1 Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, U.S.-Iran, 8 UST 899, 284 UNTS 93 (entered into force June 16, 1957) [hereinafter Treaty]. Article XXI(2) provides: “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.”

2 In connection with the 1979–1980 Hostages case, Iran had denied that the Treaty, which had been invoked as a partial basis of jurisdiction along with other conventions, was still in force, and it refused to participate in the proceedings. The Court’s 1980 Judgment held Iran responsible for violating a series of obligations under international conventions in force between the two countries, including the Treaty, as well as rules of general international law (especially those regarding the treatment of diplomatic and consular representatives). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 ICJ Rep. 3 (May 24).

3 Oil Platforms (Iran v. U.S.), Preliminary Objection, 1996 ICJ Rep. 803, 811, para. 20, 820, para. 51, & 821, para. 55(2) (Dec. 12) [hereinafter Preliminary Objection Judgment]; Bekker, Pieter, Case Report: Oil Platforms (Iran v. U.S.), Preliminary Objection, in 91 AJIL 518 (1997)Google Scholar. Article X (1) of the Treaty, supra note 1, reads: “Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.”

4 Oil Platforms (Iran v. U.S.), Counter-Claim, 1998 ICJ Rep. 190 (Mar. 10) (holding counterclaim admissible by 15–1 (Rigaux, J. ad hoc, appointed by Iran, dissenting)).

5 Oil Platforms (Iran v. U.S.), Merits, para. 125 (Int’l Ct. Justice Nov. 6, 2003), 42 ILM 1334 (2003) [hereinafter Judgment].

6 Judgment, supra note 5, paras. 23–24, 26; see also id., Separate Opinion of Judge Kooijmans, paras. 5–11.

7 Judgment, supra note 5, para. 25. In both instances, the United States gave notice of its action to the UN Security Council in reliance on Article 51 of the UN Charter. Id., paras. 48, 62. Article 51 confirms “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations” and requires immediate reporting to the Security Council.

8 Id., para. 35. Article XX(1)(d) of the Treaty, supra note 1, provides: “The present Treaty shall not preclude the application of measures: . . . (d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.”

9 Judgment, supra note 5, paras. 32–39. In the Nicaragua case, the ICJ first dealt with the substantive provisions of the applicable commerce treaty before turning to the equivalent of Article XX(1) (d). Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 116, para. 222, & 140, para. 280 (June 27). Judges Higgins, Kooijmans, and Buergenthal especially took issue with the inclusion of the Court’s conclusion regarding Article XX(1) (d) of the Treaty (described as a defense in the Preliminary Objection Judgment, supra note 3, at 811, para. 20) in the Judgment’s operative paragraph, pointing out that it should have remained part of the reasoning, as Iran’s final submissions had not asked the Court to adjudicate that issue. This approach prompted Judge Buergenthal to state boldly that “the Court’s pronouncement on the issue not raised in the submissions of the Parties is not a statement entitled to be treated as an authoritative statement of the law applicable to the actions of the United States.” Judgment, supra note 5, Separate Opinion of Judge Buergenthal, para. 9.

10 Preliminary Objection Judgment, supra note 3, para. 20.

11 Judgment, supra note 5, para. 40.

12 Id., para. 41. For the Convention, opened for signature May 23, 1969, see 1155 UNTS 331 (entered into force Jan. 27, 1980).

13 Judgment, supra note 5, paras. 39–41.

14 Id., para. 41.

15 Id., paras. 43, 74.

16 Id., para. 51.

17 Id., para. 73. Judges Kooijmans, Buergenthal, and Owada argued in favor of allowing a reasonableness test in this context. See id., Separate Opinions of Judges Kooijmans, paras. 43–45, 50, 52; Buergenthal, paras. 37–42; Owada, para. 35. The ICJ also disapprovingly referred to the fact that the Reshadat platform, which the United States attacked in October 1987, was “ ‘a target of opportunity’, not one previously identified as an appropriate military target.”Judgment, supra note 5, para. 76.

18 Judgment, supra note 5, paras. 48, 74.

19 Id., paras. 54–55.

20 Id., paras. 58–64.

21 Id., para. 68.

22 Id., para. 70.

23 The evidence presented by the United States was mostly circumstantial, relying heavily on the discovery of moored mines bearing Iranian serial numbers in the same area where the USS Samuel B. Roberts had struck a mine. Id., paras. 69, 71. No evidence established the military function of the Nasr and Salman platforms. Id., para. 76.

24 Id., para. 72.

25 Id., para. 77.

26 Id., para. 78.

27 Id., para. 79.

28 Id., paras. 82–83.

29 Id., paras. 85–86.

30 Preliminary Objection Judgment, supra note 3, para. 50.

31 Judgment, supra note 5, para. 87.

32 Id., para. 89.

33 Id.

34 Id., para. 86.

35 Id., paras. 95–97.

36 Id., para. 92. But see id., Separate Opinion of Judge Simma, para. 26.

37 Exec. Order No. 12, 613, Prohibiting Imports from Iran, 52 Fed. Reg. 41, 940 (1987), signed by President Reagan on October 29, 1987. The Judgment faults Iran for not having formally put in issue the question whether the U.S. embargo was a breach of the 1955 Treaty and not-justified under Article XX(1) (d) .Judgment, supra note 5, para. 94.

38 Judgment, supra note 5, paras. 99, 125. While only Judges Al-Khasawneh and Elaraby dissented, Judge Simma, who voted in favor of this holding, explained that, since he believes that the Treaty protects indirect commerce, the Court should have upheld Iran’s claim. Id., Separate Opinion of Judge Simma, para. 34.

39 Judgment, supra note 5, para. 111.

40 The Court first disposed of various objections by Iran to its jurisdiction over the U.S. counterclaim. See id., paras. 103–18. Notice, incidentally, that Iran did not invoke Article XX(1) (d) in connection with the counterclaim.

