On the 16th of July 2018, the Islamic Republic of Iran filed an Application instituting proceeding against the United States of America regarding a dispute concerning alleged violations of the Treaty of Amity, Economic Relations, and Consular Rights, which was signed by the two States in Tehran on the 15th of August 1955 and entered into force on the 16th of June 1957. In its Application, Iran sought to find the Court’s jurisdiction on Art 36, para 1, of the Statute of the Court and in Art XXI, para 2, of the 1955 Treaty. On the same day, Iran filed a Request for the indication of the provisional measures. The claim was brought against the U.S. before the Court after former President Donald Trump reimposed sanctions following his decision to abandon the 2015 Joint Comprehensive Plan of Action (JCPOA) under which Iran accepted certain restrictions on its nuclear program.
The International Court of Justice’s ruling
The Court began its 35-page judgment by noting an Order dated to 3rd October 2018 where the Court indicated (a) the U.S., under its obligation of the 1955 Treaty, must remove impediments arising from the measures taken by the U.S. concerning the export of medicines, medical devices, foodstuffs, agricultural commodities, and spare parts, equipment, and other associated services necessary for the safety of aviation; (b) the U.S. shall ensure that licenses and necessary authorizations are granted and the that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services in point (a); and (c) both parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. Against these indications, the U.S. on the 23rd of August 2019 raised certain Preliminary Objections.
These Preliminary Objections included the jurisdiction of the Court ratione materiae (because of the matter) to entertain the case based on Art XXI, para 2, of the 1955 Treaty. The third Preliminary Objection is related to the admissibility of Iran’s Application for abuse of process and on the grounds of judicial propriety. The final two Objections were based on subparagraphs (b) and (c) of Art XX, para 1, of the 1955 Treaty.
As far as the first Preliminary Objection was concerned, the Court stated that neither of the Parties was contesting the existence of a dispute between them, but they disagreed whether the dispute required an interpretation and subsequently an application of the 1955 Treaty, as claimed by Iran, or exclusively by the JCPOA as contended by the U.S. If it is the latter, the dispute would fall outside the scope of the ratione materiae of the compromissory clause of the 1955 Treaty. The Court also stated that although Art 40, para 1, of the Statute, provide that an applicant must indicate to the Court what it considers to be the “subject of the dispute”, it is for the Court to determine, taking account of the parties’ submissions, the subject-matter of the dispute. Also, according to the submissions presented in its Application and its Memorial, Iran, effectively requested the Court to declare that the measures imposed according to the United States’ decision expressed in the Presidential Memorandum of 8th May 2018 were in breach of various obligations of the U.S. under the Treaty of Amity, and consequently restore ties to normal. However, the U.S. challenges that the impugned measures do not constitute a violation of the 1955 Treaty.
Although the Court agreed with the U.S. contention that the dispute arose in a particular “political context”, and that the U.S.’s decision to withdraw from the JCPOA was different from signing the 1955 Treaty, the Court believed that this matter had been resolved by the Court in previous findings – referring to the United States Diplomatic & Consular Staff in Tehran (the United States of America v. Iran), Judgment, I.C.J, Reports 1980, p.20, para 37. The fact that the dispute in question arose from the U.S.’s decision to withdraw from the JCPOA, did not in itself, prevent it from requiring interpretation and application of the 1955 Treaty. Hence, the Court unanimously rejected the first Preliminary Objection raised by the U.S.
Regarding the second Preliminary Objection, the U.S. argued that the Court does not have jurisdiction to hear the majority of Iran’s claims as they related to measures that principally concerned trade or transactions between Iran and third countries, or between their nationals and companies, which the U.S. refer to as “third country measures”, while the 1955 Treaty was only applicable to trade and transaction between the Parties. On this point, the Court’s established jurisprudence stated that when determining its jurisdiction ratione materiae under a compromissory clause concerning the dispute relating to the interpretation or application of a treaty, the Court could not limit itself to noting that one Party maintained the existence of a dispute while the other denied it. Therefore, the Court had to ascertain whether the acts of which the Applicant complained fell within the ambit of the Treaty containing the compromissory clause.
