Discuss about International Business and Enterprise for Magnanimous Legal Discontent.
The Oil platform case involving the Islamic republic of Iran and the United States is one that aroused a magnanimous legal discontent in various jurisdictions. This paper is poised to discuss the key facets of the arguments that were evinced by the Islamic Republic of Iran which was the claimant in this case.
In 1987 the United States Navy attacked Iranian oil platforms in the Persian Gulf with their guided- missile destroyers that caused an irreparable damage leading to the oil production being brought to an end indefinitely. The United States claimed that the attack was a precipitate of an attack ostensibly held to have been made by the Iranians on Kuwait. In 1988 the Americans made another grisly attack in Nassir and Salman oil platforms which up to date have not resumed operations. The United States antagonistically asserted that the attacks were motivated by the necessity to protect essential security interests and that they were acting in self-defence. Pursuant to the incongruous, outlandish, and unfortunate nature of the actions of the United States, the Islamic Republic of Iran launched a claim against the United States at the International Court of Justice (ICJ).
The issue that was in contention and up for determination by the court was
- whether the United States’ actions of attacking and destroying the oil platform in Iran violated of the 1955 Treaty of Amity, Economic Relations and Consular Rights.
- whether the United States offended the overarching principle of use of force underpinned by International law.
The facts in issue above triggered the well settled principle of the use of force and proportionality of a states force in response to an attack in international law. The general position is that states are obligate to refrain from the use of force against the territories of other states in breach of their political independence (UN Chatter Article 2(4)) However, it bears noting that the use of force may be permitted in circumstances where the state is acting in self defense of another attack (UN Chatter Article 51). These principles have since gained the force of customary international law. (Nicaragua v The United States of America 1986)
The other applicable law that was triggered and applied by the Islamic Republic Iran here is the application of the 1955 Treaty of Amity, Economic Relations and Consular Rights that the two states are a party to. The treaty states that there should be freedom of commerce between party states (Treaty of Amity Article X) It has also been stated that a State party may take necessary measures to ensure international peace and other measures that may be necessary to protect its essential security interest(Article XX (1d)). The treaty also acknowledges that the state parties should promote firm and endure sincere friendship (Treaty of Amity Article 1)
a) Argument on Use of Force and Self-Defense
It was the argument of the Islamic Republic of Iran that the use of force by the United States Navy was in contravention to Article 2(4) of the UN Chatter. They objected the argument that the United States was justified in invoking the right to self defense under international law. They argued that for the self defense to have been justified it must have been in response to an unlawful act rather than a lawful one. They contended that the United States had applied self defensive on measures that were lawful contrary to what was set in the Nicaragua case. In addition , the United states was required to seek the assistance of the Iran which is the victim in this case and if the response is not made then it could regarded as a violations of their rights and the self defense would have been justified.
It was also argued that there was no real or imminent danger to the United States that ignited the necessity to respond by use of force in the pretext of a self defense. It was therefor Iran’s submission that there was no necessity to act using such force in those circumstances. They noted that the legality of the right to self defense was well entrenched in the celebrated case of Caroline (1837). It was submitted that the use force by the United States was not in proportion to the necessities of the particular circumstance of the alleged prior attack. Although the United States claimed that it was acting in self defense, it was argued that the degree and form of measures taken and the target that the self defense measures were applied to were out of proportion (Security Council Resolutions 7598 (1966)).
The Islamic Republic of Iran further stated that it had no contention in regards to the fact that United States reported the measures taken to the Security Council as required by article 51 of the UN Chatter. It was brought to the attention of the court that, in fact, the measures taken by the United States could not be defined as a self defense but are regarded as an unlawful reprisal. It defined a measure of self defense as a one that aims to protect which was in contract to the reprisals that are aimed to punish and or wrong committed (Bowett 1972). It was also argued that the response was a premeditated plan of actions and it has been stated in the Corfu Channel case judgment that a premeditated and pre planned measure, where it is carried out as planned ceases to protective and cannot amount to a self defense measure (Corfu Channel Merits Judgment, 1949).
