Oil's Well that Ends Well? Critical Comments on the Merits Judgement in the Oil Platforms Case

Leiden Journal of International Law

Volumn 17, Issue 4, 2004, Pages 695-718

  Kammerhofer, Jörg ^a  

^a Mag iur (Vienna)   (United States)

Author keywords

exceptions; FCN treaties; International Court of Justice; Oil Platforms case; self defence

Indexed keywords

EID: 85009535109     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504002195     Document Type: Article

References (113)

1. Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgement of 6 Nov. 2003, at para. 1 (no published ICJ report yet, but available at http://www.icj-cij.org).
2. Oil Platforms (Islamic Republic of Iran v. United States of America), Application instituting proceedings, filed in the Registry of the Court on 2Nov. 1992, S. I, para. 1. The ‘Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran of 15 August 1955’ (284 UNTS 93) was one of a whole series of such treaties of ‘Friendship, Commerce and Navigation’ (FCN treaties) concluded by the United States with friendly states. Citations of articles without source refer to this treaty; it will be abbreviated as ‘Treaty’ or ‘1955 Treaty’.
3. Oil Platforms (2003), Oil Platforms note 1, at para. 18.
4. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgement of 12 Dec. 1996, [1996 II] ICJ Rep. 803, at 1803, para. 13.
5. Oil Platforms., at 1803, para. 13.
6. Oil Platforms., at 1820, para. 53.
7. Oil Platforms (2003), Oil Platforms note 1, at para. 22(2); Oil Platforms (Islamic Republic of Iran v. United States ofAmerica), Counter-Claim, Order of 10March 1998, [1998] ICJ Rep. 190, at 1204, para. 36.
8. See Section 6.
9. Oil Platforms (2003), Section note 1, at para. 31.
10. Oil Platforms., at para. 32.
11. Art. XXI(1)(d),Treaty of Friendship, Commerce and Navigation between the United States of America and Nicaragua, signed atManagua on 21 Jan. 1956, entered into force on 24May 1958 (hereafter 1956 Treaty).
12. 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 117, para. 225.
13. Oil Platforms (2003), Military and Paramilitary Activities in and against Nicaragua note 1, at para. 34 (emphasis added).
14. Oil Platforms., at para. 37; citing Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Judgement of 28 Nov. 1958, [1958] ICJ Rep. 62.
15. Oil Platforms (2003), Oil Platforms note 1, at para. 37.
16. Oil Platforms., at para. 37.
17. Judges Higgins, Parra-Aranguren, Kooijmans, Buergenthal and Owada in their Separate Opinions to varying degrees decry the priority given to Art. XX(1)(d) over Art. X(1).
18. Oil Platforms (2003), Parra-Aranguren note 1, Judge Parra-Aranguren, Separate Opinion, at para. 13.
19. Oil Platforms., Judge Buergenthal, Separate Opinion, at para. 6 (emphasis added); at para. 30 (Judge Koijmans, Separate Opinion).
20. Oil Platforms., Judge Higgins, Separate Opinion, at paras. 9-24; Judge Buergenthal, Separate Opinion at paras. 4-10.
21. Oil Platforms., Judge Koroma, Declaration, at para. 4; (Judge Al-Khasawneh, Dissenting Opinion, at para. 9).
22. J. Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’, (2004) 15 EJIL 523-53, at 546-7 and 551-3.
23. Oil Platforms (2003), ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’ note 1, Judge Buergenthal, Separate Opinion, at paras. 11-19.
24. Oil Platforms (1996), Oil Platforms note 4, at 1821, para. 55(2).
25. Oil Platforms (2003), Oil Platforms note 1, Judge Buergenthal, Separate Opinion, at para. 17.
26. Oil Platforms., at paras. 37-38.