The Court observed that the “third country measures” objection did not relate to all of Iran’s claims, but only the majority of them. The. U.S. maintained that the measure it had taken to withdraw from the JCPOA and subsequently reimpose sanctions on Iran could not be categorized as “third country measures” for it benefitted only “U.S. persons”. Therefore, the withdrawal does not fall within the ambit of the 1955 Treaty. Alternatively, Iran argued that the concept of “third country measures” was not relevant. According to Iran, it was only necessary to examine each category of the measure at issue to determine whether they fell in the scope of the Treaty of Amity.
The Court further noted that the Parties disagreed on the interpretation of the provisions of the Treaty. Iran argued that provisions that did not contain an express territorial limitation and thus had to be interpreted generally as applying to activities exercised in all places. In contrast, the U.S. maintained that the object and purpose of the Treaty of Amity were concerned with the protection of commercial and investment activities of one Party, or of its nationals or companies, on the territory of the other or within the context of trade between them. Moreover, Iran also argued that the Treaty prohibited not only direct measures that impaired Iran or its nationals or companies to enjoy the benefits under the Treaty but also prohibited the U.S. from taking any measure about third countries that may indirectly affect Iran or its nationals or companies’ ability to enjoy rights under the Treaty of Amity.
The Court was of the view that the reinstated measures by the U.S., targets Iran, its nationals, and companies, with the central goal being to weaken Iran’s economy. Nevertheless, the Court could not infer that measures at issue were capable of constituting a breach of the United States’ obligation under the 1955 Treaty. This is because each measure, or its category, needed to be examined separately. Moreover, it did not matter whether some or majority of the measures targeted third States or its nationals or its companies, for it is not sufficient to automatically exclude it from the ambit of the Treaty of Amity. On this basis, the Court unanimously rejected the second Preliminary Objection to jurisdiction.
The third Preliminary Objection related to the admissibility of Iran’s claims based on the contention that its claims amounted to an “abuse of process” and would work an injustice that would raise serious questions of judicial propriety. This would be so, as Iran “[would be] invoke[ing] the Treaty [of Amity] in a case [that involves] a dispute solely concern[ed] with the application of the JCPOA.” Regarding this, the Court stated that although exceptionally, the Court had rejected claims on the grounds of abuse of process in the past, all those instances had required “clear evidence” for the Applicant’s actions to have amounted to an abuse of process. In the case before the Court, it was established that the dispute in concern, related to the Treaty of Amity and not the JCPOA. Moreover, the Court also established that the compromissory clause included in the Treaty of Amity provided the Court with a valid basis for its jurisdiction to hear Iran’s claims. On this basis, in a 15:1, with Judge Brower ruling against the Applicants, the Court held that Iran’s claims were admissible before the Court and thus rejected the U.S.’s third Preliminary Objection.
The fourth and fifth Preliminary Objections related to Art XX, para 1(b) and (d) of the Treaty of Amity. The Court about precedents stated that “Art XX, para 1(d), [of the Treaty of Amity] [did] not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defense on the merits.” Similarly, taking note of another precedent, the Court stated that the interpretation is given to Art XX, para 1, about subparagraph (d), also applied to subparagraph (c), which concerned measures “regulating the production of or traffic in arms, ammunition, and implements of war”. On this point, the Court observed that “there [were] no relevant grounds on which to distinguish [subparagraph (c)] from Art XX, para 1, subparagraph (d)”. Equally, the Court could not find a distinction about subparagraph (b), which may also only afford a possible defense on the merits.
Following the aforementioned reasons, the two Preliminary Objections raised by the U.S. under Art XX, para 1(b) and (d), could not be deemed as being “preliminary”. This would require analysis of law and facts, which had to be left to the stage of examination of the merits. Conversely, Iran maintained that subparagraph (b), which referred to measures “relating to fissionable materials, the radio-active by-products thereof, or the sources thereof”, should be interpreted as addressing only measures such as those specifically concerning the export or import of fissionable materials. As mentioned above, the meaning of subparagraph (b) and its implications had to be ascertained later in the stage of examination of merits. As such, the Court in a 15:1 ruling (Judge Brower dissenting) rejected the Preliminary Objection raised by the U.S. on the grounds of Art XX, para 1(b), and in a unanimous ruling rejected the Preliminary Objection raised by the U.S. on the grounds of Art XX, para 1(d). In conclusion, the ICJ held that it had jurisdiction based on Art XX, para 2, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, to entertain the Application filed by the Islamic Republic of Iran on the 16th of July 2018 and that Iran’s Application was admissible.
A copy of the ICJ’s judgment can be found here.
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