I. Factual background

• 24. In the present proceedings, Iran alleges violations by the United States of the Treaty of Amity, which was signed by the Parties on 15 August 1955 and entered into force on 16 June 1957 (see paragraph 1 above). It is not disputed by the Parties that on the date of the filing of the Application, namely, on 16 July 2018, the Treaty of Amity was in force. In accordance with Article XXIII, paragraph 3, of the Treaty of Amity, “[e]ither High Contracting Party may, by giving one year’s written notice to the other High Contracting Party, terminate the present Treaty [20] at the end of the initial ten-year period or at any time thereafter”. By a diplomatic Note dated 3 October 2018 addressed by the United States Department of State to the Ministry of Foreign Affairs of Iran, the United States, in accordance with Article XXIII, paragraph 3, of the Treaty of Amity, gave “notice of the termination of the Treaty”.

• 25. As regards the events forming the factual background of the case, the Court recalls that Iran is a party to the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968. According to Article III of this Treaty, each non-nuclear-weapon State party undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency (hereinafter the “IAEA” or “Agency”), for the exclusive purpose of verification of the fulfilment of its obligations assumed under the Treaty “with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices”. The Agreement between Iran and the Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons has [Page 178] been in force since 15 May 1974. In a report dated 6 June 2003, the IAEA Director General stated that Iran had “failed to meet its obligations under its Safeguards Agreement with respect to the reporting of nuclear material, the subsequent processing and use of that material and the declaration of facilities where the material was stored and processed”. In its resolution GOV/2006/14 of 4 February 2006, the Agency’s Board of Governors recalled

  Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement and the absence of confidence that Iran’s nuclear programme is exclusively for peaceful purposes resulting from the history of concealment of Iran’s nuclear activities, the nature of those activities and other issues arising from the Agency’s verification of declarations made by Iran since September 2002

and requested the Director General to report the matter to the Security Council of the United Nations.

• 26. On 29 March 2006, the President of the Security Council made a statement on behalf of the Council in which he referred to the Security Council’s serious concern regarding “Iran’s decision to resume enrichment-related activities, including research and development”. He further noted that the Security Council underlined “the particular importance of re-establishing full and sustained suspension” of these activities, “to be verified by the IAEA”.

• 27. On 31 July 2006, the Security Council, acting under Article 40 of Chapter VII of the Charter of the United Nations, adopted resolution 1696 (2006), in which it noted, with serious concern, Iran’s decision “to resume enrichment-related activities” and demanded “in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA”. The [21] Security Council further expressed its intention, in the event of non-compliance by Iran, to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations, “to persuade Iran to comply with [the] resolution and the requirements of the IAEA”.

• 28. On 23 December 2006, the Security Council, acting under Article 41 of Chapter VII of the Charter of the United Nations, adopted resolution 1737 (2006), in which it noted, with serious concern, inter alia, that Iran had not established “full and sustained suspension of all enrichment-related and reprocessing activities as set out in resolution 1696 (2006)”. The Security Council expressed its determination “to give effect to its decisions by adopting appropriate measures to persuade Iran to comply with resolution 1696 (2006) and [Page 179] with the requirements of the IAEA, and also to constrain Iran’s development of sensitive technologies in support of its nuclear and missile programmes”. Thus, in resolution 1737 (2006), the Security Council decided that Iran must suspend “all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA”, as well as “work on all heavy water-related projects, including the construction of a research reactor moderated by heavy water, also to be verified by the IAEA”. It further decided that all States must take the necessary measures to prevent the supply, sale or transfer of all items, materials, equipment, goods and technology which could contribute to Iran’s nuclear-related activities. Subsequently, the Security Council adopted further resolutions on the Iranian nuclear issue, namely, resolutions 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015).

• 29. On 26 July 2010, the Council of the European Union adopted Decision 2010/413/CFSP and, on 23 March 2012, Regulation No 267/2012 concerning nuclear-related “restrictive measures against Iran”, banning arms exports, restricting financial transactions, imposing the freezing of assets and restricting travel for certain individuals.

• 30. The United States, by Executive Orders 13574 of 23 May 2011, 13590 of 21 November 2011, 13622 of 30 July 2012, 13628 of 9 October 2012 (Sections 5 to 7, and 15) and 13645 of 3 June 2013, imposed a number of nuclear-related “additional sanctions” with regard to various sectors of Iran’s economy.