27. Oil Platforms., Judge Higgins, Separate Opinion, at para. 26. Cf. also Oil Platforms. JudgeHiggins, Separate Opinion, at paras. 17-24; Judge Buergenthal, Separate Opinion, at para. 9. Judge Simma shows sympathy for this implied motive: ‘From the viewpoint of legal policy and political relevance. I therefore accept the Judgement's approach of dealing with Article XX, paragraph 1 (d), of the Treaty before turning to Article X, paragraph 1, not only for the more technical reasons advanced in the Judgement-all of which I consider convincing-, but also out of this broader consideration.’ Oil Platforms., Judge Simma, Separate Opinion, at para. 3.
28. CR 2003/12 (Translation), at para. 17.10 (emphasis in original). However, a look at Prosper Weil's whole speech on 26 Feb. 2003 shows that the citation given by Higgins is somewhat taken out of context: ‘In a word, the effect of such circumstances is not to excuse an act which would otherwise remain unlawful, but to render the act lawful.’ Oil Platforms., at para. 17.13.
29. Report of the International Law Commission on the Work of Its Fifty-third Session (23 April-1 June and 2 July-10 Aug. 2001) [A/56/10], Ch. VI:Draft Articles on State Responsibility, commentary on Art. 21 (para. 1) (emphasis added); D.W. Bowett, Self-defence in International Law (1958), 185-6.
30. H. Fuchs, Ö sterreichisches Strafrecht. Allgemeiner Teil I (1995), 129.
31. Cf. Kammerhofer, Ö sterreichisches Strafrecht note 22.
32. Oil Platforms (2003), Ö sterreichisches Strafrecht note note 1, Judge Higgins, Separate Opinion, at paras. 3-4.
33. Nicaragua (1986), Oil Platforms note 12, at 116, para. 225 (emphasis added).
34. Oil Platforms (2003), Nicaragua note 1, at para. 39.
35. Oil Platforms., at para. 40 (emphasis added).
36. Nicaragua (1986), Oil Platforms note 12, at 117, para. 224.
37. Oil Platforms (2003), Nicaragua note 1, at para. 40.
38. Oil Platforms., Judge Higgins, Separate Opinion, at para. 43.
39. Nicaragua (1986), Oil Platforms note 12, at 117, para. 224 (emphasis added).
40. Art. I reads: ‘There shall be firm and enduring peace and sincere friendship between the United States of America and Iran.’
41. Oil Platforms (1996), ‘There shall be firm and enduring peace and sincere friendship between the United States of America and Iran.’ note 4, at 815, para. 31.
42. Oil Platforms (2003), Oil Platforms note 1, at para. 40.
43. Oil Platforms., Judge Buergenthal, Separate Opinion, at para. 25.
44. Oil Platforms., at para. 41.
45. Oil Platforms., Judge Higgins, Separate Opinion, at paras. 42-50; Judge Kooijmans, Separate Opinion, at paras. 22-25 (although see paras. 47-52, where he shows qualified support for the Court's position); Judge Buergenthal, Separate Opinion, at paras. 20-32; Judge Owada, Separate Opinion, at paras. 29-40.
46. Oil Platforms (2003), Oil Platforms note 1, Judge Buergenthal, Separate Opinion, at para. 22.
47. Oil Platforms. Judge Buergenthal, Separate Opinion, at para. 28.
48. Military and ParamilitaryActivities in and againstNicaragua (Nicaragua v. United States ofAmerica), Jurisdiction, Judgement of 26 Nov. 1984, [1984] ICJ Rep. 392, at 424-5, para. 73.
49. Oil Platforms (2003), Military and ParamilitaryActivities in and againstNicaragua note 1, Judge Higgins, Separate Opinion, at para. 47.
50. Oil Platforms., Judge Higgins, Separate Opinion, at para. 46; CR 2003/12, at para. 17.26.
51. Oil Platforms (2003), Oil Platforms note 1, Judge Kooijmans, Separate Opinion, at para. 47; Judge Al-Khasawneh, Dissenting Opinion, at para. 9.
52. CR 2003/12 (Translation), at para. 17.22.
53. ‘A clause in a commercial treaty cannot possibly be invoked to justify the use of force’. Oil Platforms (2003), (Translation) note 1, Judge Elaraby, Dissenting Opinion, at para. 1.1.6. Judge Elaraby is right, but Art. XX(1)(d) does not purport to justify force.
