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Iran Initiates Suit Against the United States in the International Court of Justice, While Sanctions Take Effect

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In the wake of President Trump's decision to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA) and reimpose sanctions, Iran instituted proceedings against the United States before the International Court of Justice (ICJ). In its application, filed on July 16, 2018, Iran alleged that the re-imposition of sanctions constituted a violation of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Treaty of Amity) between Iran and the United States. In order to prevent “irreparable damages” to the Iranian economy, Iran simultaneously filed a request for provisional measures. After the ICJ issued an order unanimously granting limited provisional measures on October 3, 2018, the United States announced its intention to terminate the Treaty of Amity. The United States issued its first phase of sanctions on August 7, 2018, and the remaining sanctions took effect on November 5, 2018.

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1 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Request for the Indication of Provisional Measures, 2018 ICJ (July 16), available at https://www.icj-cij.org/files/case-related/175/175-20180716-REQ-01-00-EN.pdf [hereinafter 2018 Request for the Indication of Provisional Measures].

2 Donald J. Trump, Remarks on the Joint Comprehensive Plan of Action to Prevent Iran from Obtaining a Nuclear Weapon and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 310 (May 8).

3 Joint Comprehensive Plan of Action, July 14, 2015, 55 ILM 98, 108 (2016). The JCPOA was quickly followed by the Security Council's passage of Resolution 2231, which “[c]all[ed] upon all Member States … to take such actions as may be appropriate to support the implementation of the JCPOA, including by … refraining from actions that undermine implementation of commitments under the JCPOA.” SC Res. 2231, paras. 1–2 (July 20, 2015).

4 Presidential Memorandum, Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran's Malign Influence and Deny Iran All Paths to a Nuclear Weapon (May 8, 2018), at https://www.whitehouse.gov/presidential-actions/ceasing-u-s-participation-jcpoa-taking-additional-action-counter-irans-malign-influence-deny-iran-paths-nuclear-weapon [https://perma.cc/5MTH-GG9F].

5 See Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 514, 518-19 (2018) (providing a more detailed discussion of the presidential memorandum and its implications).

6 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Application Instituting Proceedings, 2018 ICJ (July 16), available at https://www.icj-cij.org/files/case-related/175/175-20180716-APP-01-00-EN.pdf [hereinafter 2018 Application Instituting Proceedings].

7 Id., para. 50(a)–(c).

8 Id., para. 50(e).

9 Treaty of Amity, Economic Relations, and Consular Rights, Iran-U.S., Aug. 15, 1955, 8 UST 899 [hereinafter Treaty of Amity]. The Senate advised and consented to the Treaty of Amity on July 11, 1956. 102 Cong. Rec. 12244 (1956).

10 Treaty of Amity, supra note 9; see also 2018 Application Instituting Proceedings, supra note 6, paras. 39–49 (setting forth the arguments of Iran with respect to these provisions).

11 Treaty of Amity, supra note 9, Art. XXI(2); see also 2018 Application Instituting Proceedings, supra note 6, paras. 5–7 (invoking this provision and detailing Iran's efforts to raise the issue with the United States prior to bringing the case through a diplomatic note transmitted by Switzerland).

12 Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Pleadings, 1979 ICJ, at 7 (Nov. 29), available at https://www.icj-cij.org/files/case-related/64/9545.pdf (quoting Article II(4) of the Treaty of Amity). In its judgment of May 24, 1980, the ICJ concluded that Iran had breached its international legal obligations, including with respect to the Treaty of Amity, and was bound to release the U.S. hostages and make reparation to the United States. Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1979 ICJ 3 (Nov. 29), available at https://www.icj-cij.org/files/case-related/64/064-19800524-JUD-01-00-EN.pdf.

13 Oil Platforms (Iran v. U.S.), Application Instituting Proceedings, 1992 ICJ (Nov. 2), available at https://www.icj-cij.org/files/case-related/90/7211.pdf. The ICJ delivered a final judgment on November 6, 2003, in which it concluded that neither the United States nor Iran had breached its obligations under the Treaty of Amity, thus rejecting Iran's claim and the United States’ counterclaim for reparation. Oil Platforms (Iran v. U.S.), Judgment, 1992 ICJ 161 (Nov. 2), available at https://www.icj-cij.org/files/case-related/90/090-20031106-JUD-01-00-EN.pdf.

