by Kaveh L. Afrasiabi
On October 3, 2018, the International Court of Justice (ICJ) delivered a stinging setback to the Trump administration’s bellicose policy toward Iran. The ICJ ordered the United States to respect humanitarian norms by suspending its sanctions on Iran in a number of key areas, including food, medicine, and aircraft spare parts. Although this “provisional” or “interim” ruling fell short of meeting all of Iran’s demands in its complaint against Washington in the ICJ based on the 1955 US-Iran Treaty of Amity, it nonetheless delivers enough (both direct and indirect) benefits to Iran to enable it to legitimately declare victory, despite U.S. claims to the contrary.
Iran seeks an order that the United States be restrained from continuing to engage in the harmful acts that clearly violate the two countries’ 1955 Treaty of Amity. That treaty, ratified by the US Senate in 1956, is aimed at promoting “mutually beneficial trade and investments and closer economic intercourse generally.”
In a nutshell, the treaty guarantees three sets of rights with respect to Iranian nationals and companies. First, it requires the United States to accord fair and equitable treatment to Iranian nationals and companies and to their property and enterprises. Second, it prohibits unreasonable or discriminatory measures that would impair the legally acquired rights and interests of Iranian nationals and companies. Third, it requires the United States to ensure that the lawful contractual rights of Iranian nationals and companies will be effectively enforced. Article IX of the Treaty also requires Washington to accord to Iranian nationals and companies treatment no less favorable than that accorded to nationals and companies of any other state with respect to all matters relating to the import and export of goods.
In its order, the ICJ noted that “the measures adopted by the United States have the potential to endanger civil aviation safety in Iran and the lives of its users to the extent that they prevent Iranian airlines from acquiring spare parts and other necessary equipment.” It also noted that the “restrictions on the importation and purchase of goods required for humanitarian needs, such as foodstuffs and medicines, including life-saving medicines, treatment for chronic disease or preventive care, and medical equipment, may have a serious detrimental impact on the health and lives of individuals on the territory of Iran.” It ruled that the United States “must remove any impediments” to Iran’s import of medicines and medical devices, foodstuffs and agricultural commodities, and spare parts, equipment, and related services needed by the civil aviation industry. Finally, it ordered Washington to ensure that licenses and payments covering these goods and services are not restricted.
As expected, both Secretary of State Mike Pompeo and National Security Advisor John Bolton not only questioned the court’s “jurisdiction” but also announced Washington’s withdrawal from the 1955 treaty (which, ironically, was signed only two years after the Central Intelligence Agency helped organize and carry out a coup against the democratically elected government in Tehran). The Treaty’s unilateral demise does not, however, translate into a fatal blow to Iran’s complaint. The retrospective withdrawal is immaterial to the legal context of new U.S. sanctions on Iran contested in Iran’s complaint. Following a long tradition in international law, the court decides the merits of a case according to existing agreements or treaties at the time of the dispute and not the subsequent, post-litigation, developments. In other words, the treaty will continue to be relevant to the court’s future proceedings on the case, particularly now that the initial ruling favors Iran on some issues. Per the court’s tradition, it is sufficient that the rights asserted be “grounded in a possible interpretation” of the treaty invoked. The injunction issued against the United States centers on Article 41 of the statute: “when irreparable prejudice could be caused to rights.”
Iran’s Foreign Ministry naturally welcomed the decision and described it “as another clear testament to the truthfulness of Iran and the illegitimacy and unfairness of the US sanctions.” It also underlined the fact that that the court explicitly cited UN Security Council Resolution 2231, which endorses the Iran nuclear accord (the Joint Comprehensive Plan of Action or JCPOA) that Donald Trump unilaterally abrogated last May. In paragraph 18 of its order, the court took note of Resolution 2231 without, however, clarifying the legal consequences of Washington’s violation of the resolution, which was binding on all UN member states.
Although theoretically “binding,” the court’s order sadly lacks the necessary teeth to compel U.S. compliance. At the same time, however, it offers compelling moral and ethical authority that adds to the isolation that Washington faces on its Iran policy. It will likely energize efforts to protect the Iran deal despite Washington’s exit, particularly in light of the considerable progress made recently by the other signatories toward establishing a special mechanism to continue trade with Iran by bypassing the dollar and the U.S. financial system. Thus, no matter how Pompeo tries to spin the ICJ’s decision as a “defeat” for Iran, there is little doubt that the ruling undermines his advocacy of “maximum economic pressure” on Iran and emboldens the (domestic and international) opponents of Trump’s hostile Iran policy.
According to Djamchid Momtaz, the ad hoc judge for Iran, the ICJ ruling is insufficient since, among other things, it has failed to instruct the United States to end its sanctions on sales of civilian aircraft to Iran. Contrary to Pompeo’s false claim that the United States is not blocking Iran’s access to “humanitarian” goods, the sanctions have effectively blocked the purchase of aircraft spare parts—the sorry state of Iran’s aging aircraft has resulted in numerous plane crashes—as well as the delivery and availability of life-saving medical supplies. The ICJ may still take Iran’s criticisms into consideration and issue another provisional ruling that would order Washington to allow the sale of civilian aircraft to Iran, notwithstanding the Trump administration’s cancellation of huge, post-JCPOA contracts with Boeing and Airbus.
Although the Trump administration had hoped to nip Iran’s complaint in the bud by renouncing the Amity Treaty, its move may in fact have the unintended consequence of tilting the court further in the direction of focusing on a hitherto marginal aspect of Iran’s complaint: Washington’s violation of international law. By making explicit reference to Resolution 2231, the ICJ is now poised to tackle the most important issue: is this resolution legally binding and, if so, is the U.S. re-imposition of sanctions a violation of international law?
As noted above, Resolution 2231 is legally binding on all member states as it is explicitly grounded in Articles 25 and 41 of the UN Charter, as well as by its assignment of new functions to the UN Secretariat, such as requiring it to issue regular reports on the JCPOA’s status and compliance. Henceforth, the ICJ could well base its findings and order on this resolution as well as the Treaty of Amity, which would be a welcome corrective to the actions taken by the Trump administration to weaken the global order and international norms.
Kaveh L. Afrasiabi is a former adviser to Iran’s nuclear negotiation team and the author of several books on Iran’s foreign affairs.