54. Oil Platforms (2003), ‘A clause in a commercial treaty cannot possibly be invoked to justify the use of force’ note 1, Judge Higgins, Separate Opinion, at para. 41 ('no travaux pré paratoires exist to sustain this').
55. Oil Platforms. Judge Simma, Separate Opinion, at paras. 6, 9; Judge Rigaux, Separate Opinion, at para. 19.
56. Nicaragua (1986), Oil Platforms note 12, at 117, para. 224.
57. ‘Three indeterminate or relatively undetermined concepts. : “necessary to protect”, vital interest (or essential interest), pertaining to the “security” of the state’. Oil Platforms (2003), Nicaragua note 1, Judge ad hoc Rigaux, Separate Opinion, at para. 16 (my translation: the published version of the judgement will contain an official translation).
58. ‘Three indeterminate or relatively undetermined concepts. : “necessary to protect”., Judge Kooijmans, Separate Opinion, at para. 44.
59. ‘Three indeterminate or relatively undetermined concepts. : “necessary to protect”., Judge Buergenthal, Separate Opinion, at para. 37.
60. ‘In all these cases the law to be applied only provides a margin [or frame], within which there is more than one possibility of application. If “interpretation” is to be understood as epistemic ascertainment of the meaning of the object to be interpreted, the result of a legal interpretation can only be the ascertaining of a margin [or frame] (which is the law to be interpreted) and thus the cognizance of multiple possibilities [of meaning], which are possible within the margin [or frame].’ H. Kelsen, Reine Rechtslehre (1960), 348-9 (my translation).
61. See J. Kammerhofer, ‘The Binding Nature of ProvisionalMeasures of the International Court of Justice: The “Settlement” of the Issue in the LaGrand Case’, (2003) 16 LJIL 67-83, at 77-8.
62. In the judgement, the sinking of the Sea Isle City was disqualified from constituting an ‘armed attack’ on several grounds. The Respondent was not able to prove that the attack was attributable to Iran, she was in Kuwaiti waters at the time of the attack (thus the attacked entity would have been Kuwait), Silkworm antiship missiles cannot be aimed so as to hit a specific vessel; even taken together with other attacks alleged to have been carried out by the Applicant, the Court doubts that these could have fulfilled the ‘gravity’ requirement of Art. 51 UN Charter (Oil Platforms (2003), ‘The Binding Nature of ProvisionalMeasures of the International Court of Justice: The “Settlement” of the Issue in the LaGrand Case’ note 1, para. 64). The Court does not refute the implication it establishes earlier, namely that if a civilian vessel were sunk on the high seas it might constitute an armed attack (leaving aside the gravity requirement), which is contrary to the orthodoxy as I understand it.
63. D. Raab, ‘“Armed Attack” after the Oil Platforms Case’, this issue, 719-735.
64. Nuclear Tests (Australia v. France), Judgement of 20 Dec. 1974, [1974] ICJ Rep. 253, at 269-70, paras. 51-52; Nuclear Tests (New Zealand v. France), Judgement of 20 Dec. 1974, [1974] ICJ Rep. 457, at 474-5, paras. 53, 55. The finding is surprising, because the Respondent did not rely on the statements (indeed, it did not appear before the Court), nor can I see any intention of being bound in the statements cited by the Court.
65. ArrestWarrant of 11 April 2000 (Democratic Republic of the Congo v. France), Judgement of 14 Feb. 2002, [2002] ICJ Rep. 3; J.Wouters, ‘The Judgement of the International Court of Justice in the ArrestWarrant Case: Some Critical Remarks’, (2003) 16 LJIL 253-67, at 263. I amindebted to André de Hoogh for this example.