• 31. On 14 July 2015, China, France, Germany, the Russian Federation, the United Kingdom and the United States, with the High Representative of the European Union for Foreign Affairs and Security Policy, and Iran concluded the Joint Comprehensive Plan of Action (hereinafter the “JCPOA”) concerning the nuclear programme of Iran. The declared purpose of that instrument was to ensure the exclusively peaceful nature of Iran’s nuclear programme and to produce “the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear programme”.

• [22] 32. On 20 July 2015, the Security Council adopted resolution 2231 (2015), whereby it endorsed the JCPOA and urged its “full implementation on the timetable established [therein]”. In the same resolution, the Security Council provided, in particular, for the termination under certain conditions of provisions of previous Security Council resolutions on the Iranian nuclear issue and set out measures of implementation of the JCPOA. Annex A to Security Council resolution 2231 (2015) reproduced the text of the JCPOA.

• [Page 180] 33. The JCPOA describes, in particular, the steps to be taken by Iran within a set time frame, regarding agreed limitations on all uranium enrichment and uranium enrichment-related activities and addresses the co-operation of Iran with the IAEA. It provides for the termination of all sanctions adopted by the Security Council and the European Union, respectively, as well as the cessation of the implementation of certain United States sanctions (as described in Annex II to the JCPOA) concerning, in particular, the financial and banking system, investments, the petrochemical industry, the energy, shipping, shipbuilding and automotive sectors, and trade in commodities. Finally, the JCPOA contains an “Implementation Plan” as well as provisions regarding the resolution of disputes. These provisions establish a procedure to be used, should one of the participants complain that another participant is not meeting its commitments under the JCPOA.

• 34. On 16 January 2016, the President of the United States issued Executive Order 13716 revoking or amending a certain number of earlier Executive Orders on “nuclear-related sanctions” imposed on Iran or Iranian nationals.

• 35. On 8 May 2018, the President of the United States issued a National Security Presidential Memorandum announcing the end of the participation of the United States in the JCPOA and directing the reimposition of “sanctions lifted or waived in connection with the JCPOA”. In the Memorandum, the President of the United States indicated that Iranian or Iran-backed forces were engaging in military activities in the surrounding region and that Iran remained a State sponsor of terrorism. He further stated that Iran had publicly declared that it would deny the IAEA access to military sites and that, in 2016, Iran had twice violated the JCPOA’s heavy-water stockpile limits. The Presidential Memorandum determined that it was in the national interest of the United States to reimpose sanctions “as expeditiously as possible”, and “in no case later than 180 days” from the date of the Memorandum.

• 36. Simultaneously, the United States Department of the Treasury’s Office of Foreign Assets Control announced that “sanctions” would be reimposed in two steps. Upon expiry of a period of 90 days, the United States would reimpose a certain number of measures concerning, in particular, financial transactions, trade in metals, the importation of Iranian-origin carpets and foodstuffs, and the export to Iran of commercial [23] passenger aircraft and related parts. Upon expiry of a period of 180 days, the United States would reimpose additional measures.

• [Page 181] 37. On 6 August 2018, the President of the United States issued Executive Order 13846 reimposing “certain sanctions” on Iran, its nationals and companies. Earlier Executive Orders implementing the commitments of the United States under the JCPOA were revoked.

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• 38. The United States has raised five preliminary objections. The first two relate to the jurisdiction of the Court ratione materiae to entertain the case on the basis of Article XXI, paragraph 2, of the Treaty of Amity. The third contests the admissibility of Iran’s Application by reason of an alleged abuse of process and on grounds of judicial propriety. The last two are based on subparagraphs (b) and (d) of Article XX, paragraph 1, of the Treaty of Amity. Although, according to the Respondent, they relate neither to the jurisdiction of the Court nor to the admissibility of the Application, the Respondent requests a decision upon them before any further proceedings on the merits.

The Court will begin by considering issues related to its jurisdiction.

II. Jurisdiction of the Court ratione materiae under Article XXI of the Treaty of Amity

• 39. The United States contests the Court’s jurisdiction to entertain the Application of Iran. It submits that the dispute before the Court falls outside the scope ratione materiae of Article XXI, paragraph 2, of the Treaty of Amity, the basis of jurisdiction invoked by Iran, which provides that:

  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.

• 40. According to the Respondent, the dispute which Iran seeks to bring before the Court falls outside the scope of the above-mentioned compromissory clause for two reasons which, in its view, are alternative in nature.

