Iran vs. USA (Order of the International Court of Justice of October 3, 2018)

I.     Background

In 2006, following reports by the International Atomic Energy Agency (“IAEA”), the Security Council of the United Nations adopted a number of resolutions calling upon Iran to cease some of its nuclear activities in compliance with its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons ratified by Iran in 1970.

In July 2015, China, France, Germany, the Russian Federation, the United Kingdom and the United States, with the High Representative of the European Union for Foreign Affairs and Security Policy and the Islamic Republic of Iran, adopted a long-term Joint Comprehensive Plan of Action (“JCPOA”) concerning Iran’s nuclear program. The declared purpose of the JCPOA was to ensure the exclusively peaceful nature of Iran’s nuclear program and to reach a lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear program, including access in areas of trade, technology, finance and energy. A Joint Commission was established to monitor the implementation of the JCPOA. The IAEA was requested to monitor and verify the implementation of the voluntary nuclear-related measures. Concurrently, the Security Council of the United Nations adopted resolution 2231 (2015), whereby it endorsed the JCPOA and urged its full implementation according to the agreed schedule. In the same resolution, the Security Council provided, in particular, for the termination of provisions, under certain conditions, of previous Security Council resolutions on the Iranian nuclear issue and set out measures of implementation of the JCPOA.

In January 2016, the President of the United States issued Executive Order 13716 revoking or amending certain number of earlier Executive Orders on nuclear-related sanctions imposed on Iran or Iranian nationals.

 

II.     Actions of the USA

In May 2018, the President of the United States issued a National Security Presidential Memorandum announcing the end of the participation of the United States in the JCPOA and directing the re-imposition of sanctions lifted or waived in connection with the JCPOA. In the Memorandum, the President indicated that “Iranian or Iran-backed forces have gone on the march in Syria, Iraq, and Yemen, and continue to control parts of Lebanon and Gaza”. He further stated that Iran had publicly declared that it would deny the IAEA access to military sites and that, in 2016, Iran had twice violated the JCPOA’s heavy-water stockpile limits. The Presidential Memorandum determined that it was in the national interest of the United States to re-impose sanctions “as expeditiously as possible”, and “in no case later than 180 days” from the date of the Memorandum. The Memorandum further specified, inter alia, that the Secretary of State and the Secretary of the Treasury were to prepare any necessary executive actions to “re-impose sanctions lifted by Executive Order 13716 of January 16, 2016”; to prepare to re-list persons removed, in connection with the JCPOA, from any relevant “sanctions lists”, as appropriate; to revise relevant “sanctions regulations”; and to issue limited waivers during the wind-down period, as appropriate.

Simultaneously, the United States Department of the Treasury – Office of Foreign Assets Control (“OFAC”) announced that sanctions would be re-imposed in two steps. Upon expiry of a first wind-down period of 90 days, ending on 6 August 2018, the United States would re-impose a certain number of sanctions concerning, in particular, financial transactions, trade in metals, the importation of Iranian-origin carpets and foodstuffs, and the export of commercial passenger aircraft and related parts. Following a second wind-down period of 180 days, ending on 4 November 2018, the United States would re-impose additional sanctions.

Also, in August 2018, the President of the United States issued Executive Order 13846 re-imposing certain sanctions on Iran and Iranian nationals. In particular, it sets Blocking Sanctions Relating to Support for the Government of Iran’s Purchase or Acquisition of U.S. Bank Notes or Precious Metals; Iran’s Energy, Shipping, and Shipbuilding Sectors and Port Operators; Correspondent and Payable-Through Account Sanctions Relating to Iran’s Automotive Sector; Trade in Iranian Petroleum, Petroleum Products and Petrochemical Products; Iran’s Automotive Sector; The Iranian Rial; The Transfer of Goods or Technologies to Iran that are Likely to be Used to Commit Human Rights Abuses, and Censorship. Executive Order 13846 excludes, however, activities aimed at conducting or facilitating a transaction for the provision (including any sale) of agricultural commodities, food, medicine or medical devices to Iran.

 

III.     Reaction of IRAN

In July 2018, the Islamic Republic of Iran filed in the Registry of the International Court of Justice an Application instituting proceedings against the United States of America with regard to alleged violations of the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States of America, which was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957. Iran requested the Court, inter alia, to adjudge, order and declare that the USA, through the announced sanctions referred to above, has breached its obligations to Iran under the abovementioned Treaty of Amity and that the USA shall, therefore, terminate the sanctions without delay.

 

IV.     Summary of the Order of the ICJ

In October 2018, the International Court of Justice issued an Order indicating the following provisional measures:

(1) The United States of America, in accordance with its obligations under the 1955 Treaty of Amity, Economic Relations, and Consular Rights, shall remove, 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;

(2) The United States of America shall ensure that licenses and necessary authorizations are granted, and that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services referred to in point (1) above;

(3) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Source: The International Court of Justice, Case #175.

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