14 Certain Iranian Assets (Iran v. U.S.), Application Instituting Proceedings, 2016 ICJ (June 14), available at https://www.icj-cij.org/files/case-related/164/164-20160614-APP-01-00-EN.pdf (focusing on cases brought in the United States under the exception to state immunity under the Foreign Sovereign Immunities Act for state-sponsored terrorism); see also Certain Iranian Assets (Iran v. U.S.), at https://www.icj-cij.org/en/case/164 (listing the filings and proceedings in the pending case).

15 2018 Request for the Indication of Provisional Measures, supra note 1, para. 25.

16 Id., para. 42(a).

17 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Order, 2018 ICJ, at para. 12 (Oct. 3), available at https://www.icj-cij.org/files/case-related/175/175-20181003-ORD-01-00-EN.pdf [hereinafter October 3 Order] (quoting the U.S. letter) (alterations in original).

18 See id.

19 Treaty of Amity, supra note 9, Art. XX(1); see also Oct. 3 Order, supra note 17, paras. 34, 37 (summarizing the U.S. arguments); cf. U.S. Dep't of State Press Release, On U.S. Appearance Before the International Court of Justice (Aug. 27, 2018), at https://www.state.gov/secretary/remarks/2018/08/285411.htm [https://perma.cc/3C8Z-TQAC] (describing Iran's arguments as “meritless” and “a misuse of the Court”).

20 October 3 Order, supra note 17, para. 102. Judge Donoghue did not participate in the case. In her stead, the United States selected Charles Brower as an ad hoc judge. Id., para. 9.

21 Id., paras. 41–44 (finding jurisdiction “at least” with respect to “the revocation of licenses and authorizations granted for certain commercial transactions between Iran and the United States, the ban on trade of certain items, and limitations to financial activities”).

22 Id., paras. 68–69 (ellipsis in original).

23 Id., para. 102; see also id., para. 91 (finding that irreparable prejudice with respect to the health and safety of Iranians would rise from the absence of the limited provisional measures granted).

24 U.S. Dep't of State Press Release, Remarks to the Media (Oct. 3, 2018), at https://www.state.gov/secretary/remarks/2018/10/286417.htm [https://perma.cc/29C4-5RKK] [hereinafter Pompeo Remarks of Oct. 3]. For more discussion of the U.S. withdrawal from this treaty, see Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 133 (2019).

25 Treaty of Amity, supra note 9, Art. XXIII(2)–(3). It is unclear whether the United States has provided formal written notice to Iran in accordance with the terms of the Treaty of Amity.

26 Pompeo Remarks of Oct. 3, supra note 24; see also Galbraith, supra note 24 (quoting additional remarks by Pompeo with respect to the termination of the Treaty of Amity). When the United States withdrew from the Optional Protocol to the Vienna Convention on Consular Relations in 2005, it “emphasized that the ICJ's interpretation of the Vienna Convention was unexpected” and “that it would comply with the judgments against it that the ICJ had already issued.” Helfer, Laurence, Exiting Treaties, 91 Va. L. Rev. 1579, 1628 (2005); see also Medellin v. Texas, 552 U.S. 491, 503 (2008) (describing President George W. Bush's efforts to comply with the ICJ judgment in the Avena case).

27 See Pompeo Remarks of Oct. 3, supra note 24 (not providing a direct answer when asked “does the ruling of the World Court, does that have any practical impact on … U.S. sanctions”). The ICJ has determined in a prior case that provisional measures are binding on the parties as a matter of international law. LeGrand Case (Ger. v. U.S.), Judgment, 2001 ICJ 466, paras. 98–109 (June 27), available at https://www.icj-cij.org/files/case-related/104/104-20010627-JUD-01-00-EN.pdf (concluding that provisional measures are binding in light of the power vested in the ICJ in Article 41 of the Statute of the ICJ).

28 U.S. Dep't of the Treasury, Resource Center, OFAC FAQ: Iran Sanctions, FAQ Nos. 297, 318–484, at https://www.treasury.gov/resource-center/faqs/Sanctions/Pages/faq_iran.aspx#297 [https://perma.cc/R9R6-6WBS] (discussing these exceptions and the requirements for meeting them); see also National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, at § 1245(d)(2), 125 Stat. 1298, 1648 (2011) (“The President may not impose sanctions [under another subsection of this statutory provision] with respect to any person for conducting or facilitating a transaction for the sale of agricultural commodities, food, medicine, or medical devices to Iran.”); Elena Chachko, What to Make of the ICJ's Provisional Measures in Iran v. U.S. (Nuclear Sanctions Case), Lawfare (Oct. 4, 2018) (discussing the existing U.S. exceptions and how they were raised in the ICJ proceedings).