First, the United States contends that “the true subject matter of this case is a dispute as to the application of the JCPOA, an instrument entirely distinct from the Treaty of Amity, with no relationship thereto”. [24] Therefore, in the Respondent’s view, the subject-matter [Page 182] of the dispute which Iran seeks to have settled by the Court is not “the interpretation or application of the … Treaty” within the meaning of the second paragraph of Article XXI, as cited above.

Secondly, the United States argues that the vast majority of the measures challenged by Iran fall outside the scope ratione materiae of the Treaty of Amity, because they principally concern trade and transactions between Iran and third countries, or their companies and nationals, and not between Iran and the United States, or their companies and nationals.

• 41. The Court will begin by examining the first of these two objections, which, if well founded, would cause all of Iran’s claims to be excluded from the Court’s jurisdiction; then, if necessary, it will consider the second objection, which concerns only the majority, and not the entirety, of the claims at issue.

III. Admissibility of Iran’s Application

• 85. The United States submits, in the alternative, a preliminary objection to the admissibility of Iran’s Application. In its view, all claims brought by Iran are inadmissible because they would amount to an abuse of process and would raise questions of judicial propriety.

• 86. The Respondent observes that there is no comprehensive definition in the Court’s jurisprudence of what type of conduct constitutes an abuse of process; what is considered an abuse will vary depending on the circumstances of the case. The United States contends that, while the notion of abuse of process may be tied to the principle of good faith, an analysis of whether a State has acted or is acting in good or bad faith is not necessarily required. The Respondent recalls that the Court may decline to hear a case where there exists clear evidence that the conduct of the applicant State amounts to an abuse of process.

• 87. The United States maintains that in the present case there are exceptional circumstances that warrant the dismissal by the Court of the entirety of the case on account of an abuse of process. The Respondent contends that through this case Iran is seeking to obtain “an illegitimate advantage” in respect of its nuclear activities and aims to bring “political and psychological pressure on the United States”. As with regard to its first objection to the Court’s jurisdiction, the United States argues that the dispute exclusively concerns the JCPOA. It [Page 194] asserts that, by bringing this case to the Court, Iran is seeking relief from the sanctions that had been lifted under the JCPOA and that had been reinstated subsequently. The United States points out that political mechanisms were set forth under the JCPOA to address the non-performance by a participant of its [35] commitments, but that the participants did not consent to the jurisdiction of the Court to resolve disputes under that instrument. The Respondent contends that, were the case to proceed to the merits and the Court to grant the relief Iran has requested, the Applicant would obtain the lifting of a specific set of nuclear-related sanctions, which “formed the heart of the bargain in the JCPOA”. Iran could be granted relief from United States’ nuclear-related sanctions without being bound to uphold its own commitments under the JCPOA. In light of these circumstances, which in the view of the Respondent are exceptional, the Application should be held inadmissible.

• 88. Moreover, the United States contends that the Court has the inherent power to decline to exercise its jurisdiction in order to protect the integrity of its judicial function. In the Respondent’s view, it would be “reasonable, necessary and appropriate” for that purpose for the Court to declare the present case inadmissible. By hearing a case that raises questions deeply entangled with the JCPOA, the Court could compromise its judicial integrity. The United States contends that, if the Court were to grant Iran relief from nuclear-related sanctions, it would be placed “at odds with its inherently judicial function”.

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• 89. Iran points out that the Court has had to consider arguments based on abuse of process in the past, but has stated that an abuse could occur only under exceptional circumstances which have never been found to exist. Iran argues that the threshold for an abuse of process is very high and may be reached only if supported by clear evidence.

• 90. In the present case, Iran contends that there are no exceptional circumstances that would justify the Court pronouncing an abuse of process. In Iran’s view, it is normal that a dispute brought under a treaty has political implications. Responding to the United States’ contention that Iran would obtain an “illegitimate advantage” if the Court were to pronounce in its favour, and that the case is really about the JCPOA and not the Treaty of Amity, Iran recalls that the Court has already considered similar contentions in other cases and concluded that the relevant circumstances did not constitute an abuse of process. The Applicant argues that asserting its rights under a treaty in force between the Parties cannot be illegitimate. Moreover, it maintains that [Page 195] access to judicial recourse cannot be barred simply because of the “risk of influencing the execution of another international instrument”.

