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

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).

Prima facie jurisdiction

Iran, of course, sought to found the jurisdiction of the Court on the compromissory clause in the 1955 Treaty of Amity, a clause that I suspect by now the US rather wishes did not exist. The key contention, and discussed in detail in Paula Fischer’s previous post, was whether the dispute concerned the ‘interpretation or application’ of the 1955 Treaty. Iran pointed to a range of provisions of the 1955 Treaty that it contended were engaged by the US’ reintroduction of sanctions. The US argued, however, that the dispute concerns not the 1955 Treaty but the JCPOA and the US’ decision to withdraw therefrom, the latter of which does not contain a compromissory clause. As the Agent for the US argued during the oral hearings:

Iran’s Request for provisional measures is fundamentally an effort to restore the sanctions relief that the United States had provided when implementing the JCPOA. The Treaty of Amity is therefore simply a device in Iran’s search for a jurisdictional basis to this Court … Both Iran’s Application and its Request for provisional measures make clear that this is in fact a dispute about the JCPOA’ (CR 2018/17, pp 13–14).

The US further claimed that the jurisdiction of the Court under the compromissory clause of the 1955 Treaty was excluded by Article XX, paragraph 1, of that Treaty, providing for certain non-precluded measures, which the US claimed covered its sanctions. Finally, the US submitted that the compromissory clause, in stating that a dispute submitted to the ICJ must not have been ‘satisfactorily adjusted by diplomacy’, requires ‘a genuine attempt to negotiate’ (para 49), which had not been satisfied here.

The Court dismissed all objections by the US. Regarding the first objection concerning the subject-matter of the dispute, the Court held that

… the fact that the dispute between the Parties arose in connection with and in the context of the decision of the United States to withdraw from the JCPOA does not in and of itself exclude the possibility that the dispute relates to the interpretation of application of the Treaty of Amity … In general terms, certain acts may fall within the ambit of more than one legal instrument and a dispute relating to those acts may relate to the ‘interpretation or application’ of more than one treaty or other instrument. (para 38)

This is entirely consistent with the Court’s previous case law. In response to a similar objection by the Russian Federation in Georgia v Russia, the Court held that ‘[o]ne situation may contain disputes which relate to more than one body of law and which are subject to different dispute settlement procedures’ (para 32). The Court again rejected this claim by Russia in its more recent Ukraine v Russia provisional measures order (at paras 29–31). (I explore these issues in a draft article uploaded to SSRN regarding the Ukraine/Russia dispute before international courts and tribunals.)

Notably, the Court emphasised not only the possibility of multiple rules being engaged by the same acts, but also the possibility of co-existing jurisdictions of different dispute settlement mechanisms: ‘… the JCPOA does not grant exclusive competence to the dispute settlement mechanism with respect to measures adopted in its context and which may fall under the jurisdiction of another dispute settlement mechanism’ (para 39). One may contrast this with the controversial approach of the Annex VII UNCLOS tribunal in Southern Bluefin Tuna, for example.

Regarding the US’ second objection concerning the effect of Article XX, paragraph 1, of the 1955 Treaty on the ICJ’s jurisdiction, the Court repeated its finding from its 1996 judgment on jurisdiction in Oil Platforms to the effect that Article XX, paragraph 1, ‘does not restrict its jurisdiction … but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise’ (para 20 of Oil Platforms (Jurisdiction)). Such an interpretation is consistent with the structure of the 1955 Treaty and the absence of any limitation on the Court’s jurisdiction under the compromissory clause.

Finally, regarding the US’ submission that the compromissory clause required prior attempts to negotiate, this interestingly was an argument raised by Iran in the 2003 Oil Platforms judgment as a jurisdictional objection to the US’ counter-claim in that case. There, the Court rejected Iran’s objection on the basis that ‘it is sufficient for the Court to satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being submitted to the Court’ (para 107). Similarly, here, the Court rejected this argument as raised by the US and held that the clause in the 1955 Treaty is not phrased so as to require prior negotiation by the parties, in contrast to other compromissory clauses (e.g., the clause in Georgia v Russia).

The Court thus found prima facie jurisdiction.

Plausibility of rights and link with provisional measures requested

To demonstrate plausibility, Iran pointed to a range of provisions in the 1955 Treaty that it alleges are engaged by the US’ sanctions, including fair and equitable treatment, most favoured nation, and freedom of commerce and navigation provisions. The US made two submissions on the point of plausibility (CR 2018/17, pp 44–8). First, it continued its claim that Iran’s case is really about the JCPOA and thus any rights it is seeking to enforce arise under that treaty rather than the 1955 Treaty. Second, the US argued that Iran’s claims are not plausible given that the measures complained of are justified under Article XX, paragraph 1 of the 1955 Treaty.

Regarding the first claim, the Court simply notes that ‘the rights whose preservation is sought by Iran appear to be based on a possible interpretation of the 1955 Treaty’ (para 67). Regarding the second claim, the Court does accept the US’ submission that certain of Iran’s alleged rights may be affected by the operation of Article XX, paragraph 1, of the Treaty (para 68). Though certainly true, the degree to which the Court could review such a merits-based argument at the provisional measures stage is tricky. Nonetheless, the Court here was able to avoid this difficulty, as it went on to hold that at least certain rights invoked by Iran ‘cannot plausibly be considered to give rise to the invocation of Article XX, paragraph 1’ (para 69). Thus, it held that some of the rights asserted by Iran are plausible, notably those rights relating to import and purchase of goods required for humanitarian needs (medicines and medical devices; foodstuffs and agricultural commodities) and goods and services required for the safety of civil aviation (para 70).

With respect to the need for a link between the provisional measures sought and the rights invoked, the US again raised the JCPOA as a basis for arguing that there is no such link, on the grounds that the requested measures concern the restoration of the JCPOA. The Court rejected this, concluding that a sufficient link exists between certain of the provisional measures requested by Iran concerning freedom of trade and commerce and those rights that the Court determined to be plausible (para 75).

Risk of irreparable prejudice and urgency

Iran pointed to a range of ways in which irreparable prejudice was threatened due to US sanctions. In particular, it pointed to the risk to airline safety due to contracts between US and Iranian companies in the aviation sector being cancelled, risks to the health of Iranians due to certain medical supplies being restricted, and damage of the Iranian economy as a result of the US announcement in May 2018 of the reintroduction of sanctions (para 81–3). The US argued that irreparable prejudice and urgency could not be shown on the basis that its measures were a reintroduction of previous measures (and no suggestion of irreparable harm and urgency had been claimed before), that the economic stagnation in Iran could not easily be attributed to US sanctions, and that the US had made room for various exceptions to its sanctions regime, including on humanitarian grounds (CR 2018/17, pp 59–66). The US also argued that the provisional measures requested would cause irreparable prejudice to its own sovereign rights to introduce sanctions against Iran and its rights under Article XX, paragraph 1 (CR 2018/17, pp 66–8).  

The Court again rejected the US’ submissions on this point. It held that US sanctions had already appeared to have had an impact on trade, notably concerning those areas in which Iran’s claims were plausible, i.e. the importation of goods and services concerning civil aviation, medical supplies, and foodstuffs (paras 88–9). It went on to state that this may be considered to cause irreparable prejudice, given that restrictions in the importation of such goods and services risk the health and life of individuals (para 91). The Court held that there is ‘little prospect of improvement’ and that ‘there is urgency, taking into account the imminent implementation by the United States of an additional set of measures scheduled for after 4 November 2018’ (para 93). Finally, the Court swiftly rejected in one sentence the US’ argument concerning its own rights: ‘[t]he indication by the Court of provisional measures responding to humanitarian needs would not cause irreparable prejudice to any rights invoked by the United States’ (para 94).

Conclusion

It remains to be seen how the Court will address the many complicated issues arising in this case in the subsequent phases. This includes not only the issue of the potential relevance of the JCPOA for the substantive obligations under the Treaty of Amity (as discussed in Paula Fischer’s previous post) but also the interesting question of the degree of discretion the parties have under Article XX, paragraph 1, to introduce measures otherwise inconsistent with the Treaty and the power of the Court to review such measures (see, e.g., Oil Platforms (2003), para 43).

Print Friendly, PDF & Email
 

7 Responses

  1. Many thanks, Lawrence, for this very informative post!

    A brief follow-up. Here you have the very mature way in which the USA is responding to the ICJ’s order: termination of the Treaty of Amity (https://www.state.gov/secretary/remarks/2018/10/286417.htm).

  2. Nicolas Boeglin

    Dear Lawrence

    Many thanks for this very valuable article.

    If I´m right, US refers to 1955 treaty when instituting proceedigns against Iran in 1980 at ICJ (see mention made at p. 3 at: https://www.icj-cij.org/files/case-related/64/9545.pdf).

    The statement made yesterady on the “termination” of 1955 treaty referred in the comment of Marco has probably, in Mike Pompeo views, inmediate legal effects, and it would be very interesting to know what have said ICJ or other jurisdictions on unilateral “terminations” of treaties and their legal effects.

    US State Department also announced it will “terminate” Optional Protocol to Vienna Convention on Diplomatic Relations of 1961, on which base Palestine institutes proceedings last Sept 28 against US at The Hague (ICJ). Possibly thinking that legal effects of this termination are inmediate too.

    Yours sincerely

    Nicolas Boeglin

  3. May I join the other commentators in thanking you for the excellent post. We are potentially up for something really interesting here. Others have certainly looked into this much more closely already, but as far as I can see, the OP is silent on termination, which means that the question of withdrawal, the procedure and its legal effects must be answered with the help of other sources of international law. The Vienna Convention on the Law of Treaties would, of course, be the first source to look at but given that both states have merely signed but not ratified the VCLT, the questions at hand get even more interesting. As is well known, the ICJ said in Gabčíkovo-Nagymaros that the VCLT rules were customary international law ‘à bien des égards’ (para. 46). It will be very interesting to see what this means for the withdrawal issues. I would certainly not be as sure as Nicolas Boeglin in assuming that the ‘legal effects of this ‘termination’ are immediate’. Art. 56 para. 2 of the VCLT speaks of a minimum of twelve months. At the same time, it is precisely these procedural aspects for which uncertainty about the customary law status remains significant. But I find it difficult to imagine that ‘immediate effects’ is the customary law answer and we could probably find that states have a certain commitment to a measure of legal certainty. But I haven’t looked into this in any detail. What do you think?

  4. Nicolas Boeglin

    Dear Evelyn

    Many thanks. I think that Mike Pompeo considers that the effect is inmediate, legally speaking, of a “termination” of a treaty. But this reflects only US State Department views, not mine.

    It must be recalled that in 2005, US withdraws from Optional Protocol to Vienna Convention on Consular Relations (see note 1 at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-8&chapter=3&clang=_en).

    Yours sincerely

    Nicolas Boeglin

  5. Lawrence Hill-Cawthorne Lawrence Hill-Cawthorne

    Dear Marco, Evelyne and Nicolas,

    Many thanks for your replies.

    It is, indeed, unfortunate that the US has responded in this way, though not at all surprising. As Nicolas noted, the US purported to withdraw from the Optional Protocol to the Vienna Convention on Consular Relations following the ICJ’s Avena judgment, so it is not unexpected that it should respond to the Palestine application in this way. The question of whether such purported withdrawals are legally effective, given the absence of any provision on withdrawal in either Optional Protocol, together with the presumption against withdrawal in such cases under the VCLT, is very interesting. Aust (p 257) has taken the view that withdrawals from treaties on dispute settlement are lawful under Article 56(1)(b) VCLT. Of course, assuming its customary status, the 12 month notice rule would still apply here even if such withdrawals are legitimate in principle. Even more interesting is how the ICJ might deal with this in a future case brought on the basis of one of the Optional Protocols.

    Regarding the 1955 Treaty, this does of course have a provision on termination, though I suspect Nicolas is right about the US thinking in terms of immediate termination (in light of alleged material breach). Though I imagine what the US would really like is an amendment to the VCLT for the inclusion of a new Article 61 bis (Supervening Irritability of Performance).

    Having sought to withdraw from the Optional Protocol to the VCCR in 2005, and now also having sought to withdraw from the Optional Protocol to the VCDR as well as the 1955 Treaty, the US no longer will have available to it any of the 3 bases of jurisdiction successfully relied on by the US in the Tehran Hostages case against Iran.

    Best wishes
    Lawrence

  6. Thanks indeed for this excellent post.

    para. 102(3) of the order states that:
    “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”

    Termination of the Treaty of Amity in this way, is not in conformity with the above mentioned order of the Court.Don’t you think so?

    Thanks,
    Pouria Askary

  7. I am not sure why Secretary Pompeo’s remarks would be understood to mean that the US considers the 1955 Treaty of Amity to be terminated with immediate effect. According to the transcript, Secretary Pompeo said that he was “therefore announcing today that the United States is terminating the Treaty of Amity with Iran”. Unless there is other information to rely on, there is no obvious reason to conclude that this statement means termination with immediate effect, as opposed to meaning that the US is giving its notice of termination under Article XXIII of the Treaty (which provides for termination on one year’s written notice). There may, however, be confusion within the US as to whether termination of the treaty has the effect of ending the case. Of course, it does not.

    As to Pouria Askary’s interesting question, I do not think that giving lawful notice of termination of the Treaty of Amity would run afoul of the Court’s non-aggravation measure (one might even argue that terminating the treaty reduces the scope of the dispute since the substantive obligations will no longer be in place once termination takes effect). It is less certain, however, whether the imposition of further sanctions by the US in November, as is planned, would be consistent with that measure. The Court’s decision not to engage directly with or take express action to prevent those further sanctions in its order (except to the extent they may relate to humanitarian needs or civil aviation) seems to suggest that the Court would not view the US imposing those additional sanctions in November as an aggravation or extension of the dispute (although Iran may choose to argue otherwise).

Leave a Reply

Your email address will not be published. Required fields are marked *