29 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ 14, para. 36 (June 27) (measuring jurisdiction based on the time the case was filed and stating that “‘[a]n extrinsic fact such as the subsequent lapse of the Declaration [or, as in the present case also, the Treaty containing a compromissory clause], by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established’”) (quoting Nottebohm Case (Liech. v. Guat.), Judgment, 1953 ICJ 111, 123 (Nov. 18)) (alteration in original).

30 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Order, 2018 ICJ (Oct. 10), at https://www.icj-cij.org/files/case-related/175/175-20181010-ORD-01-00-EN.pdf. In the week between the U.S. announcement of withdrawal from the Treaty of Amity and the order setting the pleading schedule, the United States “vigorously defend[ed]” itself in oral proceedings in the ICJ in the Certain Iranian Assets case, which, as noted supra note 14, was also brought pursuant to the Treaty of Amity. U.S. Dep't of State Press Release, On U.S. Appearance Before the International Court of Justice (Oct. 8, 2018), at https://www.state.gov/secretary/remarks/2018/10/286504.htm [https://perma.cc/6966-F4DA].

31 See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 13, cmt. 7, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (stating that “once responsibility has accrued as a result of an internationally wrongful act, it is not affected by the subsequent termination of the obligation, whether as a result of the termination of the treaty which has been breached or of a change in international law”).

32 See id. Art. 14, cmt. 8 (“The consequences of a continuing wrongful act will depend on the context, as well as on the duration of the obligation breached”); see also, e.g., Case Concerning the Difference Between New Zealand and France Concerning the Interpretation of Application of Two Agreements Concluded on 9 July 1986 Between the Two States and Related to the Problems Arising from the Rainbow Warrior Affair, paras. 114–15, UNRIAA, Vol. XX (Sales No. E/F.93.V.3) (1990) (considering that reparations would be justified but not ordering cessation because “an order for the cessation or discontinuance of wrongful acts or omissions is only justified in case of continuing breaches of international obligations which are still in force at the time the judicial order is issued”).

33 “Do Not Play with Lion's Tail”: Rouhani Warns Trump, Al Jazeera (July 22, 2018), at https://www.aljazeera.com/news/2018/07/play-lion-tail-rouhani-warns-trump-180722162909627.html.

34 Donald J. Trump (@realDonaldTrump), twitter (July 22, 2018, 8:24 PM), at https://twitter.com/realDonaldTrump/status/1021234525626609666.

35 Erin Cunningham & Bijan Sabbagh, After Trump Slams Iran's President, Iranian Officials Accuse Him of “Psychological Warfare, Wash. Post (July 23, 2018), at https://www.washingtonpost.com/world/middle_east/after-trump-slams-irans-president-iranian-officials-accuse-him-of-psychological-warfare/2018/07/23/2cf18d78-023c-4be0-9e63-505b87d0047d_story.html; Rick Gladstone, Iranian General Locks Horns with Trump, Escalating Threat-Filled Feud, N.Y. Times (July 26, 2018), at https://www.nytimes.com/2018/07/26/world/middleeast/suleimani-iran-trump.html.

36 Michael D. Shear & Rick Gladstone, Trump Says He Would Meet with Iranian Leader, but Iran Rules It Out, N.Y. Times (July 30, 2018), at https://www.nytimes.com/2018/07/30/us/politics/trump-iran-rouhani.html?rref=collection%2Fsectioncollection%2Fpolitics.

37 David E. Sanger, Iran's Terms to Reopen Nuclear Talks? Trump Has to Back Down, N.Y. Times (Sept. 24, 2018), at https://www.nytimes.com/2018/09/24/world/middleeast/iran-nuclear-talks-trump-rouhani.html.

38 Exec. Order No. 13,846, 83 Fed. Reg. 38939 (Aug. 6, 2018).

39 Id.

40 Donald J. Trump, Statement from the President on the Reimposition of United States Sanctions with Respect to Iran, 2018 Daily Comp. Pres. Doc. No. 523 (Aug. 6).