• 91. Iran further argues that, by exercising its jurisdiction in the present case, the Court would not compromise the integrity of its judicial function. It points out that the United States has not defined the conditions under which the Court should declare a case inadmissible for considerations [36] of judicial propriety. Iran argues that for the Court to decide not to exercise its jurisdiction, there must exist circumstances “of such a nature that they are capable of preventing or hindering the capacity of the Court to address the specific legal and factual subject-matter” of the case. According to Iran, whether the dispute is entangled with the JCPOA, and whether there exists a risk of granting an “illegitimate advantage” to Iran, are not valid reasons for questioning the integrity of the judicial process. Iran argues that none of the claims it presents actually requires the Court to make any legal finding on the JCPOA; the fact that the JCPOA constitutes part of the factual background has no impact on the Court’s exercise of its judicial function.

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• 92. The objection to admissibility raised by the United States is based on the contention that “Iran’s claims amount to an abuse of process and would work an injustice that would raise serious questions of judicial propriety”. This is because “Iran has invoked the Treaty [of Amity] in a case involving a dispute that solely concerns the application of the JCPOA”. The Court notes that the United States did not address its objection to the admissibility of Iran’s Application during the oral hearings, but expressly maintained that objection.

• 93. As the Court observed in Immunities and Criminal Proceedings (Equatorial Guinea v. France), “[i]t is only in exceptional circumstances that the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process” (Preliminary Objections, Judgment, ICJ Reports 2018 (I), p. 336, para. 150). The Court has specified that there has to be “clear evidence” that the Applicant’s conduct amounts to an abuse of process (for analogous statements, see Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, ICJ Reports 2019 (I), pp. 42-3, para. 113; Jadhav (India v. Pakistan), Judgment, ICJ Reports 2019 (II), p. 433, para. 49).

• 94. In the present case, the Court has already ascertained that the dispute submitted by the Applicant concerns alleged breaches of obligations under the Treaty of Amity and not the application of the [Page 196] JCPOA (see paragraph 60 above). The Court has also found that the compromissory clause included in the Treaty of Amity provides a valid basis for its jurisdiction with regard to the Applicant’s claims (see paragraph 84 above). If the Court eventually found on the merits that certain obligations under the Treaty of Amity have indeed been breached, this would not imply giving Iran any “illegitimate advantage” with regard to its nuclear programme, as contended by the United States. Such a finding would rest on an examination by the Court of the treaty provisions that are encompassed within its jurisdiction.

• [37] 95. In the view of the Court, there are no exceptional circumstances that would justify considering Iran’s Application inadmissible on the ground of abuse of process. In particular, the fact that Iran only challenged the consistency with the Treaty of Amity of the measures that had been lifted in conjunction with the JCPOA and then reinstated in May 2018, without discussing other measures affecting Iran and its nationals or companies, may reflect a policy decision. However, as was noted in Border and Transborder Armed Actions (Nicaragua v. Honduras), the Court’s judgment “cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement” (Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p. 91, para. 52). In any event, the fact that most of Iran’s claims concern measures that had been lifted in conjunction with the JCPOA and were later reinstated does not indicate that the submission of these claims constitutes an abuse of process.

• 96. In light of the foregoing, the Court finds that the objection to the admissibility of the Application raised by the United States must be rejected.

IV. Objections on the basis of Article XX, paragraph 1(b) and (d), of the Treaty of Amity

• 97. The United States maintains that Article 79 (now Article 79bis) of the Rules of Court sets out three types of preliminary objections, namely objections to the jurisdiction of the Court, objections to the admissibility of the Application, and any “other objection the decision upon which is requested before any further proceedings on the merits”. The Respondent contends that the Court has recognized in the past that an objection may fall into this last category and may have an exclusively preliminary character even if it touches on certain aspects of the merits.

• [Page 197] 98. The United States submits that in the present case its objections based on Article XX, paragraph 1(b) and (d)—which provide that the Treaty of Amity does not preclude the application of measures “relating to fissionable materials” or that are necessary to protect a State’s “essential security interests”—fall into this third category of objections under Article 79 of the Rules of Court and are of an exclusively preliminary character. The Respondent argues that a determination on these objections can be made on the basis of the facts already before the Court, without deciding on the merits of the case and without prejudging Iran’s claims. According to the United States, even though in its jurisprudence the Court has decided that objections based on Article XX, paragraph 1, of the Treaty of Amity were defences on the merits to be considered at a subsequent phase, in the present case the Court should examine them as a preliminary matter, in particular because they are “severable from the merits of Iran’s claims”. In the “interests of fairness, procedural economy, [38] and the sound administration of justice”, the United States maintains that the Court should render an early decision on these questions.

