‘Armed Attack’ after the Oil Platforms Case

Leiden Journal of International Law

Volumn 17, Issue 4, 2004, Pages 719-735

  Raab, Dominic ^a  

^a British Embassy   (United States)

Author keywords

International Court of Justice; Iran; maritime; United States; armed attack

Indexed keywords

EID: 31444455954     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504002201     Document Type: Article

References (32)

1. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement of 27 June 1986, [1986] ICJ Rep. 14, at 116, para. 222.
2. Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgement of 6 November 2003 (not yet published), para. 37.
3. Oil Platforms case, Oil Platforms note 2,Merits, 2nd introductory para. (Judge Simma, Separate Opinion).
4. Oil Platforms case., para. 2 (Judge Simma, Separate Opinion).
5. Oil Platforms case., para. 3 (Judge Simma, Separate Opinion).
6. UN Doc. A/58/PV.7 (2003).
7. Oil Platforms case, UN Doc note 2, para. 3 (Judge Kooijmans, Separate Opinion).
8. Oil Platforms case., para. 51.
9. Oil Platforms case., para. 64.
10. See also Arts 1 and 2 and the chapeau of Art. 3 of the UNGA Definition of Aggression.
11. See, e.g., R. Higgins, Problems and Process (1994), 251.
12. Brownlie, e.g., argues that gravity is relevant only to the proportionality of the response to a particular attack rather than the scope of what constitutes an ‘armed attack’, I. Brownlie, International Law and the Use of Force by States (1963), 366. See also Higgins, Problems and Process note 12; D. Fleck, ‘Rules of Engagement forMaritime Forces and the Limitation of the Use of Force under the UN Charter’, (1988) 31 German Yearbook of International Law 165, at 177; and idem, The Handbook of Humanitarian Law in Armed Conflicts (1995), 2, where it is noted that the ‘gravity’ threshold test, in the Nicaragua case, is confined to consideration of whether ‘terrorist or irregular operations’ constitute an armed attack. See also the discussion of ‘gravity’ in Y. Dinstein,War, Aggression and Self-Defence (2001), 173-6.
13. Art. 2 of theUNGADefinition ofAggression provides, ‘The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’
14. Oil Platforms case, Art. 2 of theUNGADefinition ofAggression provides note 2, para. 64.
15. Oil Platforms case., para. 38.
16. Examples include the Treaty of Friendship, Co-operation and Mutual Assistance, 1955, between the USSR, Albania,Bulgaria,Hungary, theGermanDemocraticRepublic, Poland,Romania, and Czechoslovakia (known as the ‘Warsaw Pact'), 219 UNTS 3, 24; and the Treaty of Mutual Co-operation and Security, 1960, between the United States and Japan.
17. See Brownlie, Examples include the Treaty of Friendship note 13, at 305; Fleck (1995), Examples include the Treaty of Friendship note 13, at 2; V. Lowe, ‘Self-Defence at Sea’, inW. E. Butler (ed.) The Non-Use of Force in International Law (1989), at 189; and D. Bowett, Self-Defence in International Law (1958), 71. However, note Dinstein, Examples include the Treaty of Friendship note 13, at 180, who excludes from the definition attacks against a single or few commercial vessels.
18. C. Gray, ‘The British Position with Regard to the Gulf Conflict (Iran-Iraq): Part 2’, (1991) 40 International and Comparative Law Quarterly 464, at 469.
19. Art. 91(1) of the United Nations Convention on the Law of the Sea 1982 provides that ‘Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the Statewhose flag they are entitled to fly. There must exist a genuine link between the State and the ship.’
20. This particular aspect of the US claim of self-defence was considered in some detail by Nordquist and Wachenfeld, who concluded that ‘the vagueness of the genuine link language in multilateral conventions gives nations considerable discretion to apply the concept to suit their own policy objectives as long as the domestic implementation meets certain minimum international standards’. M. Nordquist and M. Wachenfeld, ‘Legal Aspects of Reflagging Kuwaiti Tankers and Laying of Mines in the Persian Gulf’, (1988) 31 German Yearbook of International Law 138, at 139. The Court in the Oil Platforms case did not address the question of whether US implementation of such minimum international standards was adequate.
21. UN Doc. A/RES/56/83 (2002).
22. Bowett, UN Doc note 18, at 104.
23. Oil Platforms case, UN Doc note 18 note 2, para. 64.
24. Oil Platforms case., para. 72.
25. See Fleck (1995), Oil Platforms case note 13, at 2; Lowe, Oil Platforms case note 18, at 185; Bowett, Oil Platforms case note 18, at 71; and Dinstein, Oil Platforms case note 13, at 179.
26. Brownlie, Oil Platforms case note 13 note 13, at 305.
27. See also Art. 9 of the Inter-American Treaty of Reciprocal Assistance 1947, which provides that an attack against ‘the people’ of a statemay constitute an armed attack.
28. Bowett, also Art note 18, at ch. V, supports the view that the right of self-defence extends to the protection of nationals. Fleck agrees, also Art note 18. Dinstein agrees under certain conditions, also Art note 13, 203-7. Lowe, also Art note 18, at 195, notes the growing support among states for such a rule, whilst doubting that a rule to this effect has yet emerged. Gray notes that opinions are divided on thematter, C. Gray, International Law and the Use of Force (2000), 109.
29. Oil Platforms case, also Art note 18 note 2, at 2 (Judge Elaraby, Separate Opinion).
30. Oil Platforms case., para. 6 (Judge Simma, Separate Opinion).
31. Oil Platforms case., 2nd introductory para. (Judge Simma, Separate Opinion).
32. See the reference to the debate on the limits on the use of force, Oil Platforms case., at para 6 (Judge Simma, Separate Opinion).