41 The first phase of sanctions instituted by the Trump administration against Iran's non-energy related markets “provoke[ed] an exodus of international firms from Iran and contribut[ed] to a dramatic decline in the value of Iran's currency.” Tamer El-Ghobashy, U.N. Watchdog Says Iran Continues To Comply with Nuclear Restrictions Despite U.S. Pullout, Wash. Post (Aug. 30, 2018), at https://www.washingtonpost.com/world/2018/08/30/un-watchdog-says-iran-continues-comply-with-nuclear-restrictions-despite-us-pullout/?utm_term=.5ac6492c968c.

42 Int'l Atomic Energy Agency [IAEA], Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015), IAEA Doc. GOV/2018/33 (Aug. 30, 2018).

43 European External Action Serv. Press Release, Implementation of the Joint Comprehensive Plan of Action: Joint Ministerial Statement, para. 6 (Sept. 24, 2018), at https://eeas.europa.eu/headquarters/headquarters-homepage/51036/implementation-joint-comprehensive-plan-action-joint-ministerial-statement_en.

44 European External Action Serv. Press Release, Joint Statement by High Representative Federica Mogherini and Foreign Ministers Jean-Yves Le Drian et al. (Nov. 2, 2018), at https://eeas.europa.eu/headquarters/headquarters-homepage/53230/joint-statement-high-representative-federica-mogherini-and-foreign-ministers-jean-yves-le_en.

45 Id.

46 Id. This “Special Purpose Vehicle” would work to shield foreign companies from the U.S. sanctions by providing an alternative method for companies to move money in and out of Iran rather than relying on Western banks. Peter Eavis, Europe Plans a Way to Evade Sanctions on Iran. Will It Work?, N.Y. Times (Oct. 4, 2018), at https://www.nytimes.com/2018/10/04/business/dealbook/iran-sanctions-europe.html; see also Steven Erlanger, As U.S. Sanctions on Iran Kick In, Europe Looks for a Workaround, N.Y. Times (Nov. 5, 2018), at https://www.nytimes.com/2018/11/05/world/europe/us-iran-sanctions-europe.html.

47 See Gardiner Harris, U.S. Softens Demand That Countries Stop All Iran Oil Imports, N.Y. Times (July 2, 2018), at https://www.nytimes.com/2018/07/02/world/middleeast/us-iran-oil-imports-sanctions-.html.

48 U.S. Dep't of State Press Release, Briefing on Iran Sanctions (Nov. 2, 2018), at https://www.state.gov/secretary/remarks/2018/11/287090.htm [https://perma.cc/C7NT-XEGE]; see also Gardiner Harris, U.S. Reimposes Sanctions on Iran but Undercuts the Pain with Waivers, N.Y. Times (Nov. 2, 2018), at https://www.nytimes.com/2018/11/02/world/middleeast/us-iran-sanctions-oil-waivers.html.

49 Harris, supra note 48 (reporting that these waivers have an initial term of six months).

50 Donald J. Trump, Statement by the President Regarding the Reimposition of Nuclear-Related Sanctions on Iran (Nov. 2, 2018), at https://www.whitehouse.gov/briefings-statements/statement-president-regarding-reimposition-nuclear-related-sanctions-iran/ [https://perma.cc/7PNL-BKRN].

51 Id.

52 Id.

53 U.S. Dep't of Treas. Press Release, U.S. Government Fully Re-Imposes Sanctions on the Iranian Regime as Part of Unprecedented U.S. Economic Pressure Campaign (Nov. 5, 2018), at https://home.treasury.gov/news/press-releases/sm541 [https://perma.cc/G2JG-T2M6].

54 U.S. Dep't of State, Press Availability of Secretary of State Mike Pompeo with Secretary of Treasury Steven T. Mnuchin (Nov. 5, 2018), at https://www.state.gov/secretary/remarks/2018/11/287132.htm [https://perma.cc/6MNL-BU6A].

55 Iran Will Break US Sanctions: President Rouhani, PressTV (Nov. 5, 2018), at https://www.presstv.com/Detail/2018/11/05/579118/Iran-US-sanctions-President-Rouhani-break-sanction.

56 Id.

57 Int'l Atomic Energy Agency [IAEA], Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015), IAEA Doc. GOV/2018/47 (Nov. 12, 2018).

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