• 99. The United States argues that both objections cover the entirety of Iran’s claims. It maintains, therefore, that a decision on the objections should be made at the preliminary stage of the proceedings.

• 100. In the United States’ view, all measures at issue in this case can be categorized as “nuclear-related”; therefore, they are all covered by Article XX, paragraph 1(b), of the Treaty of Amity. The United States contends that, in light of the text and context of this provision, the phrase “relating to fissionable materials” gives a party a considerable degree of discretion for taking “a full range of measures developed and adopted to control and prevent proliferation of sensitive nuclear materials”, and not only measures regulating direct trade in fissionable materials.

• 101. The United States notes that the present case is concerned solely with the measures reinstated on 8 May 2018, which were those that had been lifted with the adoption of the JCPOA. The Respondent indicates that all of those measures were categorized by JCPOA participants, including Iran, as “national sanctions related to Iran’s nuclear programme”. In the Respondent’s opinion, for Article XX, paragraph 1(b), to apply, it is irrelevant that the measures were reimposed for both nuclear and non-nuclear related security reasons.

• 102. Additionally, the United States contends that the measures at issue fall within Article XX, paragraph 1(d), of the Treaty of Amity. The Respondent argues that the notion of essential security interests referred to in this provision is broad; to reach the required threshold, [Page 198] measures do not need to be taken in relation to an armed attack, or with regard to matters considered by the Security Council as a threat to international peace and security. The United States contends that “wide discretion” and “substantial deference” must be granted to the State invoking subparagraph (d) in determining whether national security is at stake and what measures are necessary.

• 103. In the present case, the United States indicates that in light of “Iran’s ongoing record of violent and destabilizing acts”, measures were necessary to protect the Respondent’s essential security interests. The decision to reimpose sanctions was taken at the highest level of government, on the basis of an evaluation of Iran’s nuclear ambitions, as well as other Iranian policies that were of concern for the United States, such as those related to the financing of terrorism.

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• 104. Iran argues that the Respondent’s objections that are based on Article XX, paragraph 1, do not fall within the objections mentioned in Article 79 of the Rules of Court. Iran acknowledges that some preliminary [39] objections may not be easily classified as either pertaining to the jurisdiction of the Court or to the admissibility of the Application, but this does not mean that there exists a “third category” of preliminary objections which may include objections pertaining to the merits. Iran argues that, in order to be dealt with at this stage, “an objection must be jurisdictional in nature without touching upon the substance of the merits of the case”. It maintains that the position of the United States, which argues that its objections do not affect the Court’s jurisdiction but are nonetheless “preliminary in nature”, is contradictory; in Iran’s view, a preliminary objection can only be aimed at preventing the Court from exercising its jurisdiction. Iran argues that whether subparagraphs (b) and (d) of Article XX, paragraph 1, of the Treaty of Amity cover the entirety of its claims is irrelevant in determining the nature of the objections: these objections remain defences on the merits, whether they cover all of Iran’s submissions or not.

• 105. Iran contends that there is no reason for the Court to depart from its findings in the case concerning Certain Iranian Assets, in which it concluded that “subparagraphs (c) and (d) of Article XX, paragraph 1, do not restrict its jurisdiction but merely afford the Parties a defence on the merits”. Moreover, the Applicant submits that an extensive factual analysis would be necessary to decide on the objections based on subparagraphs (b) and (d) of Article XX, paragraph 1, and that such an analysis can only be conducted at the merits stage; it is “unsuitable and improper” at the present stage. Indeed, the facts and arguments in [Page 199] support of these objections are substantially the same as the ones forming the basis of the case on the merits. The Applicant submits that if the Court were to pronounce at this stage on the defences of Article XX, paragraph 1, Iran’s rights would form the very subject-matter of the decision. Moreover, in the Applicant’s view, at this stage of the proceedings the Court does not have in its possession all the necessary factual elements to make a determination on the objections raised on the basis of Article XX, paragraph 1(b) and (d).

• 106. Iran also points out that subparagraph (b) must be interpreted in light of the object and purpose of the Treaty and that therefore it only applies to trade, investment or other economic activities in relation to fissionable materials. Measures related to nuclear activity broadly speaking are not covered by Article XX, paragraph 1(b). In the present case, Iran contends that none of the measures in dispute concerns fissionable materials or their radioactive by-products.

