magnify
Home Archive for category "Sanctions"

The ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty (Iran v United States)

Published on October 3, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The ICJ this morning issued its Order regarding Iran’s request for the indication of provisional measures in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States). This post is intended as a brief summary of the reasoning of the Court. After a short introduction, I will outline the Court’s approach to the three core elements required for an indication of provisional measures: prima facie jurisdiction, plausibility of rights and nexus with provisional measures requested, and risk of irreparable prejudice and urgency.

The facts of the case, including the hearings on the request for provisional measures, are covered in an earlier post. In brief, Iran claims that the re-introduction by the United States of sanctions against it following the latter’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in May 2018 violates the 1955 Treaty of Amity between the two States. In its request for the indication of provisional measures, Iran sought the Court’s order that the US shall, inter alia, suspend its reintroduction of the sanctions, as well as allow transactions already licensed to be implemented.

In its Order of this morning, Iran, in part, prevailed, with the Court indicating some of the provisional measures requested by Iran. Thus, the Court required that the US ‘remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation’. The Court also ordered that the US must ‘ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction’ where they relate to the goods and services noted above, and that both parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

It is interesting to note that the provisional measures in this case were adopted by the Court unanimously, and thus with the support of the US Judge ad hoc Charles Brower. This is, by no means, the first time a US judge has supported a Court ruling against the US, but it is nevertheless interesting (particularly from a judge ad hoc). Judge Thomas Buergenthal supported judgments of the Court against the US in a number of previous cases, including the Oil Platforms merits judgment (after Judge Schwebel had dissented from the Court’s 1996 finding of jurisdiction in that same case).

Read the rest of this entry…

Print Friendly, PDF & Email
 

The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny 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.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

Print Friendly, PDF & Email
 

Sanctioning Qatar Continued: The United Arab Emirates is brought before the ICJ

Published on June 22, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 11 June, Qatar initiated proceedings (“Application”) against the United Arab Emirates (“the UAE”) at the International Court of Justice under the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and requested provisional measures. This step is yet another episode in the diplomatic standoff that took the world by surprise last year when Saudi Arabia, the UAE, Bahrain and Egypt (“the Quartet” or “Gulf States”) adopted a series of stringent measures against the oil-rich kingdom. When the crisis first erupted the Qatari foreign minister alluded to a violation of the principle of non-intervention when he claimed that the genuine motive behind the sanctions was “about limiting Qatar’s sovereignty, and outsourcing [its] foreign policy”. Rather than resort to retaliatory sanctions Qatar has turned to diplomacy, lobbying and various dispute settlement mechanisms. It has seized the United Nations, notably the Office of the High Commissioner for Human Rights (“OHCHR”), and the International Civil Aviation Organization (see also here and here) in search for support in condemning the coercive measures as unlawful. Qatar added pressure to the sanctioning States when it filed a request for consultation before the WTO’s dispute settlement body in August 2017 but ultimately decided to only pursue the complaint against the UAE. As noted by Johannes Fahner (see here) the proceedings before the WTO could lead to a GATT Article XXI case, which States have tended to avoid. By engaging the ICJ Qatar is taking its dispute against the UAE to the next level. Unlike the UAE, Saudi Arabia, Bahrain and Egypt adopted reservations to the ICJ’s jurisdiction under Article 22 of the Convention upon ratification.

In its Application, Qatar claims the expulsion of Qatari nationals from the UAE’s territory violates General Recommendation 30, adopted by the CERD Committee in August 2004 (para. 59), and have led to human rights violations:

“including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals”

solely on the basis of their nationality contrary to CERD Article 5 (para. 63). The Application further lists the travel embargo – which closes off air, sea and land to and from Qatar – among the discriminatory measures as well as the shutting down of local Al-Jazeera offices and the blocking off of transmissions from Al-Jazeera and other Qatari-based media outlets. In addition, Qatar alleges the UAE has encouraged rather than condemned discrimination by:

“allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities”

in violation of CERD Articles 2 and 7 (paras 57 and 61 to 63). The UAE is also said to be responsible for breaching CERD Article 4 and inciting hate speech (para. 60). According to Qatar it has “fail[ed] to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions” in violation of Article 6 CERD (para. 64). Read the rest of this entry…

Print Friendly, PDF & Email
 

‘With Friends Like That, Who Needs Enemies?’: Extraterritorial Sanctions Following the United States’ Withdrawal from the Iran Nuclear Agreement

Published on May 29, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On Monday 21 May 2018, the US Secretary of State announced that, as a result of its withdrawal from the Joint Comprehensive Plan of Action (‘JCPOA’ or ‘Iran Nuclear Deal’), the United States is set to impose the ‘strongest sanctions in history’ against Iran. While the remaining states parties are committed to preserve the Iran Nuclear Deal, whether the JCPOA can in fact survive in the face of the US change of heart is a matter of uncertainty. Of particular concern is the effect that the resumption of US economic sanctions will have on non-US companies that have flocked to Iran in the aftermath of the JCPOA. Unlike the sanction programmes implemented against Iran by various states before 2015, the US measures present distinctively extraterritorial features, directly targeting foreign companies carrying out business with Iran despite the absence of a significant connection with the United States. The European Union has already vowed to take action in order to protect its trade interests and to ‘block’ unwarranted interference by the United States. As tension in the transatlantic relations mounts, serious questions arise concerning the legality of the US sanctions regime under international law. This post will focus in particular on the compatibility of these measures with the international rules governing the assertion of jurisdiction by states. It will be shown that, in the absence of an adequate jurisdictional basis, the extraterritorial aspects of the US sanctions regime must be considered unlawful. Some measures that the European Union and other JCPOA states can take in order to react to these wrongful acts will further be considered. Despite the availability of legal means to counter the US sanctions, a negotiated settlement between the United States and its economic partners remains the most viable solution to this standoff.

The long arm of the US sanction regime

Despite the Trump administration’s lack of specific directions on the issue, the US Treasury Department’s Office of Foreign Assets Control (OFAC) recommends that persons engaged in transactions with Iran:

‘should take the steps necessary to wind down those activities to avoid exposure to sanctions or an OFAC enforcement action under U.S. law after August 6, 2018, or November 4, 2018, depending on the activity’ (Question 1.4).

Of particular concern for foreign firms are the provisions contained in Executive Order 13590 (providing for an almost complete ban on the Iranian petrochemical sector), Executive Order 13622, and Executive Order 13645 (which prohibit foreign financial institutions from carrying out a vast set of transactions on behalf of Iranian entities). As recently as August 2017, Congress also vested the US President with ample powers to take measures against:

‘any person that … knowingly engages in any activity that materially contributes to the activities of the Government of Iran with respect to its ballistic missile program, or any other program in Iran for developing, deploying, or maintaining systems capable of delivering weapons of mass destruction’ (Section 104 of the Countering America’s Adversaries Through Sanctions Act).

Alongside their broad content, these measures all are characterised by an unspecified — and potentially unlimited — jurisdictional scope. Through these provisions, the United States seeks to compel not only US persons, but ‘any person’ — wherever located and regardless of their connection with the United States — to refrain from engaging in certain transactions with Iran. This is problematic in several respects. Read the rest of this entry…

Print Friendly, PDF & Email
Filed under: Iran, Nuclear Weapons, Sanctions
 

Sanctioning Qatar: Coercive interference in the State’s domaine réservé?

Published on June 30, 2017        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 23 May, the Qatar News Agency published content attributing statements to Qatar’s Emir which laid bare simmering regional sensitivities and quickly escalated into a full-blown diplomatic row between Qatar and other regional Powers.

Indeed, on Monday 5 June, Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt adopted what has been dubbed a ‘diplomatic and economic blockade’ (to the annoyance of some). Not only did these States close their land, naval and aerial borders for travel and transport to and from Qatar, the three Gulf States also appeared to expel Qatari diplomats and order (some) Qatari citizens to leave their territory within 14 days. In addition, websites from the Al Jazeera Media Network, as well as other Qatari newspapers, were blocked and offices were shut down in several countries. At the end of a feverish week, on Friday 9 June, targeted sanctions were furthermore adopted against Qatari organizations and nationals believed to have links to Islamist militancy.

In justification of the measures, the sanctioning States invoked the Gulf Cooperation Council’s 2013 Riyadh Agreement and its implementation mechanisms as well as the Comprehensive Agreement of 2014. Although the contents of these agreements are not public, it is believed that the Gulf States expected Qatar to curtail its support to groups that purportedly pose a threat to the region’s stability, such as Hamas and the Muslim Brotherhood. Read the rest of this entry…

Print Friendly, PDF & Email
 

Non-UN Financial Sanctions against Central Banks and Heads of State: in breach of international immunity law?

Published on May 12, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Conventional Wisdom Challenged?

Recent years have seen a wide range of non-UN financial sanctions being adopted against States and their instrumentalities, including central banks, as well as against high-level State officials. Prominent examples include the EU and US sanctions against the central banks of Syria and Iran, and the asset freezes against the serving Presidents of Zimbabwe and Syria. In spite of the EU’s firm assertion that its ‘restrictive measures’ “are fully compliant with obligations under international law”, one might be inclined, intuitively, to regard such sanctions as a prima facie breach of international immunity rules (whether or not they qualify as (third-party?) countermeasures is a different story altogether – one which the present post will not touch upon). Thus, given the lack of a general exemption in respect of activities de jure imperii, Castellarin argues that the EU’s financial sanctions against central banks are contrary to State immunity law – a position which is also subscribed to by Thouvenin and Dupont. Others have arrived at the same conclusion in respect of asset freezes targeting Heads of State (see e.g. Pillitu). When discussing the matter with fellow scholars, it seems that the applicability of, and incompatibility with, immunity rules is often taken for granted.

Yet, is this conventional wisdom (if that is what it is) justified? It is quite remarkable to see how, on the one hand, the EU goes to some lengths to insert tailor-made exemptions to asset freezes in order to enable payments to or from diplomatic or consular posts (or exceptions to travel bans to allow officials to participate in international conferences) – even if the practice seems far from consistent –, while at the same time seeing no problems in the imposition of financial sanctions on Syria’s central bank and Head of State. Equally remarkable Read the rest of this entry…

Print Friendly, PDF & Email
 

Excusing Humanitarian Intervention – A Reply to Jure Vidmar

Published on April 27, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The US strikes in Syria, for which the US offered no legal justification, have once again ignited the debate on the qualification of such acts as illegal but legitimate – a label that had been used, in its day, to describe NATO’s use of force in Kosovo. Legally speaking, what does this sentence mean? Jure Vidmar, in his post on this blog, attempted to explain it by means of the distinction between justification and excuse. As Vidmar explains, excuses usually (but by no means always) cover situations in which conduct, while illegal, is nevertheless the morally right thing to do in the circumstances. He sees this type of reasoning behind the reactions of other States to the US action – expressing support for the action as the right thing to do, but unwilling to go as far as to say that the conduct was permitted or lawful.

The argument is certainly plausible (although note that no State has used the language of excuse in these circumstances which is, in my view, somewhat problematic for the argument). However, it raises a number of important issues which may, ultimately, undermine the very purpose of excusing an actor engaged in humanitarian intervention. I want to consider three of these here: (i) the current recognition of excuses in international law; (ii) the availability of excuses in respect of the breach of peremptory rules; and, (iii) the potential effects of excusing states for humanitarian intervention. I will address each of these in turn.

Excuses in International Law

Excuses are defences that arise from properties or characteristics of actors which, while having no effect on the illegality of the act, shield that actor from responsibility for its (illegal) actions. By contrast, justifications are defences that arise from properties or characteristics of acts and have the effect of rendering those acts lawful, despite apparently breaching a rule of the legal order. Read the rest of this entry…

Print Friendly, PDF & Email
 

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

Print Friendly, PDF & Email
 

Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

Published on January 20, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice. Read the rest of this entry…

Print Friendly, PDF & Email