Iran Dusts Off the 1955 Treaty of Amity One Last Time in Effort to Stave Off U.S. Sanctions
While obscure and outdated, the 1955 Treaty of Amity has provided the United States and Iran a forum to air their grievances. The world will be a more dangerous place without it.
On September 21, 2020, the International Court of Justice (ICJ) wrapped up oral arguments on whether it has jurisdiction to determine violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran.
In Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Iran has alleged that the Trump Administration’s unilateral withdrawal from the Joint Comprehensive Plan of Action (“JCPOA”) — i.e., the Iran Nuclear Deal — and its reimposition of nuclear-related sanctions against Iran constitute violations of the treaty.
The case exemplifies part of Iran’s multilateral strategy to stave off the bite of U.S. sanctions, which have not only wreaked havoc on the country’s economy but also significantly hampered the Islamic Republic’s ability to control numerous outbreaks of COVID-19, making Iran the worst-hit country in the Middle East.
But more broadly, the case highlights the continuing significance of treaties in international law, even when intervening events may render them outdated and irrelevant. Despite the United States’ unilateral statement of withdrawal from the 1955 Treaty of Amity in late 2018, the United States is still mounting a vigorous legal defense before the ICJ justifying the legality of its withdrawal.
Considering past ICJ rulings interpreting the 1995 Treaty of Amity, it is likely that the ICJ will find the requisite jurisdiction to hear Iran’s complaints against the United States. And while the ICJ’s ruling will ultimately turn on narrow issues of treaty interpretation, the impact of this ruling will be felt outside of the chambers of the ICJ.
By and large, the 1955 Treaty of Amity is a relic of a bygone era of friendship, back when the United States regarded Iran as “an island of stability in one of the most troubled areas of the world.” But even after the parties severed formal diplomatic ties after the 1979 Iranian Revolution, the 1955 Treaty of Amity continued to be used as a legal pressure relief valve by which the United States and Iran could air their grievances — tempering nearly four decades of complicated relations, which have included hostage-taking, a tanker war, the U.S. Navy’s shooting down of an Iranian civilian airliner, and crippling economic sanctions.
Given the United States’ unilateral withdrawal, this case may very well be the last of its kind in a long line of ICJ cases where the United States and Iran sought legal reprieve before the ICJ despite having no formal diplomatic relations. Without the 1955 Treaty of Amity, the United States and Iran will tread a new and increasingly dangerous path outside of the bounds of the ICJ, and, indeed, international law.
A Brief History of the Case
On July 16, 2018, Iran went before the ICJ to bring a complaint against the United States for the Trump Administration's unilateral withdrawal from the JCPOA and the reimposition of sanctions on Iran as part of the Trump Administration’s “maximum pressure” policy. Iran argued that the parties failed to settle their disputes diplomatically and thus the ICJ was the appropriate venue to resolve its dispute per the 1955 Treaty of Amity. Clause 2 of Article XXI specifically states:
“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.”
Iran claimed that the JCPOA withdrawal and reimposition of sanctions violated clauses in the Treaty of Amity dealing with structuring and facilitating economic relations between the two countries, namely Clauses 1 and 2 of Article IV and Clause 1 of Article V. Iran premised such violations on how the United States’ actions would result in catastrophic damage to the Iranian economy. Furthermore, Iran requested provisional measures, asking that the ICJ require the United States to fully reinstate sanctions relief to stave off the reimposition of U.S. sanctions.
In response to Iran’s complaint, the United States submitted its Preliminary Objections, arguing that the ICJ lacks jurisdiction because Iran’s claims do not fall within the provisions of the Treaty of Amity, as the sanctions only apply to countries trying to do business with Iran and not Iran itself. In the alternative, the United States argued that the ICJ should decline to exercise jurisdiction because Iran’s claims amount to an abuse of process and the Court’s granting of jurisdiction would raise serious questions about judicial propriety in the ICJ.