66. ‘[T]he Court did not let itself be blocked by formal and formalist obstacles. It has pierced the veil of the dispute.’ Oil Platforms (2003), ArrestWarrant of 11 April 2000 note 1, Vice-President Ranjeva, Declaration, at para. 3 (my translation).
67. ‘penetration to the heart of the dispute’. ‘[T]he Court did not let itself be blocked by formal and formalist obstacles.,Vice-President Ranjeva, Declaration, at para. 4 (my translation).
68. Bruno Simma's Charter commentary can rightly be called a restatement of that orthodoxy, as far as the ius contra bellum is concerned. B. Simma (ed.), TheCharter of theUnitedNations.ACommentary (2002). (Note: I shall refer below to Judge Simma as ‘Bruno Simma’ or ‘Simma’ where I have taken his views published before he was elected to the Court. This ismerely a temporal distinction and does not reflect any lack of respect onmy part for a most distinguished international lawyer.)
69. See, e.g., Bruno Simma's Charter commentary can rightly be called a restatement of that orthodoxy, as far as the ius contra bellum is concerned note 62.
70. Oil Platforms (2003), Bruno Simma's Charter commentary can rightly be called a restatement of that orthodoxy, as far as the ius contra bellum is concerned note note 1, at para. 51; citing Nicaragua (1986), Bruno Simma's Charter commentary can rightly be called a restatement of that orthodoxy, as far as the ius contra bellum is concerned note note 12, at 103, para. 195. In its most recent advisory opinion of 9 June 2004, the Court again reaffirmed that the presence of an armed attack is a necessary condition for the lawful exercise of the right of self-defence. It also confirmed that the right of self-defence under Article 51 UN-Charter is confined to inter-state relations. Thus, the ‘orthodox view’ can now be considered jurisprudence constante. Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory, Advisory Opinion of 9 June 2004, at paras. 138-139 (n ICJ Report yet, available at http://www.icj-icj.org). Several judges did not share the Court's view, in particular on the inter-state character of the right of self-defence in international law (Bruno Simma's Charter commentary can rightly be called a restatement of that orthodoxy, as far as the ius contra bellum is concerned note., Judge Higgins, Separate Opinion, at paras. 33-34; Judge Kooijmans, Separate Opinion, at paras. 35-36; Judge Buergenthal, Declaration, at paras, 4-6).
71. Early post-1945 jurists, primarily Anglo-Americans, had denied the necessity: D. W. Bowett, Self-defence in International Law (1958), 187-8; H.-G. Franzke, Schutzaktionen zugunsten der Staatsangehörigen im Ausland als Ausfluss des Rechts auf Selbstverteidigung der Staaten (1965), 133-4; M. S.McDougal and F. P. Feliciano, Law and Minimum World Public Order (1961), 232-41; S. M. Schwebel, ‘Aggression, Intervention and Self-defence in Modern International Law’, (1972) 136 Recueil des cours 411, at 479-480; C. H. M.Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, [1952] 81 Recueil des cours 455, at 496-8.
72. A. Verdross and B. Simma, Universelles Völkerrecht (1984), 240, para. 472; see also G. Dahm, ‘Das Verbot der Gewaltanwendung nachArt. 2(4) derUNO-Charta und die Selbsthilfe gegenü berVölkerrechtsverletzungen, die keinen bewaffneten Angriff enthalten’, (1962) 11 Jahrbuch fü r Internationales Recht 48, at 50, 56-7.
73. Oil Platforms (2003), Universelles Völkerrecht note 1, Judge Simma, Separate Opinion, at para. 12.
74. The other exceptions under Arts. 53, 107 (and possibly 106)UNCharter are not even theoretically applicable to the present construct.
75. Nicaragua (1986), The other exceptions under Arts note 12, at 110-11, paras. 210-211.
