Substantive Jurisdiction of International Court of Justice in the Case of Violation of Treaty of Amity, Economic Relations, and Consular Rights (1955)

Document Type : Original Independent Original Article

Authors

• Faramarz Yadegarian ¹
• Mohsen Mohebi ²
• Amir Hossein Molkizadeh ³

¹ M.A. student in International Law, Faculty of Divinity, Political Science and Law, Science And Research Branch, Islamic Azad University, Tehran, Iran. And M.A. Graduate in Democracy and Human Rights, The Institute for Social Sciences and Humananities, The Hague, Netherlands.

² Assistant Prof, Department of public and International law, Faculty of Divinity, Political Science and Law, Science And Research Branch, Islamic Azad University, Tehran, Iran.

³ Assistant Prof. at Law Department,, Mashhad Branch, Islamic Azad University, Mashhad, Iran

Abstract

Highlights

Introduction

Following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) and the reinstatement of unilateral sanctions against Iran, Iran sued the US in the ICJ, claiming that the US had violated the Treaty. Iran filed the complaint with the ICJ on July 16, 2018. Iran asked for the revocation of the unilateral sanctions, as well as payment for the treaty violation and economic damages brought on by the sanctions, citing Article 36 of the ICJ Statute and Paragraph 2 of Article 21 of the Treaty. Iran also asked for a temporary injunction based on Article 41 of the Statute and articles 73 and 75 of the ICJ's Rules of Procedure. Therefore, the main question this study addresses is whether the ICJ has jurisdiction over the substance of the case.

Therefore, this study aims to the ICJ’s jurisdiction over the substance of this case. The research hypothesis also indicates that the US has clearly violated the Treaty, which is regarded as a living instrument of international law and one of the sources of international law, as stated in Article 38 of the ICJ Statute. Based on the review of previous decisions, similar cases, different aspects of the case, and the arguments of the parties, it can be concluded that the ICJ has jurisdiction over the substance of this case, and the US is required to compensate Iran for violating its extensive obligations and return the situation to pre-trial state.

 

Methodology

This meta-analysis reviewed the reports and verdicts of the ICJ on previous similar cases. Considering the novelty of the research subject and the paucity of Farsi references on the ICJ’s substantive jurisdiction in this case, this study focused on documents and procedures of the ICJ to legally support the research hypothesis and arguments.

 

Findings

Three of the five preliminary objections made by the US to the ICJ's jurisdiction were fully rejected by the court. The ICJ also declared that the other two objections pertain to the substantive stage. Therefore, the lawsuit will be dismissed in its entirety if these two objections are recognized at the substantive stage. Otherwise, the final verdict will be in favor of Iran. These two objections are as follows:

• As the US argues, the Treaty concerns trade between Iran and the US, whereas the US sanctions have only specifically targeted a small number of businesses and third parties. Therefore, the Treaty has nothing to do with sanctions against Iran and, thereby, the ICJ lacks jurisdiction over the substance of this case. If this objection is raised during the substantive stage, it will be dismissed for the reasons listed below:
• The terms “trade” and “free trade” are general concepts contained in Article 10 of the Treaty, and any action that restricts “free trade” is prohibited.
• Trade is not confined to a specific territory; it encompasses all activities for the export, import, and exchange of goods.
• The ICJ has implicitly referred to US sanctions against Iran's oil exports regarding the case of oil platforms.
• The terms of the Treaty are being violated by the way the US is treating Iranian businesses, products, and people as well as by the sanctions imposed on Iran.
• The US punitive sanctions against third-party companies and countries that trade and exchange goods with Iran go against the principles of free trade.
• Regarding the assets case about the violation of the Treaty, the ICJ’s verdict required the US to reimburse Iran.
• The US raised a third type of preliminary objection to the ICJ's jurisdiction, referring to Article 79 of the ICJ's Rules of Procedure. This article identifies the objections that the court must consider before making a substantive decision. The US argues that Iran's complaint is out of the ICJ’s jurisdiction because it relates to nuclear materials and US national security, as stated in notes B and D of Paragraph 1 of Article 20 of the Treaty.
• Based on Article 21 of the 1956 treaty, the ICJ addressed a similar claim at the substantive stage of the US-Nicaragua dispute; the ICJ declared that economic sanctions are not a necessary and appropriate measure to protect national interests. Consequently, if the objection pertaining to Note D of Paragraph 1 of Article 20 is raised once again during the substantive sage of the Treaty violation case, it will be dismissed once again.
• Regarding Paragraph B, it should be noted that it only addresses the freedom of action regarding the purchase, sale, import, or export of fissile materials, allowing the parties to take any necessary action in this direction. Therefore, it does not create a barrier to any party's ability to develop nuclear knowledge. Based on the objectives of the Treaty, it can be stated that Note B of Paragraph 1 of Article 20 was also in the right direction given the circumstances surrounding the conclusion of the Treaty and its intention to facilitate commercial issues between the parties. This implies that the Treaty cannot impede the parties’ nuclear activities and any related actions, including the purchase, sale, and exchange of fissile materials. Therefore, Therefore, the US claim will be denied once more if this objection is raised at the substantive stage.

 

Results

It is clear from the ICJ's adherence to its prior verdicts and opinions as well as the evidence and arguments presented in this study that the ICJ has jurisdiction over the substance of this case. Furthermore, based on the US legal arguments during the jurisdictional stage to confirm the ICJ's lack of jurisdiction, it can be concluded that the final verdict will be issued in favor of Iran.

The US has violated Paragraphs H (Introduction) and articles 21, 22, 26, 28, 29, 30, and 36 of the JCPOA, articles 3, 4, 14, 15, and 19 of Resolution 2231, articles 25 and 103 of the United Nations Charter, and Article 2 (Paragraph 1), Article 4 (paragraphs 1 and 2), Article 5 (Paragraph 1), Article 7 (Paragraph 1), Article 8 (paragraphs 1 and 2), Article 9 (paragraphs 2 and 3), and Article 10 of the Treaty. Therefore, under international laws and regulations, the US should lift its illegal sanctions, return the situation to its previous state, and compensate for damages caused to Iran's people and economy. To have a stronger executive guarantee than the joint commissions, Iran needs to introduce the ICJ as a competent authority for dispute resolution in future agreements and also include the conditions of reference to the ICJ in the event of a dispute or misinterpretation. Additionally, these agreements are recommended to be approved by the parties' respective parliaments and internal authorities. As a result, the political agreements and contracts become official treaties, providing the highest level of executive guarantee in the event of a violation. If the above-mentioned conditions were established, the US could not unilaterally withdraw from the JCPOA if it had any objections; instead, the US should pursue the case through the ICJ procedures.

Keywords

• Treaty of Amity
• and Consular Rights (1955)؛ International Court of Justice (ICJ)؛ Substantive jurisdiction of ICJ؛ Violation of Treaty of Amity
• Economic Relations
• and Consular Rights (1955)؛ Resolution 2231؛ Joint Comprehensive Plan of Action (JCPOA)

Main Subjects

• International Court of Justice