International Law

What to Make of the ICJ's Provisional Measures in Iran v. U.S. (Nuclear Sanctions Case)

By Elena Chachko
Thursday, October 4, 2018, 7:23 AM

The International Court of Justice (ICJ) issued a unanimous order on Oct. 3 indicating limited provisional measures against the United States. Iran brought the case after President Trump pulled the U.S. out of the Iran nuclear deal (known formally as the Joint Comprehensive Plan of Action, or JCPOA) in May and revoked sanctions relief provided in the framework of the agreement. In today’s order, the court rejected the U.S. challenge to its jurisdiction to hear the case, with the U.S.-appointed ad hoc judge joining the court’s ruling.  

However, the provisional measures the court ordered—the equivalent of a preliminary injunction—fall significantly short of the relief that Iran sought. Rather than requiring the United States to fully reinstate sanctions relief, the order only mandates the U.S. to ensure that re-imposed sanctions exempt certain humanitarian goods. Furthermore, the court strongly implied that one of the United States’s key arguments, while insufficient to deny the court jurisdiction, would be favorable to the U.S. position in the merits stage of the case.

The order is therefore relatively balanced and does not affect the vast majority of sanctions the U.S. has and will re-impose by Nov. 4.  Yet the U.S. has reacted forcefully, contributing to rising tensions between the U.S. and international tribunals.

 

Background

Because the U.S. withdrew from compulsory ICJ jurisdiction in 1986, Iran cited the 1955 bilateral Treaty of Amity, Economic Relations, and Consular Rights between Iran and the U.S. as the basis for the court’s jurisdiction. In a previous Lawfare post, I surveyed the background to the case and considered the disconnect between Iran’s reliance on this old treaty of friendship with the U.S. and the reality of decades of animosity and severed ties between the two countries. I predicted, however, that any U.S.  argument resting on treaty irrelevance—while conceivable under international law—would have little chance of success. The U.S. delegation—a high-level group armed with prominent international law experts—addressed this point in oral argument. State Department Legal Adviser Jennifer Newstead argued:

 … Iran’s Request warrants another observation before I proceed. It rests on the basis of a treaty whose central purpose—friendship with the United States—Iran has expressly and repeatedly disavowed since 1979 in its words and actions, by sponsoring terrorism and other malign activity against United States citizens and interests. In other words, the situation that the Parties find themselves in today is nowhere near what was contemplated when the Treaty was concluded in 1955. In spite of this, Iran invokes the Treaty in an effort to force the United States to implement an entirely separate, non-binding arrangement—the JCPOA—which contains its own dispute resolution mechanism that purposefully excludes recourse to this Court ...

The court was not persuaded. But given the Trump administration’s hostility toward international institutions, the very fact the U.S. made a serious effort to defend its position before the court is itself noteworthy. As Newstead said:

[t]he United States has great respect for this Court. We are here making our case and standing on the law. As you have heard, we have a considered view that the circumstances Iran has presented clearly do not fit within the Court’s standard for the indication of provisional measures. We do not believe that the Court has jurisdiction to entertain Iran’s case. We do believe that Iran is attempting to circumvent the terms of the very instrument that it is trying to enforce. In such circumstances, the United States does not believe that it has acted in any way improperly.

The ICJ’s Reasoning

Under ICJ doctrine, a request for indication of provisional measures must meet three conditions. The requesting party must demonstrate that the court has prime facie jurisdiction over the case. It must also establish that the rights they claim are at least plausible and linked to the requested measures, and that there is a real and imminent risk that denying provisional measures would result in “irreparable prejudice.” 

On the jurisdictional question, the U.S. advanced two key arguments. First, it argued that all of Iran’s claims arise from the JCPOA, which has its own dispute resolution mechanism and never purported to grant jurisdiction to the ICJ. Second, it made the case that the Treaty of Amity, including its provisions related to commerce between Iran and the U.S., does not apply to measures essential to U.S. national security interests. According to the U.S., the treaty also specifically exempts measures relating to nuclear material. Article XX(1) of the treaty provides:

1. The present Treaty shall not preclude the application of measures:

(a) […]

(b) relating to fissionable materials, the radioactive byproducts thereof, or the sources thereof;

(c) regulating the production of or traffic in arms, ammunition and implements of war …

(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

Since U.S. nuclear sanctions against Iran are intended to protect national security by addressing nuclear proliferation and Iran’s damaging activities, the U.S. argued, they fall within this exception. Consequently, the treaty does not apply, and the ICJ lacks jurisdiction.

The ICJ rejected this argument insofar as it would preclude the court’s jurisdiction. The court found that the applicability of the national security exception of Article XX(1) is a question for the merits stage of the case. Since Article XXI(2) of the Treaty of Amity grants the ICJ jurisdiction over disputes concerning the “interpretation or application” of the treaty, the very need to examine whether the national security exception applies is itself sufficient for the court to accept jurisdiction. That being said, the court strongly implied that a significant portion of the recently re-imposed nuclear sanctions would be covered by the national security exception (paras. 68-70). This should be good news for the U.S.

The court then turned to assessing the plausibility of the rights asserted by Iran and the link between those rights and the measures sought. Here the court found that—while at least some of the rights asserted might be affected by the national security exception—certain rights would not be affected, including those related to trade in humanitarian goods, as well as the safety of civil aviation. The court appeared to include in these categories mostly medications and medical devices, foodstuffs, and maintenance and supporting services for civil aviation. The court did not mention the provision of new aircraft to Iran in this final category. This suggests that the provisional measures are unlikely to have any bearing on the U.S. government’s revocation of special licenses granted to aircraft manufacturers Boeing and Airbus under the JCPOA framework, which allowed the manufacturers to enter into contracts for the sale of aircraft to Iran.

