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

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).