On Wednesday, October 3, 2018, the International Court of Justice (ICJ) issued an order in response to Iran’s request for the indication of provisional measures in its proceedings against the United States—Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America)—for reinstating sanctions after withdrawing from the Joint Comprehensive Plan of Action (JCPOA). In this ruling, the ICJ ordered the U.S. to halt sanctions on Iran that impede humanitarian needs or civil aviation safety. In response, U.S. Secretary of State Mike Pompeo announced, that same day, that the U.S. is officially terminating the 1955 Treaty of Amity with Iran, which served as the basis for the ICJ’s jurisdiction.
The 1955 Treaty of Amity
The 1955 U.S.-Iran Treaty of Amity, Economic Relations and Consular Rights (Treaty of Amity) is a pre-Iranian Revolution bilateral treaty that set out to promote diplomatic and economic ties and regulate consular relations between the two states. Although Iran and the U.S. have not had diplomatic ties since 1980, following a crisis situation at the American embassy, the treaty is still considered to be valid under international law. Neither state had previously cited the treaty’s termination conditions, outlined in Clause 3, Article XXIII. Moreover, both Iran and the U.S. have used the treaty as the basis for filing proceedings at the ICJ since 1980; examples of these include: United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran); Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America); and Oil Platforms (Islamic Republic of Iran v. United States of America). Clause 2, Article XXI, of the Treaty of Amity establishes a dispute-resolution mechanism whereby either party may submit a dispute before the ICJ.
Iran’s Suit Before the ICJ
In July, Iran relied its proceedings against the U.S. before the ICJ on alleged violations of 1955 Treaty of Amity, following from the U.S. re-imposing sanctions after withdrawing from the JCPOA (Iran also alleged that the U.S. violated the JCPOA for its withdrawal). The JCPOA, a 2015 nuclear accord between Iran, the 5 permanent members of the United Nations Security Council—The U.S., the United Kingdom, China, France and Russia—plus Germany and the European Union, set out to restrict Iran’s nuclear programs and allow for international inspections in return for sanctions relief. U.S. President Trump pulled the U.S. out of the JCPOA in May and declared the U.S. would re-impose sanctions on August 6, 2018, followed by another round of sanctions due to be reinstated in early November. Maintaining that the reintroduction of sanctions by the U.S. after it withdrew from the nuclear accord violates the Treaty of Amity, Iran sought an order from the ICJ for the U.S. to broadly suspend its reintroduction of sanction activity in its Request for the Indication of Provisional Measures.
October 3 Preliminary Ruling
On October 3, 2018, the ICJ issued a preliminary ruling regarding Iran’s request for the indication of provisional measures, with a narrow finding in favor of Iran in which the Court unanimously held that the U.S. must not re-impose sanctions that impact goods required for humanitarian needs or civil aviation safety. In its reasoning, the ICJ determined it could indicate provisional measures because 3 conditions were met: the provisions Iran relies on afford prima facie jurisdiction; the rights Iran asserts are plausible and there is a link between these rights and the measures requested; and there is urgency, in that “there is a real and imminent risk that irreparable prejudice will be caused to the rights at issue before the Court gives its final decision.”
In regard to the first factor, Article XXI, paragraph 2, of the 1955 Treaty of Amity makes the jurisdiction of the ICJ conditional on the existence of a dispute as to the interpretation or application of the treaty. The Court found this condition to be satisfied given the Treaty of Amity contains provisions about trade and commerce, which also encompass the nature of the actions by the U.S. at issue with Iran. Second, the Court found that some of the rights determined by Iran are plausible “in so far as they relate to the importation and purchase of goods required for humanitarian needs,” such as medicine, food and agricultural commodities, “as well as goods and services required for the safety of civil aviation,” such as parts, equipment and necessary services (i.e. maintenance, repair services and safety inspections). The ICJ reasoned that some aspects of the measures requested by Iran that are related to these goods and services may be considered to be linked to the plausible rights whose protection is sought. Finally, in determining if disregard to these plausible rights may entail irreparable prejudice or consequences, the Court concluded that the measures adopted by the U.S. “have the potential to endanger civil aviation safety in Iran and the lives of its users” and that sanctions on “goods required for humanitarian needs…may have a serious detrimental impact on the health and lives of individuals on the territory of Iran.” Thus, in its operative clause, the Court required that the U.S:
“[R]emove, 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 the U.S. to “ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction” as far as they relate to the goods and services mentioned, and that both parties refrain from any action that might aggravate or extend the dispute. This ruling is a provisional measure before the ICJ reaches a final verdict on the case—it creates binding international legal obligations on the U.S. and Iran and cannot be appealed, although there are no means for enforcing it.
Secretary of State Mike Pompeo responded to the ICJ order, stating that the U.S. is “disappointed the court failed to recognize it has no jurisdiction,” and announced the U.S. is terminating its Treaty of Amity with Iran. He further claimed that this decision is “39 years overdue,” and that the existing sanctions exemptions on goods that impact humanitarian need and civil aviation safety will remain.
According to the termination conditions in Clause 3, Article XXIII , of the Treaty of Amity, the treaty termination may not take effect until after one year following written notice. Regardless, it is unclear what the practical impact of this treaty withdrawal will be, beyond the possible limits for the U.S. or Iran to file cases against each other at the ICJ in the future, given that much of the treaty has not been adhered to for several years. Furthermore, the European Union, China, and Russia continue to promote the nuclear accord with Iran, and have set out a plan to diminish the impact of U.S. reinstated sanctions in the hopes of influencing Iran’s commitment to staying in the JCPOA.