On October 3, 2018, the International Court of Justice (“ICJ” or the “Court”), the principal judicial organ of the United Nations, issued an Order ruling partly in favor of Iran on Iran’s request for provisional measures against the US for its May 8, 2018 withdrawal from the Joint Comprehensive Plan of Action (“JCPOA”) and re-imposition of sanctions on August 6, 2018.
On July 16, 2018, Iran instituted proceedings against the US with regard to alleged violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the US and Iran (“Treaty of Amity”). On the same day, Iran submitted a request for certain provisional measures, including a request that the US “immediately take all measures at its disposal to ensure the suspension of the implementation and enforcement of all of the 8 May sanctions, including the extraterritorial sanctions, and refrain from imposing or threatening announced further sanctions and measures which might aggravate or extend the dispute submitted to the Court.” Iran’s filing essentially asked the ICJ to order the US to provisionally lift its sanctions in advance of more detailed arguments on the merits of the case.
In its Order, the ICJ decided to impose limited provisional measures, although they did not impose any of the measures requested by Iran. Specifically, the ICJ ruled that the US must –
- Remove 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
- medicines and medical devices;
- foodstuffs and agricultural commodities; and
- spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation.
- Ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services referred to in point (1); and
- Refrain, together with Iran, from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
The ICJ did not grant any of Iran’s specific provisional requests. Instead, the ICJ identified a more limited set of provisional measures in areas – humanitarian assistance and civil aviation – that the US did not reimpose sanctions after withdrawing from the JCPOA. The Court did not reach a conclusion on any of the industries in which the US has re-imposed sanctions, including the petroleum and automotive sectors, for example.
The ICJ also made clear that its Order on the provisional measures are separate from its final decision on the merits, saying that the Order “in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves.”
According to Article 41 of the ICJ Statute, ICJ orders on provisional measures have a binding effect on the parties to the proceeding, pending the Court’s final decision.
Hours after the ICJ issued its decision, US Secretary of State Mike Pompeo said in a press briefing that the ICJ’s ruling was “a defeat for Iran,” and that the ICJ “rightly rejected all of Iran’s baseless requests.” On the other hand, Secretary Pompeo noted that the US was “disappointed that the court failed to recognize it has no jurisdiction to issue any order relating to these sanctions measures with the United States, which is doing its work on Iran to protect its own essential security interests.” With respect to the specific provisional measures adopted by the Court, Secretary Pompeo said that “[e]xisting exceptions, authorizations, and licensing policies for humanitarian-related transactions and safety of flight will remain in effect. The United States has been actively engaged on these issues without regard to any proceeding before the ICJ. ”
More importantly, however, Secretary Pompeo said that the US was terminating the 1955 Treaty of Amity with Iran in response to the ICJ’s decision, and that this decision was “39 years overdue.” Also shortly after the order was issued, US National Security Adviser John Bolton announced that the administration planned to review all international agreements that expose the US to “purported” internationally binding ICJ adjudication and dispute resolution.
It is unclear at this point what the practical effect will be of the US terminating the Treaty of Amity with Iran on this particular case specifically and other cases generally. In fact, in response to a question from a reporter what the practical fallout of pulling out of the Treaty of Amity would be, Secretary Pompeo said that “[w]e’ll see what the practical fallout is.”
As of the date of this post, the case is still pending at the ICJ. The merits of the case have not been decided but it is not clear yet to what extent, if at all, the US will continue to participate in the proceeding. The US decision to terminate the Treaty of Amity with Iran could also impact another pending case at the ICJ – Certain Iranian Assets (Islamic Republic of Iran v. United States of America) – that was brought by Iran in 2016 alleging a violation of the Treaty of Amity by the United States on a separate sanctions-related issue.
Needless to say, it is highly unlikely that the Order will have an impact on the US plans to re-impose the second wave of sanctions on or after November 5, 2018.