Moon of Alabama
Earlier today the International Court of Justice (ICJ) issued a provisional judgment (pdf, 29 pages) against some of the U.S. sanction against Iran. The ruling is a preliminary injunction over urgent humanitarian issues that will later be followed by a final judgment.
The U.S. responded by canceling the treaty the gave the court jurisdiction over the case.
The ICJ is the main judicial organ of the United Nations and settles legal disputes between member states. The rulings of the court, based in The Hague, are binding. But there is no global police force that can make the U.S. government follow the court's ruling.
Nevertheless the judgment sets a precedent that other courts will use when more specific cases against the U.S. sanctions against Iran come up. A company that loses business because of the sanctions may sue the U.S. over financial losses. An ICJ ruling on the illegality of the U.S. sanctions will then be used by a local court, even an American one, as reference.
The core of the ruling says:
Indicates the following provisional measures:
The United States of America, in accordance with its obligations under the 1955 Treaty of Amity, Economic Relations, and Consular Rights, shall remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of
(i) medicines and medical devices;
(ii) foodstuffs and agricultural commodities; and
(iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation;
The United States of America shall ensure that licences and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services referred to in point(1);
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
The provisional judgment, comparable to an injunction, was issued because of the imminent humanitarian damage the U.S. sanctions cause to Iran. The final judgment may take a year and is likely to be much wider. After today's unanimous ruling the general direction of the outcome is not in question.
The U.S. had claimed that the the court has no jurisdiction over the issue of its sanctions against Iran.
Iran argued that U.S. sanctions are in violations of the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States of America (pdf), which was signed at Tehran on 15 August 1955. That treaty gave the ICJ jurisdiction over disputes between the two countries in all issues related to it.
The court accepted Iran's view.
The United States on Wednesday called an international court ruling against its Iran sanctions a defeat for Tehran as it terminated a 1955 treaty on which the case was based…
Secretary of State Mike Pompeo noted that the UN court did not rule more broadly against US sanctions and he insisted that the United States already exempted humanitarian goods from the sanctions.
"The court's ruling today was a defeat for Iran. It rightly rejected all of Iran's baseless requests," Pompeo told reporters.
The preliminary injunction is obviously a victory for Iran. The court has not yet judged on the wider issue of the U.S. sanctions. Having read the argument I am convinced that the final judgment will only confirm this win. The ruling is a big loss for the Trump administration. It shows the world that the U.S. is the one and only entity which is in breach of the 1955 treaty, the nuclear agreement with Iran (JCPOA) and the unanimous resolution of the UN Security Council endorsing the nuclear deal.
Pompeo's announcement of the canceling of the treaty is somewhat schizophrenic. It accepts the ruling and transgresses on it:
- The U.S. would not have canceled the treaty without the court's judgment that is based on the treaty. With today's canceling, or the announcement thereof, the U.S. admits that the court intervention based on the treaty is legally correct. This contradicts its earlier argument.
- The canceling of the treaty today transgresses on the courts judgment. Measure three of the court's ruling orders the parties to not make the issue more difficult to resolve. Canceling the treaty now makes the case more difficult and aggravates and extends the dispute in violation of the court order.
The U.S. is in fact mocking the court. It is unlikely that any court will accept the clearly upcoming U.S. claim that the treaty no longer exists, that the ICJ has lost jurisdiction over the case and that its orders can thus be ignored. One can not simply change a contract after being found guilty of violating it. The case will be going to a final judgment under the 1955 treaty because that set the legal status when the case was brought to the court.
Pompeo and other will undoubtedly argue that the ruling does not matter for the U.S. and that transgressing it will have no costs. That underestimates the effect of such a ruling on lower national courts. It will be them that will judge about the seizure of U.S. assets when claims of economic damage are brought up against the U.S. and its sanction regime.
The case will also weigh on the global opinion. It makes it more difficult for other governments to follow the U.S. sanction regime.