violation of the treaty with regards to attack on the US only like it had done in the case of
East Tumor14. The court there held that it would not delve into the claim of Portugal, as it would
require an examination into the actions of a third party, Indonesia, which is not a party to the
dispute.15
The actions of Oran had disturbed and put in danger all the vessels in the Persian Gulf region,
this was majorly because of the Iraq -Iran conflict. But just because there was a slight chance of
danger does not prove the violation of Art X, para 1 by Iran. There existed no actual evidence

13
Art XX1, Para 2, The Treaty of Amity, 1955
14
Case concerning East Timor (Portugal v. Australia), I. C.J. Rep 1995
15
pdf

13
against Iran to prove the Breach of the treaty and therefore it rejected the counter claim put
forward by the US.

Pin Prick Theory

The court had accepted a theory in the present case. With regards to the claim of Iran against the
US, it had accused the US of breach of the treaty. US had supported its actions on basis of self
defence. However, the court could not find substantive evidence to infer that the US was indeed
under an armed attack under Art 51 but it had also said that a series of small events could
together constitute an armed attack. This is also known as accumulation of events theory.
However this is not the first time when such a theory is indicated in a decision by the court. It
had first been invented by Israel against Qibya in relation to the attacks of 1953 and later on by
the US, UK and others. It had also been mentioned in the Nicaragua case 16. This is not accepted
by the Security Council yet because of it lacking the opinio juris.

Rules Applied
The instant case is solely based on the bilateral treaty which was signed between these two
contesting states in August 1955. For examining the present case, the court thus has referred to
the same treaty and to further examine the scope of some of the provisions of the treaty, it had
referred to the UN Charter. The provisions which are used in question in the present case are Art
I, Art X, Para 1, Art XX1, para 2, Art XX, para 1(d) of the treaty and Art 51 and Art 2(4) of the
UN charter. The court has also referred to the judgment of Nicaragua case for the concept of
armed attacks and also regard the jurisdiction of the court and the admissibility of the claim.
The court had refered to East tumor case, in the third part of the judgment to justify the its non-
interference in the business of the third party, which was included in the counter claim by the
US. The court had also referred to the requirements laid down in Caroline and Mcleod case17
regarding the proportionality of the actions taken in self defence. However, the same
requirements had been reiterated in the Nicaragua case. It has also referred to the judgement of
Asylum case18 and the Corfu Channel case.19
16
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), 1986 I.C.J. 14
17
The Caroline and Mcleod Cases’, (1938) 32 AJIL 82.
18
Asylum case (Columbia v Peru), 1950 ICJ Rep., 394, 402.
19
Corfu Channel Case (United Kingdom v Albania), 1949 ICJ Rep., 4,

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Conclusion
The oil platform case has a very important role to play in the present times specially when there
are disputes like that of increasing military activities in Iraq and Afghanistan. The judgement has
been severely criticized as it did not focus much on the violation of freedom of trade and
commerce and how it is linked with armed conflict. The court did not take into considerations
many significant questions regards to the effect of trade and commerce on armed conflict. This
case had solely focused on the question of use of force and proportionality of such force.
However, the concept of proportionality had already existed, this case has given it significant
importance and has also increased its scope.

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Bibliography
Articles and Journals
UK Essays, Oil Platforms Case Study, November 2013
https://www.ukessays.com/essays/international-studies/the-oil-platforms-case.php?vref=1

James A.Green, ‘THE OIL PLATFORMS CASE: AN ERROR IN JUDGMENT?’, Journal Conflict
& Security Law (2004), Vol. 9 No. 3

Geoff Gordon, THE OIL PLATFORMS OPINION: AN ELEPHANT IN THE EYE, Amsterdam
Law Forum, VU University, Vol 1 No 2
http://amsterdamlawforum.org/article/view/70/105

Caroline EFoster, THE OIL PLATFORMS CASE AND THE USE OF FORCE IN
INTERNATIONAL LAW, Singapore Journal Of International And Comparative Law, 2003
http://www.commonlii.org/sg/journals/SGJlIntCompLaw/2003/21.pdf

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