International Court of Justice Orders United States to Lift Certain Sanctions Against Iran

On October 3, the International Court of Justice (ICJ) issued an order that directed the United States to remove any impediments arising from certain portions of the sanctions that the United States imposed on Iran on May 8, 2018.  Those sanctions related to President Donald Trump’s decision “to cease the United States’ participation in the Joint Comprehensive Plan of Action (JCPOA) [regarding Iran’s nuclear program], and to begin re-imposing the U.S. nuclear-related sanctions that were lifted to effectuate the JCPOA sanctions relief, following a wind-down period.”

The litigation arose from Iran’s July 16, 2018 application to the ICJ to institute proceedings against the United States.  The application alleged that the United States, through the May 8 and announced further sanctions, had breached various Articles of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States (1955 Treaty).  It requested the ICJ to order the United States “to terminate the 8 May sanctions without delay” and “immediately [to] terminate its threats with respect to the announced further sanctions.”  It also requested provisional measures requiring that the United States (1) “immediately take all measures at its disposal to ensure the suspension of the implementation and enforcement of all of the 8 May sanctions, including the extraterritorial sanctions, and refrain from imposing or threatening announced further sanctions and measures which might aggravate or extend the dispute submitted to the Court;” and (2) “immediately allow the full implementation of transactions already licensed, generally or specifically, particularly for the sale or leasing of passenger aircraft, aircraft spare parts and equipment.”

The order first found that the ICJ had prima facie jurisdiction in the case because the dispute between the Parties relates to the interpretation or application of the 1955 Treaty.  It then reviewed Iran’s claims and concluded that

at the present stage of the proceedings, some of the rights asserted by Iran under the 1955 Treaty are plausible in so far as they relate to the importation and purchase of goods required for humanitarian needs, such as (i) medicines and medical devices; and (ii) foodstuffs and agricultural commodities; as well as goods and services required for the safety of civil aviation, such as (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and safety-related inspections) necessary for civil aircraft.

The order also found that “a link exists between some of the rights whose protection is being sought and certain aspects of the provisional measures being requested by Iran,” and that the ICJ would exercise certain provisional measures because there was a risk of irreparable consequences, pertaining to humanitarian and safety concerns, before the ICJ gives its final decision.

Accordingly, the ICJ unanimously directed three provisional measures:

1. It directed the United States to remove any impediments arising from the May 8 sanctions to the free exportation to the territory of the Islamic Republic of Iran of three categories of goods and services: (1) medicines and medical devices; (2) foodstuffs and agricultural commodities; and (3) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation.
2. It directed the United States to “ensure that licences and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction” insofar as they relate to the three preceding categories of goods and services.
3. It directed both Iran and the United States to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

In response, United States Secretary of State Mike Pompeo announced that the United States would terminate the 1955 Treaty.  He asserted that the ICJ had no jurisdiction to hear the matter and deemed the case “meritless.” The United States Ambassador to the Netherlands, Peter Hoekstra, seconded the Secretary’s remarks via Tweet.

Note:  As the ICJ has no power to enforce its order, its order in this case will do nothing to hamper the United States’ current and prospective imposition of Iranian sanctions.  Iran can be expected to continue to litigate the case in the ICJ for a final adjudication, which is expected to take years.  In the meantime, both sides can claim a measure of victory: Iran, for the symbolism of besting the United States in the ICJ; and the United States, for a ruling that left untouched the vast bulk of its current Iran sanctions.  Their responses yesterday, however, indicate that neither nation intends to comply with the last provisional measure, “refrain[ing] from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”