It was submitted that the united states were not in a proper position to argue that the measures were necessary to protect its essential security interest as required in Article XX (1d). The actions of the United States were a prima facie breach of the treaty and the use of force went beyond the threshold set for a lawful self defense. The Republic of Iran went on to argue that United States could not invoke the provisions of Article XX (1d) to justify a breach of the obligation that has been bestowed upon them by Article 2(4) of the UN Chatter.
b) Argument on generation of active commerce between Iran and the United States
Article X of the Treaty of Amity obligates the parties that in their in any measures they undertake they should ensure that they generate an active commerce between them. The State of Iran sought the guidance of the Nicaragua case where it was held that the destruction of the mining ports in Nicaragua by the Unites States was in breach of the freedom of active commerce as was guaranteed by the 1956 treaty. It was thus the argument of Iran that the attack on the mining activities in the oil platforms was an obstacle and a hindrance to the free navigation of commerce activities. They further argued that the attacks on the petroleum installation was a barred the commercial exploitation of its natural resources.
It was also noted that Iran had specific contracts it had entered into for the supply of petroleum and the contracts were them frustrated rendering it impossible for them to fulfill their commercial obligation to other states and therefore they could not enjoy the freedom of commerce provisions in the treaty. It was noted in their submissions that the oil production storage and transportation were all destroyed and therefore the fundamental economic and commercial activities entirely ceased to operate.
c) Arguments for Breach of Article IV (1)
Article IV (I) obligates the parties to the treaty to accord fair and equitable treatment to the nationals and companies of other member states and to their properties and any other enterprises. In doing the treaty obligates the states to refrain any unreasonable measures that will negatively impact on the property of other nationals. It was the argument of the Republic of Iran that the United States had entirely breached this provision through the attacks they made that caused damages that had devastating effects. It was submitted that where a state is acting outside its territories, it should be guided by the aforementioned provisions where it is about to exert state powers the property of the other state within its territory.
The use of force by United States was also argued to be in breach of this provisions and the treaty declares such measures as unreasonable and discriminatory measures to all intents and purposes. The attacks offended the principle of fair and equitable treatment in the above provision. From the above arguments, Iran was sufficiently certain that the measure that was applied by the United States was whole an unlawful measure and even if it is a lawful measure where it is excessive and extreme it becomes in violation of Article IV (I). Iran submitted that the complete destruction of an economic activity that is beneficial and dependable to a state economy is the perfect definition of a conduct that is unfair, unjust and inequitable.
d) Remedies sought By Islamic Republic of Iran
It is a general principle in international law that the breach of an international law obligation involves the party that has caused the breach to adequately make reparations (Factory at Chorzow, Judgment 1927) The republic of Iran thus requested for a declaration be made that the united states violated the treaty of Amity. It was argued that the declaration of illegality perpetrated by the United States was necessary as remedy because of the gravity of the illegal measures that the United States had pursued. It was argued that this form of reparation was recognized by international law tribunal and courts alike. In the case of New Zealand against France (1990) the tribunal ordered reparation in the form of a declaration be made against France which was in breach of its international obligation.
The Republic of Iran also made a request for an award of compensation from the United States. This is flows from the fact that the attacks and destructions that were made affected the economic interest of Iran. In the case of the Diplomatic and Consular Staff (1980) the court held that where it is found that a state is liable causing injury to another state it is prudent that an award of compensation be made against that state. It was argued by Iran that the compensation must be in monetary terms and it therefore claimed for compensation for the damages that were caused by the destruction of the oil platforms, the cost of replacements and the costs for reconstruction. The republic of Iran also made request for compensation for the loss of life of the personnel that was working at the oil platform and the injuries that others suffered.
Judgment and conclusion
The International court of justice took a controversial approach that aroused a magnanimous legal discontent in the legal fraternity. The court held that the United States was in breach of the threshold required for the use of force in self defense and was therefore in violation of international law. The court also held that the United States did not provide sufficient evidence to prove that Iran made an armed attack and therefore their response which was under the guise of a self defense was unwarranted and unnecessary. The requirement of necessity and proportionality in the use of force are principles that have been well affirmed and exemplified by the court in this case. The oil Platform case in general is an educative case that echoes principles of international law that are vital in the modern day with the emerging military activities in the Middle East and Afghanistan.
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