The Analysis of the ICJ Order in the Case Concerning “Alleged Violations of the Treaty of Amity” (Iran v. US): Who Is the Real Winner?

[Niloufar Omidi is a Ph.D. Candidate at the Irish Centre for Human Rights, NUI Galway.]

On 3^rd October 2018, the International Court of Justice (ICJ) delivered its order on the request for the indication of provisional measures submitted by Iran in the case regarding alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States of America. The Court’s order on provisional measures, which has a binding effect for any party addressed, raised some controversial political and legal issues. While some considered it a victory for Iran, others alleged that this decision was made as a result of abusing the Court for political and propaganda purposes by Iran, and as a result, Washington decided to withdraw from the 1955 Treaty following the ICJ provisional order. This article endeavours to analyse this provisional order to explore its legal effects on international legal practice, and to determine in whose favour the order has been issued.

The claim followed the decision by the president of the United States on 8 May 2018 concerning the ending of the United States participation in the Joint Comprehensive Plan of Action (JCPOA), leading to the re-imposition of sanctions lifted or waived in connection with the JCPOA on Iran. The United States president indicated that this decision was made due to some violations of the JCPOA by Iran, including the public declaration by Iran that it would not allow the International Atomic Energy Agency (IAEA) to have access to military sites and the two-time violation of the JCPOA’s heavy-water stockpile limits by Iran in 2016. Accordingly, he announced that the United States will re-impose sanctions concerning financial transactions, trade in metals, Iranian-origin carpets and foodstuffs, in addition to the export of commercial passenger aircraft and related parts.

The Court concluded that based on the available evidence and Article XXI, paragraph 2, of the 1955 Amity Treaty, prima facie, it has jurisdiction to deal with the case, concerning the dispute between the parties in regard to the “interpretation or application” of the Treaty. While the United States did not deny the rights of Iran as indicated by the 1955 Treaty, it referred to Article XX, paragraph 1 of the 1955 Treaty, which entitles it to adopt measure “necessary to protect its essential security interests”.

The Court explored the idea that at least some of the rights claimed by Iran under the 1955 Treaty were plausible and that disregarding them may entail irreparable consequences, particularly regarding the importation and purchase of goods required for humanitarian needs and services for the safety of civil aviation. Accordingly, the Court unanimously indicated three points. Firstly, the United States, in accordance with its obligation under the 1955 Treaty of Amity, must 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 Iran of medicines and medical devices, along with foodstuffs and agricultural commodities, in addition to spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation. Secondly, the United States must ensure that licences and necessary authorisations 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 the first point. Thirdly, the Court indicated that both parties must refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

This decision is noteworthy in at least three aspects:

• It proved that the 1955 Treaty, as an international legal instrument, even in the last moments of its life, has served as a strong humanitarian protection to maintain dignity and the worth of the human person, which is the fundamental aim of progressive international law. This treaty has constantly enabled the international judicial system to advocate justice (e.g. cases concerning United States Diplomatic and Consular Staff in Tehran 1980 (US v. Iran), and Oil Platforms 2003 (Iran v. US)). Therefore, as Judge Trinadade asserted in his separate opinion, “[t]his Treaty is not frozen in time; it is to be interpreted, as the ICJ itself makes it clear, taking into account also factors extending beyond the text itself of the 1955 Treaty”.
• The ICJ recognised its own jurisdiction prima facie to order the provisional measures of protection in order to prevent irreparable harm in situations of gravity and urgency, irrespective of the allegation of “national security interests”, considering the objectives and purposes of the 1955 Treaty of Amity and the Court’s Statute. In fact, the ICJ considered human dignity as the normative basis for the progressive realisation of international human rights law that can determine the limits of entitlements and duties. In the Court’s view, the dignity of human being is above national security interests, and human values cannot be sacrificed for other purposes. The similar practice can be observed in the Court’s provisional order regarding Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) on 19 April 2017. Thus, the principle of respect of the dignity of the human person is a general principle of law that activates the autonomous legal regime of provisional measures of protection.
• The unanimous adoption of this decision reveals that justice is beyond the nationality considerations. Thus, in a fair judicial system, human dignity and the rule of law are not overlooked even by an ad hoc judge appointed by the respondent state.

At this juncture, it should be considered that although the ICJ decision confirmed the power of international legal agreements, it must be considered that the spirit of treaties should be constantly respected and obeyed. There is no doubt that propaganda against another party to a treaty, and fuelling hostility between two sides of treaties, will kill the spirit of a treaty concerning a friendly relationship between two countries. The 1955 Treaty of Amity has been damaged for many years by hostile and hateful speeches, in addition to grave violations of its obligations. This treaty is aimed at establishing “a firm and enduring peace and friendship between the parties” (Article I), but in practice, the parties have become distant from the aims of the Treaty.

It should be borne in mind that the mere establishment of a treaty aimed at peaceful relations is not able to guarantee peace and security, but is rather only an avenue aimed towards social and political reconstruction, considering the historical roots of disputes. It requires the full implementation of the cessation of hostilities and the fulfilment of all commitments to create conditions for a durable end of hostilities, and consequently lasting peace. In order to consolidate a peace agreement, various issues are required to be addressed, such as the elimination of hate speech, disarmament and the constant intention to continue peaceful settlements of disagreements in good faith. Therefore, the realisation of a peaceful relationship or a durable termination to all disputes is a dynamic process beyond the negotiation process resulting in a treaty.

Any agreement aimed at a friendly and peaceful relationship can be threatened, if its spirit is ignored. The JCPOA, as one of the significant international legal instruments, was designed to avert war and maintain international peace, as consistent with Article 2(3) of the UN Charter regarding the peaceful settlement of disputes. This plan has been able to prevent another war in the Middle East and North Africa (MENA), whereas the nuclear ambitions of Iraq and Libya had led to them engaging in two wars in that region. However, the spirit of this agreement is fragile to hostile speech from the parties, or to war-centred policies such as the development of ballistic missiles or involvement in proxy wars, which is inconsistent with the intent set out in the JCPOA. Therefore, not only should the nuclear-related commitment under the JCPOA be adequately implemented, but any measure which might potentially harm the spirit of this agreement should also be actively avoided.

The ICJ decision demonstrated the extent to which international agreements are sufficiently powerful to secure peoples’ rights in a fair trial; however, it has highlighted the spirit of these agreements that should be dynamically protected. Additionally, the ICJ proved that it acts beyond a judicial inter-state system, having a people-centred approach that goes along with the formula of Goal 16 of the UN 2030 Agenda for Sustainable Development concerning peace, justice and strong institutions, which aims to ensure that “no one is left behind”. Thus, this decision is a victory for people who have been victimised by hostile policies. In fact, the Court’s order is in favour of a vulnerable nation who is the right-holder, as a result of the rule of law. Therefore, as the Court asserts, both states are merely duty-bearers with a responsibility to avoid committing any action which might worsen the dispute to be resolved before the Court.