Author: James D. Fry*
Published: November 2017
Description:
Introduction
On June 14, 2016, Iran submitted an application [“ICJ Application”] to the International Court of Justice [“ICJ”] against the United States of America for “a broad series of measures against Iran and Iranian companies […] which are in violation of the United States’ obligations under the Treaty of Amity,” referring to the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States [“Treaty of Amity”]. This case—known as the Certain Iranian Assets case—represents the fourth ICJ case between Iran and the United States. Like the third case, Iran submitted this application in accordance with Article XXI(2) of the Treaty of Amity, which states:
Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.
In its 2016 ICJ Application, Iran asserted that “[t]he dispute has not been satisfactorily adjusted by diplomacy, and there has been no agreement to settle the dispute by some pacific means other than the Treaty of Amity,” and so the ICJ has jurisdiction under the Treaty of Amity’s compromissory clause. However, a review of the bilateral and multilateral agreements to which both Iran and the United State are a party reveals several agreements that frustrate the ICJ’s exercise of jurisdiction in this case. The two most prominent agreements are the 1981 Algiers Accords, which established the Iran-U.S. Claims Tribunal [“Tribunal”], and the 2015 Joint Comprehensive Plan of Action (otherwise known as the Iran Nuclear Deal or the JCPOA), which led Iran to curtail its enrichment efforts and the United States and Europe to lift many of their sanctions on Iran. This article posits that Iran and the United States have agreed to have the Iran-U.S. Claims Tribunal and the JCPOA Dispute Settlement Mechanism handle the claims contained in Iran’s 2016 ICJ Application, thereby undermining the ICJ’s jurisdiction with regard to handling Iran’s application. Both the Tribunal and the JCPOA Dispute Settlement Mechanism should be left to interpret and apply the Algiers Accords’ General Declaration and the JCPOA, respectively, to see if there has been a violation of these agreements. At a minimum, Iran must give these other peaceful methods a chance to resolve the claims Iran has presented in its ICJ Application before turning to the ICJ. If Iran fails to do so, the ICJ must decline jurisdiction over Iran’s application.
This article is divided into four parts, including this introduction and an equally brief conclusion in Parts I and IV, respectively. Part II describes the “broad series of measures” Iran alleges the United States took, which act as the foundation for Iran’s ICJ Application. Part III explores how these alleged acts fall within the jurisdiction of the Iran-U.S. Claims Tribunal and the JCPOA Dispute Settlement Mechanism, thereby removing them from the ICJ’s jurisdiction. When in doubt, it should be the Tribunal that decides whether it has jurisdiction, given that Iran and the United States authorized the Tribunal to interpret and apply the Algiers Accords, which involve forward-looking obligations such as a prohibition on the United States from interfering in Iran’s internal affairs. The same is true with the JCPOA Dispute Settlement Mechanism. In short, both the Algiers Accords and the JCPOA undermine the International Court of Justice’s jurisdiction over this particular case.
*Associate Professor of Law and Director of the LL.M. Program, The University of Hong Kong Faculty of Law. The author thanks Antonia Chayes, Mark Clodfelter, Pierre-Marie Dupuy, Michael Glennon, Kazuhiro Nakatani and anonymous reviewers for their encouragement and feedback on earlier drafts of this article.