It is independent that Norway has the right to self-defence in the event of an attack on petroleum installations
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Cecilie Hellestveit
Conflict and international law researcher. Author of the book “Bad news from the Eastern Front”.
I have never questioned that.
Geir Ulfstein and Stian Øby Johansen at the University of Oslo believe in a post on 10 October that “Hellestveit is still confusing”. They also claim that I have “changed my attitude”. I can assure you that I have the same attitude and opinion that I have had for years – expressed in many different formats. In what follows, I will try to reduce the confusion.
Ulfstein, Johansen and the undersigned agree that international law is important and will probably become even more important in the future, because the risk of interstate war seems to be increasing. Our disagreement is about the relationship between the prohibition of force in Article 2(4) of the UN Charter and the right to self-defence, as well as what the court in The Hague has established in a judgment from 2003 about US military attacks against oil platforms on the Iranian shelf in 1987/88 during the war between Iran and Iraq.
Ulfstein and Johansen claim that the prohibition of force in Article 2(4) of the UN Charter against threatening/using military force against the territorial integrity or political independence of another state, and the right to self-defense (codified in Article 51 of the UN Charter) are “two sides of same thing”. My understanding is that there is a large overlap between the two provisions, but not always. The prohibition of force in 2(4) gives sovereign states protection against attacks/threats against sovereign territory and for their political independence and right to self-defense if attacked.
However, the right of self-defense goes further and can also give the right to respond to attacks that take place outside sovereign territory. The oil platform judgment is a good example.
Neutral ships were attacked
During the Iran-Iraq war, a number of neutral ships carrying oil were attacked in the Persian Gulf. This also applied to American vessels. The US invoked self-defense and attacked Iranian oil platforms on the Iranian shelf to stop attacks on neutral ships.
It was not the prohibition of force in the UN Charter that protected these vessels, but the rules of international law on neutrality in war (paragraph 44 of the judgment). Neutral vessels shall never are attacked if they do not transport weapons to one of the parties. The Court dealt with the question of whether the US counterattack was to be considered “self-defence”.
Neutral vessels shall never are attacked if they do not transport weapons to one of the parties
The Americans stated that they had directed the attacks against oil platforms on Iran’s shelf precisely to avoid sovereign Iranian territory. The US considered that attacks against Iranian sovereign territory would implicate the US directly in the war against Iran on the Iraqi side. Because, in contrast to attacks against Iran’s continental shelf, attacks against Iranian territory would be a violation of the prohibition of force in Article 2(4) of the UN Charter. It is this understanding that the undersigned also expresses. The embargo protects Iranian (and Norwegian) sovereign territory. The plinth comes in a slightly different category.
The Hague Court took not position on whether the prohibition of force in the UN Charter covers the continental shelf, because it did not have jurisdiction to do so (paragraph 42 of the judgment). Ulfstein and Johansen reject the American interpretation and themselves conclude on a question the court fails to answer. They then use the judgment as an authoritative source for their view. Ulfstein and Johansen read from the judgment that it is also about the prohibition of force in the UN Charter, and that “the prohibition of force in 2(4) covers the shelf”. How they achieve such international law acrobatics, they themselves have to explain. In my opinion, the judgment deals with the right of self-defense for neutral vessels in war.
What is required?
The judgment is of particular interest to us because it deals with the conditions for attribution (attributing an attack to another state) to one can plead self-defense. So – what is required before it can be established “which state is behind an attack”.
The Court in The Hague concludes in its judgment from 2003 that it is very much to be done. Again, I am skeptical about extending the meaning of the judgment to the UN Charter’s prohibition of force in 2(4). The case concerns a war situation, where warring parties have the ability, will and often motive to attack neutral ships. In such situations, it must much more before neutral third parties can state with certainty who is behind it.
In this case, there were 113 (!) alleged Iranian attacks against neutral ships over three years not enough to conclude that the attacks in the case could be attributed to Iran. In my opinion, we should be very careful about drawing the conclusion that the court is here dealing with the threshold for attribution for a breach of the power prohibition in 2(4), as Ulfstein and Johansen seem to do. The judgment concerns neutral ships sailing in an area where the rules of naval warfare apply between belligerent nations. It is (and should be!) a different situation than the prohibition of force in the UN Charter.
The undersigned has never questioned the fact that Norway has the right to self-defence in the event of an attack against petroleum installations on the Norwegian continental shelf. Of course.
- Also read previous posts published in this debate: