ICJ dismisses US preliminary objections in Iran v. United States

On 3 February 2021, the International Court of Justice (“ICJ” or “Court”) found it had jurisdiction in respect of all claims brought by Iran against the United States (“US”) in the case concerning Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America).  The Court rejected two of the US’ preliminary objections outright, while leaving the other two to be reassessed at the merits stage.

The case arose out of events between 2015 and 2018 concerning the withdrawal and re-imposition of US economic sanctions on Iran.  In July 2015, Iran and the US, as well as other States, entered into a Joint Comprehensive Plan of Action (“JCPOA”), which lifted UN Security Council, EU and US sanctions on Iran, in return for Iran accepting constraints on its nuclear programme.  In May 2018, the US announced its intention to withdraw from the JCPOA, and directed the re-imposition of sanctions. In July 2018, Iran initiated ICJ proceedings, arguing that the US sanctions had violated the 1955 Treaty of Amity, Economic Relations and Consular Rights (“Treaty of Amity”), including the prohibition on fund transfer restrictions; the requirement of “freedom of commerce and navigation” between the Parties’ territories; the obligation to “accord fair and equitable treatment to nationals and companies of the other [Party]”; and obligations of non-discrimination vis-à-vis nationals and third States in respect of exports and imports.  Three months later, in October 2018, the Court partly granted Iran’s request for provisional measures, ordering the US to remove impediments to the free exportation to Iran of medicines and medical devices, foodstuffs and agricultural commodities, and civil aviation equipment.

The US objected to the Court’s jurisdiction on four grounds, outlined below.

First, the US argued that the dispute “pertain[ed] to… decisions relating to the JCPOA” rather than the Treaty of Amity, which were outside the Court’s jurisdiction ratione materiae.  The US argued that the JCPOA was a “multilateral political arrangement” that did “not create legally binding obligations” or give the Court jurisdiction to entertain disputes between its participants.  The Court held that, even though the dispute had arisen in connection with the US’ decision to withdraw from the JCPOA, this did “not itself preclude the dispute from relating to the interpretation or application of the Treaty of Amity”.  Nor was it relevant that Iran’s claims, if ultimately upheld, would result in restoring the situation that had previously existed (when the US participated in the JCPOA).  The Court said it was not entitled to “infer the subject-matter of a dispute from the political context” in which proceedings had been instituted; instead, the Court had to base itself “on what the applicant has requested of it”.

Second, the US argued that most of the impugned measures were directed at restricting trade or transactions between Iran and third countries, bringing them outside the Treaty of Amity’s scope (which regulated bilateral commercial activity).  On the other hand, Iran argued that the US sanctions were “specifically targeted at Iran and Iranian nationals and companies” rather than third States.  The Court found that it could only determine this through a detailed review whether the complained-of measures affected the US’ obligations under the Treaty of Amity.  Because this was “properly a matter for the merits”, the Court dismissed the objection.

Third, the US argued that the proceedings were inadmissible as an abuse of process.  It argued that Iran was seeking an “illegitimate advantage” by requesting relief from the reinstated sanctions from the ICJ, rather than via the political mechanisms in the JCPOA itself.  Iran denied that “exceptional circumstances” existed to justify an abuse of process, arguing that it was “normal that a dispute brought under a treaty has political implications” and that “asserting its rights under a treaty in force between the Parties cannot be illegitimate”.  The Court found that no “exceptional circumstances” existed to render Iran’s claims inadmissible and underscored that the Court could not concern itself with Iran’s political motivations.

Fourth, and finally, the US argued that the exceptions in Article XX(1)(b) and (d) of the Treaty of Amity—namely, measures “relating to fissionable materials” or those necessary to protect a Party’s “essential security interests”—barred Iran’s claims.  The Court found that these arguments had to be presented at the merits, citing its identical approach to the same provision in Oil Platforms.

As a result, the Court found all of Iran’s claims admissible and within its jurisdiction.  The case will now move into the merits phase. Judge ad hoc Brower appended a separate (partly dissenting) opinion, and Judge Tomka a declaration on the second objection.

The text of the Court’s judgment is available here.

Judge Tomka’s declaration is available here.

Judge ad hoc Brower’s separate (partly dissenting) opinion is available here.

The text of the Court’s Provisional Measures order is available here.