• 107. In relation to subparagraph (d), Iran maintains that the concerns of the United States with regard to its essential security interests did not justify implementing the measures at hand. The Applicant recalls that it is the Court’s role to assess the probative value of the arguments put forward by the Respondent and to determine whether there exist reasonable grounds for the United States to consider that the imposition of the sanctions in dispute was necessary and proportional to protect its security interests. In the present case, Iran contends that the measures reimposed by the United States cannot be considered as necessary in order to protect its essential security [40] interests. According to the Applicant, the invocation of Article XX, paragraph 1(d), by the United States is “unfounded and abusive”.

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• 108. Article XX, paragraph 1, of the Treaty of Amity reads as follows:

  • 1. The present Treaty shall not preclude the application of measures:

    1. ……………………………………………………………

    2. (b) relating to fissionable materials, the radio-active by-products thereof, or the sources thereof;

    3. ……………………………………………………………

    4. (d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

• 109. The Court recalls that in the Oil Platforms case (Islamic Republic of Iran v. United States of America), it found that “Article [Page 200] XX, paragraph 1(d), [of the Treaty of Amity] does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits” (Preliminary Objection, Judgment, ICJ Reports 1996 (II), p. 811, para. 20). A similar view was expressed in the case concerning Certain Iranian Assets (Islamic Republic of Iran v. United States of America) (Preliminary Objections, Judgment, ICJ Reports 2019 (I), p. 25, para. 45), where the Court noted that the interpretation given to Article XX, paragraph 1, with regard to subparagraph (d) also applies to subparagraph (c), which concerns measures “regulating the production of or traffic in arms, ammunition and implements of war”. The Court observed that in this respect “there are no relevant grounds on which to distinguish [subparagraph (c)] from Article XX, paragraph 1, subparagraph (d)” (ibid., p. 25, para. 46). The Court finds that there are equally no relevant grounds for a distinction with regard to subparagraph (b), which may only afford a possible defence on the merits.

• 110. The Parties do not dispute that arguments based on Article XX of the Treaty of Amity do not affect either the Court’s jurisdiction or the admissibility of the Application. However, the Respondent argues that objections formulated on the basis of Article XX, paragraph 1(b) and (d), may be presented as preliminary according to Article 79 of the Rules of Court as “other objection[s] the decision upon which is requested before any further proceedings on the merits”. For the following reasons, the two objections raised by the United States on the basis of Article XX, paragraph 1(b) and (d), cannot be considered as preliminary. A decision concerning these matters requires an analysis of issues of law and fact that should be left to the stage of the examination of the merits.

• [41] 111. The Applicant contends that subparagraph (b), which refers to measures “relating to fissionable materials, the radio-active by-products thereof, or the sources thereof”, should be interpreted as addressing only measures such as those specifically concerning the exportation or importation of fissionable materials. It was however argued by the Respondent that subparagraph (b) applies to all measures of whatever content addressing Iran’s nuclear programme, because they may all be said to relate to the use of fissionable materials. The question of the meaning to be given to subparagraph (b) and that of its implications for the present case do not have a preliminary character and will have to be examined as part of the merits.

• 112. The same applies to measures taken by the United States allegedly because they are deemed “necessary to protect its essential security interests” and are therefore argued to be comprised in the [Page 201] category of measures that are outlined in subparagraph (d). The analysis of this objection would raise the question of the existence of such essential security interests and may require an assessment of the reasonableness and necessity of the measures in so far as they affect the obligations under the Treaty of Amity (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 117, para. 224). Such an assessment can be conducted only at the stage of the examination of the merits.

• 113. For the foregoing reasons, the arguments raised by the Respondent with regard to Article XX, paragraph 1(b) and (d), of the Treaty of Amity cannot provide a basis for preliminary objections, but may be presented at the merits stage. Therefore, the preliminary objections raised by the United States based on these provisions must be rejected.