41 Id., para. 119.

42 Id.

43 Id., para. 120 (containing a chronological overview of the ten incidents invoked by the United States).

44 Id., para. 120ft).

45 Id., para. 123.

46 For a more detailed analysis of the Court’s treatment of the U.S. counterclaim and its implications, see this author’s Protecting International Shipping Channels During Hostilities and the Oil Platforms Case:Actio Popularis Revisited? 29 Yale J. Int’l L. 323 (2004). While Judge Simma was the sole dissenter on the holding pertaining to the generic counterclaim, Judge Al-Khasawneh (Jordan) stated that” [i]t would have been much better had the Court admitted both the Iranian claim and the United States counter-claim.”Judgment, supra note 5, Dissenting Opinion of Judge Al-Khasawneh, para. 7.

47 Judgment, supra note 5, Separate Opinion of Judge Kooijmans, para. 35.

48 Id., Separate Opinion of Judge Higgins, para. 52. See also paragraph 20 of Judge Higgins’s separate opinion, where she points out that

49 See also id., Separate Opinions of Judges Parra-Aranguren, para. 13; Kooijmans, para. 3. The 1996 Judgment did state, however, that” [m]atters relating to the use of force a r e . . . not perse excluded from the reach of the Treaty of 1955.” Preliminary Objection Judgment, supra note 3, at 812, para. 21.

50 Whereas the Court’s jurisdiction in Nicaragua was based on a bilateral commercial treaty and the optional clause to the ICJ Statute (Art. 36(2)), the jurisdictional basis in the instant case was limited to the Iran-U.S. Treaty. Judgment, supra note 5, Separate Opinions of Judges Buergenthal, paras. 35–36; Kooijmans, paras. 17–18; Owada, paras. 9–10, 32, 37. Although it is tempting to compare this decision to the earlier Nicaragua case, which features comparable treaty clauses, it should be kept in mind that the stare decisis doctrine has no application in the International Court of Justice. ICJ Statute Art. 59 (“The decision of the Court has no binding force except between the parties and in respect of that particular case.”).

51 Indeed, as Judge Simma remarked: “I welcome that the Court has taken the opportunity, offered by United States reliance on Article XX of the 1955 Treaty, to state its view on the legal limits on the use of force at a moment when these limits find themselves under the greatest stress.”Judgment, supra note 5, Separate Opinion of Judge Simma, 2d para. Judge Simma, along with Judges Al-Khasawneh and Elaraby and Judge ad hoc Rigaux, expressed disappointment over the degree of strength and clarity of the Court’s message. Judge Higgins complained, however, that the Judgment allows “a clause described by the Court in 1996 as a ‘defence’ to be a peg for a determination by the Court as to the legality of the United States military actions under international law.” Id., Separate Opinion of Judge Higgins, para. 54. For a reaction to the Court’s treatment of self-defense by the Legal Adviser of the U.S. Department of State, see, in this issue, Murphy, Sean D., Contemporary Practice of the United States, 98 AJIL 597, 598–601 (2004)Google ScholarPubMed.

52 For a critical review of the Court’s approach to treaty interpretation in this case, see Sir Berman, Franklin, Treaty “Interpretation” in a Judicial Context, 29 Yale J. Int’l L. 315 (2004)Google Scholar. See also Judgment, supra note 5, Separate Opinions of Judges Higgins, paras. 45–49; Buergenthal, paras. 21–28.

53 Judgment, supra note 5, para. 78.

54 Id., Separate Opinion of Judge Kooijmans, para. 25 (emphasis added) (quoting Judgment, supra note 5, para. 125).

55 Article 2 (4) of the UN Charter is referred to only by Judges Elaraby and Simma and by Judge ad hoc Rigaux in their individual opinions. Judgment, supra note 5, Dissenting Opinion of Judge Elaraby, para. 1.1; Separate Opinion of Judge Simma, para. 6; Separate Opinion ofjudge ad hoc Rigaux, paras. 16–17, 31, 33.

56 This point was made in the Separate Opinions of Judges Higgins, paras. 30–39; Buergenthal, paras. 33–46; and Owada, paras. 48–52.

57 Judgment, supra note 5, para. 51.

58 On the other hand, it should be noted that the Court was only responding to an argument by the United States to the effect that armed attacks (the missile attack in 1987 and the mine attack in 1988) had already occurred against it. Consequently, the Court was not strictly faced with an issue of anticipatory or preemptive self-defense.

59 Id., para. 76 (distinguishing between a “target of opportunity” and “one previously identified as an appropriate military target,” the former being considered unfavorably by the ICJ); see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 257, para. 78 (July 8) (naming, as a cardinal principle of international humanitarian law, the rule that belligerents must never use weapons that are incapable of distinguishing between civilian and military targets).

60 Judgment, supra note 5, para. 72; see also id., para. 77.

61 Id., para. 64. This suggests that the United States is not entitled to use force when faced with an armed attack on a civilian vessel that is U.S.-owned but not U.S.-flagged.

62 In Judge Buergen trial’s view, the Court’s interpretation of Article XX (1) (d) of the Treaty “jeopardize [s] the willingness of States to accept the Court’s jurisdiction for the adjudication of disputes relating to the interpretation or application of specific rules of international law.” Judgment, supra note 5, Separate Opinion of Judge Buergenthal, para. 22. According to Judge Kooijmans: “One can only wonder what the effect will be on States which are parties to comparable treaties with a compromissory clause.” Id., Separate Opinion of Judge Kooijmans, para. 35.

63 See also Corfu Channel (UK v. Alb.), Merits, 1949 ICJ REP. 4 (Apr. 9); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (June 27); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).