This article is written by Sumith Suresh Bhat.
The on-going tussle between Iran and the United States of America has gained prominence all over the world and countries are closely watching even the smallest of developments. The US has slapped a series of sanctions against Iran, the latest of which will come into effect from 4 November 2018. Iran, obviously taking a hit economically, has tried its best to overcome the sanctions using all possible means. One such effort by Iran was made when it challenged the sanctions imposed by the US before the highest judicial authority in the world, the International Court of Justice (ICJ).
On 8 May 2018, the US imposed sanctions on Iran, which barred financial transactions, trade in metals, importing of Iran-made carpets and foodstuffs and export of commercial passenger aircraft and parts to Iran. The 8 May order of the US also imposed sanctions on any state that violated the orders and supplied the ‘barred’ goods and services to Iran. It also threatened to impose additional sanctions in November, which would affect Iran’s oil trade in the region, on which a large part of its economy depends.
Iran challenged the 8 May sanctions before the ICJ on 16 July 2018 alleging that the sanctions violated the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the US (Treaty of Amity), which the two nations entered into when their relationship was far less volatile in 1955. The US defended itself by claiming that the matters stated in the case were outside the scope of the Treaty of Amity. Now, just as in the case of domestic litigation, cases before the ICJ tend to take several years before any meaningful decision is obtained. However, the ICJ also takes another cue from domestic litigation, wherein it has the right to hear and pass orders on interim applications called ‘applications for provisional measures’. Iran filed such an application for provisional measures seeking intervention of the ICJ by ordering the US to put a hold on its sanctions until final disposal of the case.
This is where the Jadhav case came into the picture
When the hearing of the case began at the ICJ, the Court first decided to look into Iran’s application for provisional measures. The preliminary issue that propped up in the application was whether the Court has prima facie jurisdiction to pass an order on the application for provisional measures. This is where the Jadhav case came into the picture. In the Jadhav case between India and Pakistan, India had also sought provisional measures in requesting the ICJ to order Pakistan to suspend Kulbhushan Jadhav’s execution. In that case, the ICJ held that it may indicate provisional measures only if the provisions relied on by India, appeared prima facie, to afford a basis on which the Court’s jurisdiction could be founded. However, the ICJ also noted that it did not need to satisfy itself in a definitive manner that it had jurisdiction as regards the merits of the case. Based on this decision of the ICJ, Iran only had to ensure that the provisions it relied on appeared prima facie to afford jurisdiction to the Court regarding the merits of the case. Iran did so by citing Article XXI, paragraph 2 of the Treaty of of Amity which stated as follows:
“Any dispute between the High Contracting Parties as to the interpretation or application of the resent 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.”
The text in the Article within the Treaty of Amity was clear. The Court was pleased to accept that the US and Iran had both agreed that there was a dispute in question and it concerned the “interpretation or application” of the Treaty of Amity. Therefore, the court held that it did appear to possess prima facie jurisdiction with regard to the case.
A second instance in the same order where the Jadhav case was cited by the Court was when it was deciding whether there was a need to pass an order for provisional measures. In the Jadhav case, the ICJ had held that provisional measures could be indicated where there was a risk of irreparable prejudice being caused to the rights which are subject to the judicial proceedings. In the Jadhav case, the Court observed that such irreparable prejudice would be caused to India’s consular rights under the Vienna Convention on Consular Relations if Kulbhushan Jadhav was executed. The US for its part argued that there was no risk of irreparable prejudice and blamed any domestic impact as a result of the sanctions on the Iranian Government. It also argued that economic risks are reparable in nature and hence the sanctions could in no way cause irreparable prejudice. In the present case between Iran and the US, the Court held that the sanctions imposed by the US have the potential to endanger civil aviation and life in Iran since Iran was dependent on spare parts and services from the US for its aviation sector and relied on imported medicines and foodstuffs for its people. Therefore, the Court held entailed irreparable prejudice to Iran’s rights. The Court also observed that there was a sense of urgency as the US has threatened to impose additional sanctions in November 2018.
The ICJ went on to unanimously pronounce in its orders that the US shall remove any impediments arising from its 8 May sanctions to the free exportation of medicines, medical devices, foodstuffs, agricultural commodities as well as spare parts, equipment and associate services necessary for the safety of civil aviation to the Islamic Republic of Iran. It is a different matter altogether that the US completely disregarded the order of the ICJ and immediately withdrew from the Treaty of Amity, thereby nullifying the very basis on which Iran had made its case. However, the case has shown the importance of the observations in the Jadhav case and how it will continue to be used in international jurisprudence in future. Here’s the link to the Court’s judgment.