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• 114. For these reasons,

  The Court,

  • (1) Unanimously,

    1. Rejects the preliminary objection to its jurisdiction raised by the United States of America according to which the subject-matter of the dispute does not relate to the interpretation or application of the Treaty of Amity, Economic Relations, and Consular Rights of 1955;

  • (2) Unanimously,

    1. Rejects the preliminary objection to its jurisdiction raised by the United States of America relating to the measures concerning trade or transactions between the Islamic Republic of Iran (or Iranian nationals and companies) and third countries (or their nationals and companies);

  • [42] (3) By fifteen votes to one,

    1. Rejects the preliminary objection to the admissibility of the Application raised by the United States of America;

    2. in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;

    3. against: Judge ad hoc Brower;

  • [Page 202] (4) By fifteen votes to one,

    1. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1(b), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955;

    2. in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;

    3. against: Judge ad hoc Brower;

  • (5) Unanimously,

    1. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1(d), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955;

  • (6) By fifteen votes to one,

    1. Finds, consequently, that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, to entertain the Application filed by the Islamic Republic of Iran on 16 July 2018, and that the said Application is admissible.

    2. in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;

    3. against: Judge ad hoc Brower.

    4. [43] Judge Tomka appends a declaration to the Judgment of the Court; Judge ad hoc Brower appends a separate, partly concurring and partly dissenting, opinion to the Judgment of the Court.

[44] DECLARATION OF JUDGE TOMKA

[Original English Text]

• 1. The way the Court has treated the second preliminary objection raised by the United States calls for some observations.

• 2. According to this objection, Iran’s claims brought under the provisions of the Treaty of Amity that are predicated on “third country measures” fall outside the Court’s jurisdiction which, according to the Applicant, is based on Article XXI, paragraph 2, of the bilateral Treaty of Amity concluded by the Parties in 1955.

The United States specified that its objection on “third country measures” concerns three categories of measures, namely those relating to

• [Page 203] (i) the reimposition of certain sanctions provisions under United States statutes that had been waived pursuant to the Joint Comprehensive Plan of Action (these provisions concern sanctions against non-US persons that engage in trade with Iran or Iranian companies and nationals);

• (ii) the reinstatement, through issuance of Executive Order 13846, of certain sanctions authorities that were previously terminated (they concern sanctions against non-US persons that engage in trade with Iran or Iranian companies and nationals); and

• (iii) the relisting of certain persons on the Department of the Treasury’s Specially Designated Nationals and Blocked Persons List (or SDN List, which identifies natural or legal persons from specially designated countries or subject to a block on assets).

• 3. The Respondent argues that the Treaty of Amity “was not intended to, and does not, impose obligations on the United States concerning trade or transactions between Iran and a third country or between their nationals and companies”.Footnote ¹ In the Respondent’s view, therefore, Iran’s claims that the United States breached its obligations under the Treaty of Amity by adopting measures concerning trade or transactions between Iran and a third country (or their nationals and [45] companies), must be dismissed at a preliminary stage as outside the Court’s jurisdiction.Footnote ²

• 4. Iran, in its Application, claims that these measures constitute breaches of the United States’ obligations under Article IV, paragraph 1, Article VII, paragraph 1, Article VIII, paragraphs 1 and 2, Article IX, paragraph 2, and Article X, paragraph 1, of the Treaty of Amity. In its Memorial, Iran further expands this list of allegedly breached obligations by adding those under Article IV, paragraph 2, and Article IX, paragraph 3, of the Treaty of Amity.

• 5. Although the Parties devoted much attention, both in their written pleadingsFootnote ³ and during the hearings,Footnote ⁴ to the analysis of these provisions, the Court refrains from analysing and interpreting them and, after a short discussion, in some seven paragraphs, concludes that “the second preliminary objection of the United States relates to the [Page 204] scope of certain obligations relied on by the Applicant … and raises legal and factual questions which are properly a matter for the merits” (Judgment, para. 82). The Court states that “such matters would be decided … at [the merits] stage, on the basis of the arguments advanced by the Parties” (ibid.). To determine “the scope of certain obligations relied on by the Applicant” is nothing else than to interpret the provisions of the Treaty invoked by Iran as a source of such alleged obligations. The Court has been provided with sufficient information and arguments by both Parties in order to resolve this interpretative issue already at this stage of the proceedings.

