Iran wants Hague court to dull the impact of US sanctions (Part 2)
By Mohammad Hadi Zakerhossein
Everyone who has paid any attention to the news lately knows that there is a high-stakes dispute between the United States and Iran currently unfolding on the world stage. After unilaterally withdrawing from the Joint Comprehensive Plan of Action, otherwise knows as the Iran nuclear deal or Iran deal, which was designed to prevent Tehran from acquiring nuclear weapons, the US has re-imposed tough economic sanctions on Iran.
What many people may not know is how The Hague fits in. From 27 to 30 August 2018 the United Nations highest court, the International Court of Justice (ICJ), will hear arguments about a case Iran has filed challenging the imposition of sanctions. This is the first instalment in a three-part series that will take a deep dive into the titanic legal battle that is about to take place in The Hague.
In this article, Mohammad Hadi Zakerhossein, himself an Iranian and an international law expert based in the Netherlands, explains the mandate and powers of the International Court of Justice, the court where this dispute will be heard out. If you want to know some of the background on this dispute, check out Part 1 here. Part 3, in which Zakerhossein examines what the potential consequences of the ICJ case may be, can be read here. If you want to know a bit more than what is splashed across the front pages of newspapers then read on:
1. What can the International Court of Justice actually do? Under the UN Charter, the ICJ has two mandates. First, it can offer advisory opinions. For instance, in December 2003, the UN General Assembly asked the ICJ for an advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory by Israel. In response, the Court concluded that the construction of the wall impeded the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligation to respect that right. Second, the ICJ can settle disputes between states. Settling disputes by peaceful means and in conformity with the principles of justice and international law is one of the major constituent objectives of the UN. States can institute proceedings before the ICJ to settle their disputes. And only states may be parties in cases before the Court. No individuals or non-state actors have the right to bring a complaint before the Court.
2. Is what the ICJ decides binding? Decisions taken by the ICJ are obligatory and binding for each member of the UN in any case to which it is a party. But it’s evident that when a permanent member of the UN Security Council fails to perform its obligations arising from the ICJ's decisions, the ‘binding’ bit of the UN Charter is not cast-iron.
3. Why is it different with permanent members of the Security Council? Because according to the UN Charter, if a party to the proceedings before the ICJ – like a permanent member of the Security Council – fails to comply with the Court's decisions, the only ‘stick’ at the other party's disposal is going to the (same) UN Security Council where permanent members have a veto.
4. How do states get the ICJ involved? And what did Iran do to get the ICJ involved? There can be a so-called “special agreement” where states bilaterally agree to refer an existing dispute to the ICJ, and thus to recognize its jurisdiction for purposes of that particular case. Iran didn’t rely on this way to trigger the Court's jurisdiction over its dispute with the US. The two countries concerned are not in such a relationship that encourages them to settle their disputes before the Court based on a mutual agreement. The second mechanism that could trigger the Court's jurisdiction is a declaration accepting the compulsory jurisdiction of the Court. A state that intends to seek this way to bring a case before the ICJ has to already belong to the group of states have accepted the compulsory jurisdiction of the Court, and its case would be against another member of this group. Neither Iran nor the US is a member of such a group.
5. So if it couldn’t use either of those ways, what did Iran use? In the absence of these two triggers, Iran grounded the Court's jurisdiction on a third base: conventions and treaties. States which are signatories to such conventions may, if a dispute arises between them, bring the matter before the Court by filing a unilateral application and without any prior agreement. For instance, Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) envisages that "disputes between the contracting parties relating to the interpretation, application or fulfilment of the present Convention, ... shall be submitted to the International Court of Justice at the request of any of the parties to the dispute". Based on this provision, in March 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
6. And which convention does Iran use? Iran has grounded its proceedings on alleged violations of the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the US, which was signed in Teheran on 15 August 1955 and entered into force on 16 June 1957.
7. That’s a long time ago. There’s not much ‘Amity’ left between the US and Iran these days. Does the treaty still apply? Paragraph 2 of Article XXI of the Treaty of Amity states that "Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means". Although the treaty of amity was concluded before the 1979 Iranian revolution, its validity is still intact. Under international law, a regime change does not necessarily nullify the validity of prior contracts.