During the proceedings, the U.S. made it clear to the court that it already has a system of humanitarian exemptions in place, including for safety in civil aviation, and that third-state nationals enjoy such exemptions (para. 86). It also provided assurances that the State Department would “use its best endeavours” to ensure that humanitarian and civil aviation safety issues receive “full and expedited consideration by the Department of the Treasury or other relevant decision-making agencies” (para. 92). Nevertheless, the ICJ found that the aspirational nature of these assurances were not enough to preclude the court’s intervention.

Finally, the court maintained that “irreparable prejudice” includes the danger to health and life that would result from the restoration of sanctions (para. 91). It concluded that, as far as humanitarian needs and the safety of civil aviation are concerned, the restriction of the provision of related products and services is capable of causing such damage. This is a fairly constrained view of “irreparable prejudice,” focusing on serious risk to the health and lives of individuals rather than the interests of the state of Iran as a whole and the economic damage it has suffered since the U.S. withdrawal from the JCPOA. 

In light of the forgoing, the court imposed provisional measures requiring the United States to remove any impediments, resulting from re-imposed JCPOA sanctions, to the free export to Iran of humanitarian goods, equipment and services to ensure civil aviation safety. The court also ordered the parties to commit to “the non-aggravation of their dispute.”  

 

The U.S. Reaction and Its Implications

The U.S. response to the ICJ ruling has so far been forceful, although the government has not withdrawn from the case. Shortly after the court issued its order, Secretary of State Mike Pompeo announced that the U.S. is terminating the 1955 Treaty of Amity with Iran, putting to rest a peculiar historical relic that has caused legal trouble for the United States. Pompeo underscored the Trump administration’s view that Iran’s case is meritless and argued that today’s ruling was a defeat for Iran, as it denied “Iran’s attempt to secure broad measures to interfere with U.S. sanctions.” Pompeo added that those current exceptions, exemptions and licensing policies for humanitarian-related transactions that have been in place irrespective of the ICJ’s order, will remain in effect. Essentially, his statement communicates that the U.S. is complying with the provisional measures. The long overdue U.S. withdrawal from the Treaty of Amity will not affect the case, at least from a legal perspective, because it will only come into force in a year according to Article XXIII(3) of the Treaty.

Pompeo’s remarks indicate the administration’s position that, while the ICJ’s order did impose provisional measures against the United States, those measures will not have any substantial practical meaning given that the U.S. already has humanitarian exemptions to sanctions in place. He also correctly assessed that the order does not bode well for Iran with a view to the merits. The ICJ seemed willing to accept that the national security exception of the treaty applies to the vast majority of the re-instated nuclear sanctions.

However, the fact that the ICJ provisionally accepted jurisdiction in this case based on the Treaty of Amity complicates the U.S. position in Certain Iranian Assets, another pending ICJ case brought by Iran against the United States under the same treaty. In that case, Iran asserts that the U.S. violated the international law of state immunity by allowing the execution of judgments issued under the terrorism exception to the Foreign Sovereign Immunities Act against property of Iran’s Central Bank. The U.S. has previously raised jurisdictional objections in Certain Iranian Assets based in part on its interpretation of certain terms in the Treaty of Amity.

Today’s ruling, which held that the existence of a question pertaining to the interpretation of the treaty is sufficient for the court to accept jurisdiction, means that the court is very likely to also accept jurisdiction in Certain Iranian Assets based on the Treaty of Amity. As I have explored, the U.S. is unlikely to win that case on the merits of its claims regarding substantive international law of state immunity. But the court might still accept U.S. interpretations of the treaty that preclude its application at the merits stage.

The ICJ’s ruling should also be considered in the context of other steps recently taken by the Trump administration with regard to international tribunals. Shortly after the order was issued, national security adviser John Bolton announced the administration’s plans to review all international agreements that expose the United States to (in his words) “purported” internationally binding ICJ adjudication and dispute resolution. Bolton also announced the United States’s withdrawal from the optional protocol of the Vienna Convention on Diplomatic Relations, which grants the ICJ jurisdiction over disputes under that treaty—a reaction to an ICJ case recently filed against the U.S. by “the State of Palestine” over the relocation the U.S. embassy in Israel from Tel-Aviv to Jerusalem." (See Marko Milanovic’s analysis of that case). These developments follow Bolton’s threat to impose personal sanctions on International Criminal Court (ICC) judges should the ICC move forward with an investigation of U.S. actions in Afghanistan, along with the broader disengagement of the Trump administration from the UN and other international organizations.

The ICJ nuclear sanctions case exemplifies an interesting tension in this regard: at the senior working level, the U.S. engaged with the ICJ and has taken the case very seriously. By contrast, senior officials like John Bolton continue to publicly disparage the court. For the moment, the United States has not announced that it plans to disengage from the nuclear case as the matter moves forward at the ICJ, and this tension is therefore likely to persist going forward.

With this in mind, today’s unanimous indication of provisional measures—considering its limited practical implications and the stance that the court appeared to take on the merits of the case—could be viewed as a signal from the court to the U.S. that it is undeterred. Nevertheless, political gesturing aside, it is unlikely that this litigation will place any significant obstacles in the path of U.S. efforts to re-impose nuclear sanctions against Iran. The wisdom of reinstating these sanctions is ultimately a policy question, not a legal one.