• 6. However, the approach taken by the Court today radically departs from the one it adopted in 1996 when it had to determine its jurisdiction ratione materiae under the same Treaty between the same Parties.Footnote ⁵ In that case, Iran alleged that the acts complained of breached the United States’ obligations under Article I, Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty of Amity and the Court, therefore, had jurisdiction ratione materiae to entertain the case.Footnote ⁶ The United States, for its part, argued that Iran’s claims bore no relation to the Treaty of Amity.Footnote ⁷

• [46] 7. In its 1996 Judgment, the Court devoted no less than 27 paragraphs to a detailed analysis of Article I, Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty, inquiring whether the acts complained of were capable of falling within the scope of the provisions invoked by the Applicant. It concluded that “the destruction [of the platforms] was capable of having … an adverse effect upon the freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of 1955”.Footnote ⁸ Already at the jurisdictional phase of the case, the Court arrived at the conclusion that Article I and Article IV, paragraph 1, of the Treaty could not form a basis for the Court’s jurisdiction.Footnote ⁹

• 8. The Court recently followed the same approach to the analysis of various provisions of the Treaty of Amity, invoked by Iran in support of its claims, in the 2019 Judgment on preliminary objections in the Certain Iranian Assets case.Footnote ¹⁰ When it turned to the consideration of the second preliminary objection raised by the United States, the Court [Page 205] analysed Article IV, paragraph 2, Article XI, paragraph 4, Article III, paragraph 2, Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty of Amity.Footnote ¹¹

• 9. In the present case, by contrast, the Court avoids analysing the articles relied on by Iran when it alleges that the United States’ measures, which target third countries (and their nationals or companies) because they maintain trade, commercial or financial relations with Iran (and its nationals or companies), are in breach of the United States’ obligations under the Treaty of Amity.

• 10. The legal question which the Court should have determined at the present stage of the proceedings is whether the Treaty of Amity provides Iran (and its nationals or companies) with a right not to have its trade, commercial or financial relations with third States (and their nationals or companies) interfered with by the United States’ measures, or, in other words, whether the United States have obligations under the provisions invoked by Iran not to interfere with these trade, commercial or financial relations. In order to answer this question, the Court should have analysed the text of the provisions of the Treaty, relied on by Iran, in light of the Treaty’s object and purpose. Without going into the detail, one may just recall the preamble of the Treaty, which sets out the object and purpose of the Treaty. The preamble specifies, in particular, that the United States and Iran concluded the Treaty with the desire to “encourag[e] mutually beneficial trade and investments and closer economic [47] intercourse generally between their peoples”.Footnote ¹² What was required from the Court was to interpret the text of the various articles of the Treaty of Amity invoked by Iran in order to determine whether Iran’s claims are capable of falling within these provisions. The Court received detailed submissions by both Parties on the interpretation of these provisions.

• 11. Instead of answering the above question, which captures the substance of the United States’ second preliminary objection, the Court rejects it (Judgment, para. 83). But, at the same time, the Court leaves open the possibility for the Parties to argue “legal and factual questions” raised by the second preliminary objection (ibid., para. 82). It is almost as though the Court considers that the objection does not possess an exclusively preliminary character. However, that is not the Court’s conclusion. It simply rejects the objection.

• 12. If, at the merits stage of the proceedings, the Court comes to the conclusion that the provisions relied on by Iran do not provide it (and [Page 206] its nationals or companies) with a right not to have its trade, commercial or financial relations with third States (and their nationals or companies) interfered with, the logical conclusion should be that Iran’s claims do not fall within those provisions and therefore the Court lacks jurisdiction. However, such a conclusion is foreclosed by today’s Judgment rejecting the second preliminary objection. In such hypothesis, the Court would be left with only one option—to conclude that there was no breach of the provisions invoked since they do not provide for the right claimed by Iran.

• 13. I cannot share the approach adopted by the Court in this case, which is inconsistent with the approach it took in 1996 and 2019 in cases concerning the same Treaty. As my learned colleagues have stated in the past: “Consistency is the essence of judicial reasoning. This is especially true … with regard to closely related cases.”Footnote ¹³

• 14. As the issues of applicability of particular provisions of the Treaty to the claims advanced by Iran will be reargued, upon the Court’s invitation, during the merits stage, I do not consider it appropriate for me to disclose my position at this stage with respect to each of the provisions relied on by Iran.

[48] SEPARATE, PARTLY CONCURRING AND PARTLY DISSENTING, OPINION OF JUDGE AD HOC BROWER

• 1. While I have joined the unanimous Judgment of the Court in so far as it rejects the United States’ two preliminary objections to the jurisdiction of the Court, as well as its preliminary objection based on Article XX, paragraph 1(d), of the Treaty of Amity, Economic Relations, and Consular Rights (hereinafter the “Treaty of Amity”), I diverge from the Judgment in so far as it (1) finds the Application of the Islamic Republic of Iran to be admissible and (2) declines to accept the United States’ preliminary objection based on Article XX, paragraph 1(b).Footnote ¹