8. But are we sure it still applies? Doubts over the validity of the amity treaty were resolved by the ICJ's judgment in the oil platform case instituted by Iran against the US in 1992. In that case, Iran had grounded the ICJ's jurisdiction on the Amity Treaty. The US raised a preliminary objection to the Court's jurisdiction, but the ICJ rejected the objection. Consequently, the Court decided that it would have jurisdiction over the dispute, proving the validity of the foregoing treaty. Even before that, following the occupation of the US Embassy Iran in 1979, the US cited the Amity Treaty as a source of proof of Iran's responsibility – showing that from the US point of view it was valid. However, like other agreements, either Iran or the US can terminate their membership of the treaty. And, as long as there is no explicit intent to terminate the treaty, it should be considered valid. The mere existence of this treaty can keep alive the hope that two states, at least someday, comply with the spirit and text of the amity treaty.
9. So what does Iran say now? Iran claims that the US “has violated and continues to violate multiple provisions” of the Amity Treaty. For example, it says that Iranian nationals and companies are not fairly and equitably treated as required by Article IV (1) of the treaty that obliges both Iran and the US “at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises ", because sanctions deprive them of any effective means of enforcement of their lawful contractual rights. It also argues that the prohibitions on purchases of US dollars or Iranian Rial violate Article VII (1) of the treaty that provides “neither High Contracting Party shall apply restrictions on the making of payments, remittances, and other transfers of funds to or from the territories of the other High Contracting Party". And Iran believes that Article VIII (1) of the treaty is violated by the US sanctions because they have the effect of prohibiting the importation of Iranian products to US territory and vice versa, whereas the amity treaty bans both Iran and the US from "impos[ing] restrictions or prohibitions on the importation of any product of the other High Contracting Party or on the exportation of any product to the territories of the other High Contracting Party, unless the importation of the like product of, or the exportation of the like product to, all third countries is similarly restricted or prohibited.” And there is more.
10. Now what? Can the Court do anything? Iran has asked the Court, to request the US to terminate the 8 May sanctions without delay. And meanwhile, Tehran also filed a request for provisional measures, pending the judgment of the Court on the case.
11. What are provisional measures? Under the ICJ’s rules, provisional measures, which provide interim protection against potential harm, can be requested by parties to proceedings. Iran believes that the US has already started to enforce some elements of the sanctions announced in May, while others are planned to be implemented between 90 and 180 days from 8 May 2018. In its request, Iran maintains that there is “a real and imminent risk that irreparable prejudice” will be caused to its rights - which form the subject of the dispute - before the Court gives its final decision. So Iran asked the Court to suspend “the implementation and enforcement” of the sanctions.
12. And what comes next? The ICJ announced that it will hold public hearings from 27 to 30 August to address the request for the indication of provisional measures submitted by Iran. This won’t address the substantive merits of claims in detail. Generally, upon concluding a hearing, it takes three to four weeks to make a decision in the form of an order, though this can also be much more rapid.
13. How rapid is rapid? For instance, in the LaGrand case, the ICJ issued its order within 24 hours. In March 1999, Germany instituted proceedings against the US in a dispute concerning alleged violations of the Vienna Convention on Consular Relations by arguing that two German nationals who had been detained in the US, Karl and Walter LaGrand, were sentenced to death without having been informed of their rights, as is required under Article 36 of the Vienna Convention. In this regard, Germany made an urgent request for the indication of provisional measures to stop the enforcement of sentences.
14. And is that it? What does a powerful state like the US do what the ICJ says? The Court has found that provisional orders have a binding effect that creates a legal obligation. But in spite of the binding nature of the Court's orders, it’s a big question to see whether the US would obey to such an order if is issued by the ICJ in the Iran case. In the LaGrand case, for instance, the US did not observe the order and the German nationals were executed in spite of the binding order issued by the Court. In the current case, Judge Abdulqawi Ahmed Yusuf, President of the ICJ, under Article 74 of the ICJ Rules, has already sent an urgent communication to the Secretary of State of the USA, calling upon the US to act in “such a way that does not deprive the consequent orders of the Court from effectiveness”, which can be seen as a proof of the urgency of the request made by Iran. This call is not, however, binding. And President Trump by signing the reimposition of the first part of sanctions on Iran on 6 August apparently didn’t react positively to the Court’s call.
This piece is an explainer on powers of the International Court of Justice in relation to the dispute between the United States and Iran. Click here for Part 1 on how The Hague is involved in the dispute between the United States and Iran over the so-called Iran nuclear deal. And here for Part 3 on what the possible outcomes of Iran’s legal gambit may be.
The opinions expressed here are those of the author and do not necessarily reflect Justice Hub’s position on the issues discussed.