The complicated and interwoven regime of the US sanctions against the Islamic Republic of Iran, especially over the last decade, is a clear example of planning an integrated law system for implementing the hostile US foreign policy goals. Under the conditions of “No war, No negotiation” holding between the two countries, the U.S. is preoccupied with blindly expanding its unilateral regime of sanctions; sanctions that are practically a part of the lawfare against Iran. In recent years, we have been increasingly witnessing the conversion of “law” to a powerful weapon against the adversaries, especially by the big powers. If in the past it was possible to advance the foreign policy by war and impose it on the rivals through war, now and in many cases, laws have replaced wars (or at least are alongside them) and the foreign policy goals are operationalized by legal tools in the target countries. In the face of such strategy, the Islamic Republic of Iran, too, has tried by utilizing its legitimate tools in the international tribunals to challenge the illegality of the US hostile actions with the International Law discourse.
The International Court of Justice ruled it has jurisdiction to hear Iranian claim against US over breaching the 1955 Treaty of Amity, economic relations and consular rights. The court’s recent order is a preliminary legal victory against the US illegitimate eroding legal campaign. By ascertaining its jurisdiction over the file, the court formally entered the proceedings on the merits of Iran’s claims against the US for “ Re-imposing economic unilateral sanctions and intensifying restrictive measures” against the Iranian government, people and companies and its noncompliance with the provisions of the 1955 Treaty of Amity between the two countries, and now there is the opportunity for the evidence and arguments for the numerous remedies for damages inflicted on the Iranian nation as a result of the imposition of unilateral sanctions from May 8, 2018 on to be offered at an international tribunal.
The International Court of Justice is an international judicial tribunal and one of the pillars of the UN located in the Hague (Netherlands), composed of 15 judges and its “contentious cases” for the state parties are legally binding. In the recent jurisdictional judgment, the court ruled out all US preliminary objections to Iran’s claims unanimously or by majority vote, and thus, found itself competent to uphold the proceedings on the merits of the court. This was the second legal victory for Iran in the case since the issuance of the order of October 3, 2018, request for indication of provisional measures. The subject-matter of the provisional measures was the Iranian government’s concerns and considerations about the inhumane and irremediable impacts of the sanctions, and ordered the United States to immediately “remove, by means of its choosing, any impediments to the export to Iran of medicine, medical devices, foodstuffs, agricultural commodities, and spare parts, equipment and services necessary for the safety of civil aviation.” Although the contents of the provisional measures of the court have not been fully implemented by the US, as indicated in the jurisdiction order, the court is committed, at the proceedings on the merits, to address the issue of the US noncompliance with the provisional measures.
However, Iran’s claims are not limited to the sanctions related to the humanitarian items and the Iranian government has put on the court table a group of economic unilateral sanctions and restrictive measures against the Iranian government, people and companies for violating the provisions of the 1955 Treaty of Amity. These sanctions were imposed on Iran as per Trump’s executive order and following the US withdrawing from the JCPOA on May 8, 2018, leading US to falsely claim in its preliminary objections that Iran’s claims were based on the JCPOA and lacked any relations with the Treaty of Amity between the two countries. An objection that was unanimously rejected by the court. By examining the US claims based on the previous precedents the court announces that determining the subject-matter of the dispute as a judicial function of the court must be performed by the court itself and through listening to the defenses of the parties and interpreting them. The court decides the subject-matter of the dispute by an objective basis, while giving particular attention to the formulation of the dispute chosen by the applicant (section 51 to 53 of the order).
The fact that the dispute between the parties has arisen in connection with and in the context of the decision of the United States to withdraw from the JCPOA does not in itself preclude the dispute from relating to the interpretation or application of the Treaty of Amity. Certain acts may fall within the ambit of more than one instrument and a dispute relating to those acts may relate to the “interpretation or application” of more than one treaty or other instrument, to the extent that the measures adopted by the US following its decision to withdraw from the JCPOA might constitute breaches of certain obligations under the Treaty of Amity, those measures relate to the interpretation or application of that treaty. (section 56 of the order)
The Treaty of Amity guarantees obligations in support of the nationals and companies of the two countries in terms of imports, exports, financial transactions, observing the acquired rights and interests, and inhibition of discriminatory behavior as well as freedom of trade. Based on this, the American attorneys argued that even if Iran’s dispute had been premised on the Treaty of Amity ( and not the JCPOA) , the measures referred to by Iran are basically irrelevant to the US sanctions, and in fact, were related to third country measures, therefore staying outside ambit of the Treaty of Amity; Thus, the court does not have jurisdiction for judicial proceedings. The court’s judgment on this objection of the US was unanimously negative. Based on the court’s standpoint, the mere fact that some of these measures or as the US claims the vast majority of them have targeted the nationals and companies of third countries, is not adequate ground to put these measures outside the scope of the Treaty of Amity (secion 81 of the order). Therefore, only through a detailed examination of each of the measures in question, of their reach and effects, can the court determine whether they affect the performance of the US obligations arising out of the provisions of the Treaty of Amity invoked by Iran, taking account of those various provisions. Therefore, the US’s second preliminary objection brings up matters related to the merits of the dispute between the parties, which will be examined in the proceedings on the merits by the court. For this, even the US-appointed judge could not be persuaded by the US attorneys’ arguments and rejected the US preliminary objections at the jurisdiction stage.