On October 3, 2018, the ICJ unanimously granted Iran’s request for provisional measures and ordered the U.S. to lift sanctions on humanitarian goods, including medicine and food, but still leaving the vast majority of sanctions in place. On the same day as the ICJ’s orders of provisional relief for Iran, Mike Pompeo, U.S. Secretary of State, indicated that the United States would ignore the ICJ’s orders and announced the United States’ formal withdrawal from the 1955 Treaty of Amity.
Despite the United States’ unilateral departure from the 1955 Treaty of Amity, oral agreements began on September 14, 2020.
On behalf of the United States, Marik String, acting legal adviser for the State Department, opened oral arguments by arguing that the ICJ should grant deference to the Trump Administration's decision to unilaterally withdraw, as this was in the national security interests of the United States and within its rights as a sovereign nation. Citing Clauses (b) and (d) of Article XX, which provides for a national security exception, String cited the United States’ need to “address Iran’s destabilizing nuclear programme, as well as its ballistic missile activities, support for terrorism and regional destabilization, and the arbitrary and unlawful detention of U.S. nationals.”
String also argued that the disputed sanctions are targeted at third parties and not the Iranian government or people — i.e., U.S.-designated sponsors of terrorism and companies doing business with the Iranian government related to nuclear activity.
In response, Iran’s representative, Hamidreza Oloumiyazdi, head of Iran’s Centre for International Legal Affairs, contended that the Trump Administration exited the JCPOA and reimposed sanctions with “full knowledge of the severe hardship and suffering they would bring to the Iranian people and on Iran’s trade and economy” in violation of the 1955 Treaty of Amity. Oloumiyazdi’s oral arguments highlighted the effect that sanctions have had on the Iranian economy, wreaking havoc on Iran’s currency and significantly hampering people’s ability to access food, medicine and humanitarian aid. Oloumiyazdi asked that the tribunal reject the United States’ argument that the ICJ has no grounds for jurisdiction.
While String concluded his arguments by stating that the United States has “absolutely no desire to cause suffering to the Iranian people,” Oloumiyazdi responded by concluding his oral arguments on a somber note by declaring that “the United States’ actions speak louder than its words.”
The Case Moving Forward
Given the ICJ’s past rulings on Clause 2 of Article XXI of the 1955 Treaty of Amity, it appears very likely that the Court will reject the United States’ objections to the Court’s jurisdiction to hear the case. To date, the court has not rejected either the United States’ or Iran’s invocation of Article XXI to bring a case before the ICJ.
For example, in the Oil Platforms case and the more recent Certain Iranian Assets case in 2019, the ICJ ruled that the provisions of Article XX “do not restrict its jurisdiction but merely afford the Parties a defence on the merits.”
Therefore, it would appear that the United States and Iran are in for a protracted case on the merits before the ICJ.
The United States’ Continued Willingness to Appear Before the ICJ
Despite protests from Trump Administration officials regarding the ICJ’s decision to hear the case, it is significant that the U.S. government has chosen to respect the process and authority of the ICJ by participating in oral argument on the question of jurisdiction. This willingness to appear on behalf of the United States shows that, despite significant changes in circumstances, outdated treaties still can remain relevant in settling and framing international disputes.
Furthermore, by sending a team of government attorneys and mounting a vigorous defense, the United States has demonstrated its commitment to reciprocity in international relations and international law. The United States’ participation in this case, despite calling the ICJ’s granting of Iran’s provisional measures “politicized and ineffective,” was to signal to other international players that the United States still acts in good faith and will adhere to its international obligations and commitments even in the most extreme of cases.
Whether or not the rest of the world buys into these signals is another question. The United States’ commitment to international law is often transactional. But those who believe in the legitimacy of international law may find solace that, even during an administration that is often hostile to it, the United States has continued to appear before the ICJ in cases involving Iran, thereby underwriting the ICJ’s legitimacy.
