43 Years of Impactful Scholarship

ILJ Online

ILJ Online is the online component of Fordham International Law Journal.

Like Oil and Water – International Precedent for State Attacks on Oil Facilities

The recent attack on the Abqaiq oil facility in Saudi Arabia may be a new, rather uncommon[1] example of a state-sponsored attack on an oil facility, since there is evidence that it was carried out by the Iranian government.[2] The aftermath has resulted in hawkish political rhetoric, with threats of retaliation and potential war.[3] This raises the question: what recourse is available to Saudi Arabia under international law?

While there is no “right” answer to this question, there is relevant legal precedent that the international community can look to. In 2003, the International Court of Justice (“ICJ”) issued a ruling in Oil Platforms (Iran v. U.S.).[4] The Iranian government had filed suit and was seeking reparations for the bombing of three oil platforms in the Persian Gulf by the U.S. Navy during the Iran-Iraq War. Iran argued that the United States had breached the 1955 Treaty of Amity when it destroyed the oil platforms, while the United States counterclaimed that it was Iran that had breached the treaty by attacking neutrally flagged oil tankers prior to the U.S. response. The ICJ held that the United States’ actions, while not justifiable as a form of self-defense, did not infringe on Iran’s commercial rights under the treaty. Therefore, the United States owed no reparations.[5]

At least two factors distinguish Oil Platforms from the recent incident at the Abqaiq facility. In the Oil Platforms situation, the United States had stepped in as a third party[6] to protect neutral interests from the Iran-Iraq War, whereas Iran appears to be acting directly on behalf of anti-Saudi forces in the ongoing Saudi-Yemen conflict. Furthermore, the commercial impact of the attack could be significantly greater than in Oil Platforms, since the Abqaiq facility can process nearly seven million barrels of oil per day,[7] as opposed to the few-hundred thousands of barrels per day an offshore platform can generally process.[8]

While these two facts seem to support a harsher international response, especially if the attack is deemed unprovoked, it seems unlikely that the international community will respond with uniform condemnation. It is impossible to pull the politics out of this situation. Iran and Saudi Arabia have had tense relations for decades, and this attack will likely be considered as part of a long line of incidents that have split international superpowers, with the United States siding with Saudi Arabia, and Russia siding with Iran.[9]

Regardless of the political response, even if Saudi Arabia were to seek relief from the ICJ for losses sustained in the attack, it likely would not be successful for one key reason: there does not appear to be a standing bilateral treaty between Iran and Saudi Arabia policing their diplomatic relations.[10] No “contract” exists policing Iran and Saudi Arabia, which could (a) give jurisdiction to the ICJ to hear such a case or (b) justify any kind of “breach of contract” action between the two countries. So, despite having an apparently stronger case for relief than Iran had in Oil Platforms, Saudi Arabia likely would not be able to pass key procedural hurdles even if it could demonstrate that Iran did carry out an unprovoked attack on the Abaqiq facility.

David Garfinkel is a staff member of Fordham International Law Journal Volume XLIII.

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.

[1] See generally Mikhail Kashubsky, A Chronology of Attacks on and Unlawful Interferences with, Offshore Oil and Gas Installations, 1975 – 2010, 5 Persp. on Terrorism, no. 5-6, Dec. 2011, at 139.

[2] Geoff Brumfiel, What We Know About The Attack On Saudi Oil Facilities, NPR (Sept. 19, 2019), https://www.npr.org/2019/09/19/762065119/what-we-know-about-the-attack-on-saudi-oil-facilities.

[3] Bloomberg Editorial Board, Attack on Saudi Arabia Demands a United Response, Bloomberg Opinion (Sept. 15, 2019), https://www.bloomberg.com/opinion/articles/2019-09-15/attack-on-saudi-aramco-oil-facilities-needs-global-response.

[4] Judgment, 2003 I.C.J. 161 (Nov. 6).

[5] Id. at 218.

[6] The United States likely was not as “neutral” as it would like to appear in this case, as there was evidence that it provided material support to Iraq during the conflict. See Alex Chadwick and Mike Shuster, U.S. Links to Saddam During Iran-Iraq War, NPR (Sept. 22, 2005), https://www.npr.org/templates/story/story.php?storyId=4859238.

[7] See Khalid R. Al-Rodhan, Ctr. for Strategic and Int’l Studies, Impact of the Abaqaiq Attack on Saudi Energy Security 2 (Feb. 27, 2006) https://csis-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/media/csis/pubs/060227_abqaiqattack.pdf.

[8] Offshore Oil Production Estimate Illustrates Flaw in Forecasting, Inst. for Energy Research (Aug. 7, 2008) https://www.instituteforenergyresearch.org/fossil-fuels/gas-and-oil/offshore-oil-production-estimate-illustrates-flaws-in-eia-forecasting/#targetText=200%2C000%20barrels%20per%20day%20is,produce%20250%2C000%20barrels%20per%20day.

[9] See generally Anya van Wagtendonk, US officials say their pressure on Iran is working — and that’s why tensions are getting worse, Vox (Sept. 22, 2019), https://www.vox.com/policy-and-politics/2019/9/22/20878091/us-iran-sanctions-saudi-arabia-zarif-trump-unga-pompeo-mnuchin.

[10] But see Agreement concerning the sovereignty over the islands of Al-'Arabiyah and Farsi and the delimitation of the boundary line separating the submarine areas between the Kingdom of Saudi Arabia and Iran (with exchanges of letters, map and annexed English translation), Iran-Saudi Arabia, Oct. 24, 1968, 696 U.N.T.S. 189. (This is the only bilateral treaty on record in the United Nations between Iran and Saudi Arabia. It only draws technical borders between the countries and creates some stipulations on oil drilling. Nothing appears pertinent from this treaty that can apply to the current situation).