In addition to the previous objections, the US attorneys attempted at the preliminary proceedings to base the exceptions of Article XX (1), the fissionable materials and the US basic security interests as grounds for its sanctions and ask the court to disconfirm its jurisdiction at the very stage of proceedings. A collection of measures related to Iran’s nuclear activities and what the US calls Iran’s destabilizing and terrorist actions was brought up with the court to lead the court’s judges to the conclusion that the US sanctions had been designed under the exceptions of article 20 of the agreement and were not breach of the agreed commitments of that country. The judges of the court rejected the argument concerning the fissionable and radioactive materials and the materials arising from them by 15 votes against and one for ( by the US-appointed judge) and also the objection related to exception of measures related to the basic security interests of the US was unanimously rejected. Also, the court also deferred proceedings of the accusations to the merits stage and concluded that none of the aforesaid objections precluded the court’s jurisdiction for proceeding with the case.
The government that lodges preliminary objections with the court, is not only inclined to impede issuance of a verdict in relation to the merits of a dispute, but it seeks to prevent discussing subject-matter of the dispute in a legal manner. Based on this, it seems the US approach towards the sanctions is turning legal disputes into a political subject, and through this is willing to engage in a political manner with Iran rather than discussing legitimacy of its actions, to make the best out of its diplomatic bargaining. In the US opinion, where the matter takes a legal aspect, the power leverage inconsistently acts in an eroding manner and rebalances the power equilibrium between the US and the hostile government to the advantage of the other party. This is exactly the US motivation that drives that government toward using law not as a tool for justice but one for leveraging pressure and advancing its foreign policy.
As a result of this dual approach to the law, the US attempts, on one side, to present its unilateral sanctions in a legal outfit, and on the other side, impede any legal assessment of their legitimacy at an international court; because the US basically sees the international law as a multifaceted tool which in some cases squeezes unilaterism and tips the balance of power in favor of weaker countries. For this, we have to wait and see what the new US administration’s approach be, which has come to power on a campaign trail advocating for multilaterism and respect of the international institutes and mechanisms, toward Iran’s lawsuit against the US breach of the Treaty of Amity with the court. Some believe that Iran’s emphasis on this issue and advancing the case at the stage of merits will lead to the Biden administration, despite his opposition to the Trump administration over the sanctions and withdrawal from the JCPOA, being caught in a situation forced to defend the re-imposition of the sanctions at the International Court of Justice. Adopting such a policy could result in conflict between the political and legal approaches of the new US administration toward the issue of sanctions. Yet, this analysis takes more study and tests, but the assumption is that the basis for Iran’s claims against the US at the court will be the same as that in the JCPOA and the nuclear talks.
Usually it is presumed that law is a tool and guarantee for politics, and where diplomacy warrants or opens a way, law must be used at the advantage of diplomacy. It has to be noted the relations between law and politics are more complicated than predetermined absolute premises and in some cases quite the contrary; politics warrants that diplomacy back the political disputes turning into legal disputes. Rights have semantical consistency with the concept of justice and exercising justice entails compensating the damages done in the past and present and providing binding guarantees for the future. It is in such an environment that governments will have motivation to bring and pursue legal cases to the international courts and institutions and seek legal conviction and judgments for remedies (if possible) for the breaches done in the past that may have impacts in future.
Iran’s preliminary victory at the ICJ is a clear sign of balance of power in international relations which can be attained for the country only through legal pleas and defenses with the court. As long as the US lawfare continues against Iran, along with domestic efforts to neutralize sanctions, Iran must plan a defense approach based on the internal laws and rules. Although the interests and expedience of the countries can be simultaneously the subject of law and diplomacy, their basic separation can keep both leverages for securing national interests; in a way that sometimes diplomacy refers the subjects concerning justice to legal proceedings at impartial institutes to tangibly reduce the inflammations of the controversial subjects or unequal power of one side. From this point of view, law and diplomacy both are, in the general meaning of the word, at the service of politics and by utilizing both of them politics can exercise justice in a balanced way.
Soheil Golchin, Researcher of International Law studies
(The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)