76. Nicaragua., at 110, para. 210 (emphasis added).
77. J. L. Hargrove, ‘The Nicaragua Judgement and the Future of the Law of Force and Self-defense. Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits)’, (1987) 81 AJIL 135, at 138; Y. Dinstein,War, Aggression and Self-defence (2001), 175, for whom the dictum remains ‘baffling’.
78. Nicaragua (1986), ‘The Nicaragua Judgement and the Future of the Law of Force and Self-defense note 12, at 110, para. 210.
79. Oil Platforms (2003), Nicaragua note 1, Judge Simma, Separate Opinion, at para. 12, citing Nicaragua (1986), Nicaragua note 12, at 127, para. 249.
80. Nicaragua (1986), Oil Platforms note 12, at 110, para. 211.
81. Nicaragua., at 127, para. 249 (emphasis added).
82. The International Law Commission agrees: Articles on State Responsibility (2001), Art. 50(1)(a).
83. A. Randelzhofer, ‘Article 51’, in Simma, The International Law Commission agrees: Articles on State Responsibility note 68, 788, at 791, n. 7.
84. ‘We can see from this that there are other defensive measures against acts of force or other unlawful acts besides the defensive measures under Article 51 [UN Charter], which are not prescribed by the prohibition on the use of force in Art. 2, para. 4 [UN Charter]’. Verdross and Simma, ‘Article 51’ note 72, at 240, para. 472 (second emphasis added, my translation).
85. Such an argumentmust perish on the rocks that are the text of Art. 2(4) of the UN Charter.
86. Oil Platforms (2003), Such an argumentmust perish on the rocks that are the text of Art note 1, Judge Simma, Separate Opinion, at para. 6.
87. Oil Platforms., at para. 82 (emphasis added). See below for criticism of this limitation.
88. Oil Platforms (1996), Oil Platforms note 4, at 820, para. 51.
89. Oil Platforms (2003), Oil Platforms note 1, at para. 89.
90. Oil Platforms (1996), Oil Platforms note 4, at 819, para. 50; Oil Platforms (2003), Oil Platforms note 1, at para. 83.
91. Oil Platforms (2003), Oil Platforms note 1, at para. 90.
92. Oil Platforms., at para. 94.
93. Oil Platforms., at para. 97.
94. Oil Platforms., at para. 97.
95. Oil Platforms., at para. 99.
96. Oil Platforms., at para. 120.
97. The frigate USS Samuel B. Roberts. Oil Platforms., at para. 120(i).
98. Oil Platforms., at para. 123.
99. See Section 6, infra.
100. See Oil Platforms (2003), Section 6 note 1, Judge Al-Khasawneh, Dissenting Opinion, at paras. 3-6; Judge Elaraby, Dissenting Opinion, at paras. 2.1-2.4; Judge Simma, Separate Opinion at paras. 17-58, Judge Rigaux, Separate Opinion, at paras 4-13, 20-30.
101. Oil Platforms., Judge Al-Khasawneh, Dissenting Opinion, at para. 6.
102. Oil Platforms., Judge Elaraby, Separate Opinion, at para. 2.2 (emphasis added). This group of judges cites Oscar Chinn (Belgium v. United Kingdom), Judgement of 12 Dec. 1934, PCIJ Reports Ser. A/B No. 63.
103. Oil Platforms (2003), Oil Platforms note, 1 Judge Al-Khasawneh, Dissenting Opinion, at para. 4.
104. Oil Platforms., Judge Simma, Separate Opinion, at para. 29.
105. Oil Platforms., Judge Elaraby, Dissenting Opinion, at para. 2.4.
106. Oil Platforms (2003), Oil Platforms note 1, at para. 123.
107. Oil Platforms., Judge Simma, Separate Opinion, at paras. 35-58.
108. Oil Platforms., at paras. 59-83.
109. Judges Al-Khasawneh and Elaraby on para. 125(1) and Judge Simma on para. 125(2). Oil Platforms., at para. 125.
110. Judges Al-Khasawneh and Elaraby on para., at para. 37.
111. Judges Al-Khasawneh and Elaraby on para., Judge Simma, Separate Opinion, at introduction.
112. Judges Al-Khasawneh and Elaraby on para., Judge Kooijmans, Separate Opinion, at para. 30 (emphasis added).
113. W. Shakespeare, All'sWell that EndsWell, Act 2 Scene 1.