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(On an International Scale): the Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States

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(On an International Scale): the Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 30 Number 2 Article 2 Winter 2004 Destruction of Property (on an International Scale): The Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States Stewart M. Young Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Recommended Citation Stewart M. Young, Destruction of Property (on an International Scale): The Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States, 30 N.C. J. INT'L L. 335 (2004). Available at: https://scholarship.law.unc.edu/ncilj/vol30/iss2/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Destruction of Property (on an International Scale): The Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States Cover Page Footnote International Law; Commercial Law; Law This article is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol30/ iss2/2 Destruction of Property (on an International Scale): The Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States* Stewart M. Young' ABSTRACT This Article examines the recently decided Oil Platforms case announced by the International Court of Justice (ICJ). It remarks on the internal inconsistencies and problems associated with the Court's holding. The ICJ's holding inconsistently applies the traditional "use of force" doctrine as applied in other cases decided by the Court, thereby providing evidence of other factors at work in the Court's decision. Indeed, an analysis of the holding, along with an examination of the several separate opinions, exhibits the ICJ's desire to reprimand the United States for its current actions in Iraq and its fundamental misunderstanding of the "proper" use of force. This Article also contributes to the scholarship on the developing role of the ICJ and provides commentary on international tribunals playing a quasi-political role in international affairs. * The Social Science Research Network (SSRN) placed this Article on its "Top Ten List" of papers authored by young scholars, as of July 10, 2004. t Law Clerk, Hon. Jay S. Bybee, U.S. Court of Appeals, Ninth Circuit, 2004-2005. J.D., Stanford University Law School, 2004; M.A., Waseda University, 2002; B.A., Princeton University, 2000. I am greatly indebted to Michael Matheson, Sean Murphy, and Allen Weiner for their generous advice and insight, to Thomas Grey and Barbara Fried for their invaluable comments and conversations in the Legal Studies Colloquim, and to Michael Young for everything else. All errors are not attributable to any of those mentioned above, and are solely my responsibility. N.C. J. INT'L L. & COM. REG. [Vol. 30 TABLE OF CONTENTS 1. Introduction ........................................................................ 337 II. Commentaries on the "Use of Force" and the Oil P latforms C ase ................................................................... 339 III. Events Leading Up to the Conflict in the ICJ .................... 344 A. General Iranian-U.S. Relations ................................. 344 B. Events Leading to the Destruction of the Oil Platform s ................................................................... 345 IV. The ICJ Procedure and Holding in the Oil Platforms C ase .................................................................................... 34 7 A. The Initial Filing and Jurisdictional Concerns .......... 347 B. The Judgment of November 6, 2003 ........................ 348 1. The Initial Look at the Counterclaims ...................... 349 2. Investigating the Jurisdictional Issues ...................... 350 3. The Underlying Self-Defense Argument .................. 351 4. Reevaluating Jurisdiction Under the Self-Defense C laim ............................................................... 352 C. Looking at Specifics in the Self-Defense Exception 353 1. Evidence Surrounding the October 19, 1987 Attack 354 2. Evidence Surrounding the April 18, 1988 Attack ..... 356 3. Necessity and Proportionality in Self-Defense ......... 358 D. Judgment on Iran's Claims ....................................... 361 1. Commercial Aspects of the Oil Platforms ................ 362 2. U.S. Counter-Argument Against Commerce ............ 363 3. Iran's Argument Regarding Commerce .................... 363 E. Judging the U.S. Counterclaims ............................... 365 F.The Final Judgm ent ......................................................... 366 V. The ICJ's Commentary on Current U.S. Actions and Further Examination of the Oil Platforms Case ................. 367 A. The Court's Decision on Article XX(l)(d) D efenses .................................................................... 367 B. A Noted "Lack of Evidence" and Operational C oncerns ................................................................... 371 C. The Court's Holding on the "Necessity" and "Proportionality" Defenses ....................................... 374 D. Raising Questions About the ICJ and Its Role in the International Community .......................................... 375 V I. C onclusion .......................................................................... 376 2004] OIL PLATFORMS CASE & THE ICJ I. Introduction In the fall of 2003, the ICJ 1 decided the Oil Platforms case, 2 a highly contentious, eleven year-old case relating to the use of force, self-defense, and the permissibility of retaliation measures. In this case, the Court examined the legality of both the military actions taken by the government of Iran and the American military responses to those actions. The gravamen of Iran's complaint to the ICJ was that U.S. forces shelled two off-shore Iranian oil platforms, destroying them both on October 19, 1987,4 and then attacked an additional offshore oil complex on April 18, 1988.' The United States countered that Iran had been using the oil platforms as a base from which to launch missiles against American vessels legitimately sailing in international waters.6 The Iranian complaint, filed on November 2, 1992, four years after the attacks, claimed a dispute "arising out of attack [on] and destruction of three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company... on 19 October 1987 and 18 April 1988, respectively."7 The United States responded and, from 1992 to I The International Court of Justice will be referred to as "the Court" or "the ICJ" throughout this paper. 2 Oil Platforms (Iran v. U.S)., (Judgment of Nov. 6, 2003), available at http://www.icj-cij.org/icjwww/idocket/iop/iopjudgment/iop-ijudgment_20031106.PDF (last visited Oct. 27, 2004). The ICJ had already made a determination on its jurisdiction to hear the case, which is often referred to as one of the other "decisions" of the ICJ in the Oil Platforms case. Oil Platforms (Iran v. U.S)., 1996 I.C.J. 803 (Nov. 12) (Preliminary Objection Judgment), available at http://www.icj-cij.orglicjwww/idocket/ iop/iop-isummaries/iopisummary_19961212.htm (last visited Oct. 27, 2004) [hereinafter Preliminary Objection Judgment]. 3 Oil Platforms, supra note 2. 4 45 CONG. Q. WEEKLY REP. 2597 (1987); see also Patrick D. Robbins, The War Powers Resolution After Fifteen Years: A Reassessment, 38 AM. U. L. REv. 141, 168-69 (1988) (discussing some of the events setting the destruction of the oil platforms into motion). 5 Press Release 2003/38, I.C.J., Oil Platforms (Iran v. U.S)., Decision of the Court (Nov. 6, 2003), available at http://www.icj-cij.org/icjwww/ipresscom/ipress2003/ ipresscom2003-38_op-20031106.htm (last visited Oct. 27, 2004). 6 Oil Platforms (Iran v. U.S). (Preliminary Objections of the United States, Annex I), at http://www.icj-cij.org/icjwww/idocket/iop/ioppleadings/iop-ipleadings-l9931216 _preobj.us_05.pdf (Dec. 12, 1993). 7 Preliminary Objection Judgment, supra note 2, at 804. Most of the litigation by the Iranian government was driven by the National Iranian Oil Company, which had a N.C. J. INT'L L. & COM. REG. [Vol. 30 2003, the parties filed numerous motions and pleadings before the Court. The case was finally argued in February 2003 and decided in October 2003.8 The Court's ultimate decision is highly important not only for the apparent limits it places on the doctrine of self-defense, the use of force, and the role of treaties in defusing military relations between countries, but, perhaps, even more important for the significant procedural advances the Court made in this decision. For the first time in the Court's history, the ICJ entertained the use of counterclaims by both parties in the pleadings, leading other countries, such as Yugoslavia, to file their own counterclaims in their respective unrelated ICJ litigation.9 Now, the Court has issued "orders... on the standards by which counterclaims could proceed before the [International] Court,"1° a development that will undoubtedly change the structure and nature of litigation before the ICJ in virtually every case to come before it in the future. Part II of this Article discusses the recent international legal scholarship
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