Cause for Concern
There is still cause for concern. Despite its decision to appear before the ICJ, the Trump Administration has still chosen to withdraw from the 1955 Treaty of Amity. In doing so, there appears to be even fewer non-lethal means by which the U.S. and Iran can resolve disputes. As the killing of General Soleimani and the subsequent January 2020 Crisis illustrated, an international standoff without any diplomatic channels for dialogue or international legal reprieve can quickly escalate into a tit-for-tat and full-scale confrontation. Though the 1955 Treaty of Amity may be obscure and outdated, the world is a more dangerous place without it.
A Glimmer of Hope?
With the recent victory of Joseph R. Biden, Jr. in the 2020 U.S. Presidential Election, however, there is a glimmer of hope for the future of U.S.-Iran relations. In response to Biden’s victory, President Hassan Rouhani of Iran stated that he hopes “the future U.S. administration learns from this three-year experience and obeys the law and regulations and returns to all its obligations, and that the dear people of Iran see the reward of their patience, resistance and endurance.”
Domestically, however, Rouhani has long been besieged by criticism and battered by conservative opposition due to the failure of the JCPOA to bear fruit and his administration’s failure to revive the economy in light of U.S. sanctions and international isolation. With Iran’s 2021 Presidential Election looming in June and Rouhani unable to run due to Iran’s two-term limit, the Rouhani Administration’s window to negotiate with the Biden administration is fast-closing as Iran’s reformists are positioned to lose to conservatives who are unlikely to negotiate with the United States and engage with the West.
Looking to the future Biden Administration, the President-elect has stated his desire for the U.S. to reenter the JCPOA as a “as a starting point for follow-on negotiations,” so long as Iran “returns to strict compliance with the deal” by halting or rolling back parts of its nuclear program. However, Biden’s ability to reenter the deal and negotiate with Iran may be limited by a complicated domestic political scene, including a divided Congress and militant opposition to U.S. relations with Iran from Israel and the Persian Gulf kingdoms.
Further complicating the matter, the Trump administration is poised to turn this glimmer of hope into nothing more than a mirage. In the background of this aspirational and hopeful rhetoric, the Trump Administration is planning a slew of last-minute sanctions on Iran with the goal of cementing Trump’s “maximum pressure” policy well beyond Trump’s tenure.
Beyond Enmity and Amity
While leaders on both sides have signaled their willingness to return to the negotiating table and adhere to their obligations of the JCPOA, this moment feels all too familiar for longtime observers of U.S.-Iran relations. Since Iran’s 1979 Revolution, the Islamic Republic and the United States have oscillated between detente and brinkmanship time and time again, with leaders on both sides using the boon of peace and the threat of war to play to domestic and international audiences alike. As the final drama of the 1955 Treaty of Amity plays out before the ICJ, leaders on both sides have a choice to make: to use the decades-old script of U.S.-Iran relations or forge a new path forward.
However, caught in the midst of this dizzying political theater are people whose lives have been shaped — and destroyed — by decades of saber-rattling, sanctions, and embargoes. Whereas, in Washington, a policy of sanctions and embargoes may be a convenient and cost-effective solution for those seeking to punish Iran’s government, their costs are increasingly borne by an exhausted and desperate Iranian people. Similarly, in the United States, discourse about the United States’ decades of adventurism in the Middle East has changed as a war-weary population increasingly demands restraint abroad and that, instead, its leaders focus their attention on pressing issues at home.
Even in its waning moments, the 1955 Treaty of Amity reminds us that, in the world of geopolitics, nothing is permanent. Just as what was once seen as a permanent and steadfast friendship between Iran and the United States faded into the ever-shifting sands of history, so, too, can this period of enmity.
Given the decades of hostile relations and mounting grievances, it is likely unrealistic to expect Iran and the United States to normalize diplomatic relations in the short term. However, peace and reconciliation are not out of the question. For the sake of those suffering and for the sake of generations to come, leaders must take advantage of this window of hope and opportunity to forge a new path beyond the nearly four decades-old cycle of brinkmanship and detente — somewhere beyond enmity and amity.
The author is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law.