Thursday, July 19, 2018

Iran, the United States and the International Court of Justice - The Saga Continues

While the Western mainstream media has its panties in a knot about the Trump - Putin summit in Helsinki, in other parts of the world, news is still happening.  As such, I present you with the following document which was filed with the International Court of Justice or ICJ on July 17th, 2018:

The International Court of Justice is the judicial arm of the United Nations and was established under the United Nations Charter in 1945.  Its purpose is two-fold:

1.) to settle in accordance with international law legal disputes submitted by States.

2.) to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. 

Here is a list of its current members:

While its decisions are binding, the court has no power to enforce them and they are frequently ignored.  One of the best known cases was Nicaragua v. US in 1986 which argued Nicaragua's dispute against the United States and America's responsibility for military and paramilitary activities against and inside Nicaragua.  The ICJ ruled in favour of Nicaragua, finding that the United States had violated international law by funding the Contra rebellion against the Nicaraguan government as well as mining its ports and internal waters and awarded reparations to Nicaragua.  As you will see later in this posting, it is interesting to note that the ICJ found that the United States had acted in violation of its obligations under the January 1956 Treaty of Friendship, Commerce and Navigation (FCN) as shown here:

"In respect of the claim that the United States activities have been such as to deprive the 1956 FCN Treaty of its object and purpose, the Court has to make a distinction. It is unable to regard all the acts complained of in that light; but it does consider that there are certain activities of the United States which are such as to undermine the whole spirit of a bilateral agreement directed to sponsoring friendship between the two States parties to it. These are: the direct attacks on ports, oil installations, etc., referred to in paragraphs 81 to 86 above; and the mining of Nicaraguan ports, mentioned in paragraph 80 above. Any action less calculated to serve the purpose of "strengthening the bonds of peace and friendship traditionally existing between" the Parties, stated in the Preamble of the Treaty, could hardly be imagined."

In this case, the United States argued that the ICJ did not have jurisdiction and refused to participate in the merits phase of the court proceedings.  The U.S. attempted to rely on its inherent right of collective self-defence as guaranteed in the U.N. Charter, a defense strategy that was tossed out by the ICJ. 

Let's go back to the subject of this posting.  Iran has instituted proceedings against the United States for violations of the Treaty of Amity, Economic Relations, and Consular Rights Between the United States of American and Iran which was signed on August 15, 1955.  Here are some of the key excerpts from the Treaty:

"Each High Contracting Party (the United States and Iran) shall at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws.

Property of nationals and companies of either High Contracting Party, including interests in property, shall receive the most constant protection and security within the territories of the
other High Contracting Party, in no case less than that required by international law. Such property shall not be taken except for a public purpose, nor shall it be taken without the prompt payment of just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof.

Neither High Contracting Party shall impose restrictions or prohibitions on the importation of any product of the other High Contracting Party or on the exportation of any product to the territories of the other High Contracting Party, unless the impor- tation of the like product of, or the exportation of the like product to, all third countries is similarly restricted or prohibited.(my bold)

Here are some of the facts of the case as Iran sees them:

"The facts in support of this request for the indication of provisional measures are set out in more detail in the Application instituting proceedings. In summary, the USA decided to re-impose in full effect and enforce the 8 May sanctions that the USA had previously lifted in connection with the Joint Comprehensive Plan of Action (the “JCPoA”), on the spurious pretext that Iran would be maintaining a military nuclear programme, which is notoriously wrong.

On 16 January 2016, the President of the USA acknowledged “the fundamental shift in circumstances with respect to Iran’s nuclear program” and lifted a series of so-called “nuclear-related sanctions” and restrictive measures as provided for in the JCPoA.

Since 2015, the International Atomic Energy Agency (“IAEA”) has consistently verified that Iran has been in full compliance with its obligations under the Safeguards Agreement, as well as with its voluntary nuclear-related commitments under the JCPoA and the Additional Protocol8 including the “non-diversion of declared nuclear material in Iran” and the absence of undeclared material.

Nevertheless, as explained in Iran’s Application, on 8 May 2018, the USA decided that it will “begin re-imposing the US nuclear-related sanctions.”  The USA’s underlying reasons for “re-imposing” sanctions are notoriously wrong. For example, one day after the official announcement of the 8 May sanctions by the USA, the IAEA Director- General declared “that the nuclear-related commitments are being implemented by Iran.”

The EU13 and other JCPoA Participants have officially endorsed the IAEA’s findings.

The US decision is unsupported by the international community. The Secretary General of the United Nations15, as well as all the other JCPoA Participants16 and other States, consider that the US decision with respect to the 8 May sanctions does not serve the interests of international peace and security.

Some of these 8 May sanctions have already started to be re-imposed. The Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services (JCPoASLP) was revoked immediately as of 8 May 2018.

… the US Secretary of State has declared, with respect to sanctions targeting Iran, Iranian companies and Iranian nationals, that “new ones are coming” and that “this is just the beginning.” According to the US Secretary of State, “[t]hese will indeed end up being the strongest sanctions in history when we are complete.”  Threatening to issue new sanctions is part of the overall US sanctions policy. The threat of itself creates significant additional damage to the Iranian economy, and to the Iranian people, by creating uncertainty for all actors who would wish to have any economic relationship with Iran, and by deterring any such relationship, even if that relationship is not currently covered by the scope of sanctions."

In case you weren't aware or had forgotten, this is not Iran's first lawsuit against the United States.  In June 2016, Iran instituted proceedings against the United States, stating that the claims against Iran granted by U.S. courts totalling over $56 billion (largely because Iran has been designated as a state sponsor of terrorism) are in breach of the same 1955 treaty cited in the recent actions as shown here:

Public hearings in this case will be held from Monday October 8th to Friday October 12th, 2018 with the hearings devoted to the Preliminary Objections raised by the United States which include the jurisdiction of the Court (same as in the Nicaragua case) and admissibility of the application by Iran.   

What can we learn from this?  First, Washington has a long track record of reneging on international agreements that it signs (for a complete listing click here), the most recent highly publicized example being the Joint Comprehensive Plan of Action or JCPOA which it signed (along with China, France, Russia, Germany and the United Kingdom) with Iran in an attempt to curtail Iran's alleged nuclear weapons program.  Given the historical precedents set, the only thing that should have surprised Iran was that Washington took so long to break its obligations under the Plan.  As well, given what happened with Nicaragua v. US, we can pretty much assure ourselves that the United States will ignore any rulings by the JCOPA that go against its plans for the Axis of Evil.

1 comment:

  1. I wish we had stayed in JCPOA and I'm sure you a right that we put our interest in combating Nicaragua's pro Soviet regime above our interest in supporting international law in the 1986 interest. I'm also sure that we broke a lot of treaties with the Indians in the 19th century. But i disagree that we are ore untrustworthy than other sovereign nations such as UK, Canada, Russia, Germany. We have friends and allies all over the world because we are reasonably trustworthy. Until Trump became President we were a good ally.