Thoughts on the ICJ’s Decision in Iran v United States and the Trump Administration’s Treaty Withdrawals

I want to supplement Elena Chachko’s useful analysis of Wednesday’s International Court of Justice decision in the case of Iran v. United States (Nuclear Sanctions Case), in which the Court unanimously approved “provisional measures” directing the United States to remove impediments on the export to Iran of medicine and medical devices, foodstuffs and agricultural commodities, and spare parts and equipment necessary for the safety of civil aviation. Although the decision was a small (and probably temporary) legal victory for Iran, the ICJ rejected Iran’s far-reaching request that the Court order the United States not to re-impose the economic sanctions lifted by the JCPOA or to impose any new sanctions on Iran. The U.S. has long permitted the export of medicine, agricultural goods, and aviation parts to Iran, so it should not be overly difficult (despite some complexities) for the administration to comply with the Court’s directive, while it continues to litigate the case through the merits phase, where the administration has a good chance of prevailing (wholly or largely). In the meantime, the administration’s decision (announced by Secretary of State Mike Pompeo) to withdraw from the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran is a prudent, although regrettable, response to Iran’s abuse of the treaty. In contrast, the administration’s decision (announced by national security adviser John Bolton) to withdraw from the 1961 Optional Protocol to the Vienna Convention on Diplomatic Relations is a potentially diplomatically costly overreaction to the frivolous case filed against the United States in the ICJ by the “State of Palestine” which attempts to block the move of the U.S. Embassy in Israel to Jerusalem.

The U.S. Should Be Satisfied With the ICJ Decision

Iran’s resort to the ICJ to attempt to enjoin the Trump Administration’s termination of the JCPOA and the re-imposition of economic sanctions is the epitome of “lawfare”—the use of the legal system against an enemy. Iran’s reliance on the 1955 Treaty of Amity as the basis for ICJ jurisdiction is an incredible stretch of the treaty. Despite the patently political nature of Iran’s case, the State Department has taken the case seriously—fielding a strong delegation, led by Legal Adviser Jennifer Newstead and augmented by former U.K. Legal Adviser Daniel Bethlehem, to present a vigorous defense. The administration should be applauded for this. It’s unfortunate that the Court did not simply decline to find jurisdiction under the Treaty of Amity, but under ICJ precedent, the bar for the Court to accept jurisdiction at the provisional measures phase is very low, and the Court accepted Iran’s arguments of urgency and potential irreparable harm. The court’s provisional measures order—which was limited to ordering the U.S. not to block exports of humanitarian goods to Iran – was narrowly tailored and limited to actions that even the Trump administration should be able to swallow. Although there may be some complexities (such as whether to allow exports to Specially Designated Nationals), the administration should not have to do much to comply with the Court’s order. In particular, the administration should be able to clarify to U.S. and foreign financial institutions that it is permissible to process transactions involving humanitarian goods, rather than leave them guessing about enforcement actions. In short, despite the Court’s provisional measures ruling in favor of Iran, the administration should be able to live with the result. Rather than attack the Court, the administration should move forward to the merits phase, where the Court is more likely to accept the strong U.S. arguments and to decline Iran’s request that the Court block further economic sanctions on Iran.

Withdrawing from the Treaty of Amity Is Prudent

The Trump administration was right to withdraw from the Treaty of Amity. Secretary Pompeo went too far when he called the Treaty an “absolute absurdity” and said that “This is a decision frankly that is 39 years overdue” (presumably suggesting that the United States should have withdrawn from the Treaty in 1979, after the Iranian Revolution and the takeover of the U.S. Embassy). To be sure, there has not been much “amity” between the governments of Iran and the United States since then. But U.S. policy has always been to try to separate U.S. friendship and support for the Iranian people from U.S. dislike of Iranian government policies. (John Bolton acknowledged in his press conference that “Our dispute is with the ayatollahs who have taken Iran from a respected position in the international community to being a rogue state. Our dispute has never been with the people of Iran.”) Hence, it made sense for the U.S. to try to remain in the treaty in order to emphasize U.S. respect for the Iranian people and to ensure the rights of Americans in Iran. However, the Iranian government has now relied on the treaty to sue the United States in the ICJ three times, first in 1992 in the Oil Platforms case (which Iran filed after U.S. forces attacked Iranian oil rigs that had been used to mine the Persian Gulf), then in 2016 in the Certain Iranian Assets case (which Iran filed after the U.S. allowed the attachment of Iranian assets to pay terrorism judgments), and again in July 2018 in the Nuclear Sanctions case. The United States probably should have withdrawn from the Treaty in 1992 when the Oil Platforms case was filed, or at least in 1996 after the Court concluded that it had jurisdiction to hear the case over U.S. objections. In any event, given the Iranian government’s continued abuse of the Treaty as an instrument of lawfare, it is legally prudent – although Secretary Pompeo might have acknowledged that it is “regrettable” – that the U.S. withdraw from the Treaty. (Presumably, the Trump Administration will withdraw from the Treaty pursuant to its termination provision in Article XXIII(3), which permits termination after one year’s written notice to the other party. It would be a violation of the Treaty if the Trump Administration were to claim that its withdrawal has immediate effect.)

Withdrawal from the Optional Protocol Is Unnecessary and Costly

In contrast, it was unnecessary and potentially counterproductive for the Trump administration to withdraw from the Optional Protocol to the Vienna Convention on Diplomatic Relations (VCDR). Oddly, the decision was announced by the National Security Advisor rather than by the Secretary of State, who has the most interest in defending the VCDR. John Bolton stated that the action was taken “in connection with” the case filed last week against the U.S. in the ICJ by the “State of Palestine” and was “consistent with” the Bush administration’s withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations (VCCR) in 2005 (when I was Legal Adviser). However, the two situations are very different. The Bush administration decided to withdraw from the Optional Protocol to the VCCR only after it had been sued three times in the ICJ (by Paraguay, Germany, and Mexico) for the failure of state and local law enforcement officials to provide consular notice to foreign nationals arrested in the United States and after the ICJ had ruled against the United States in two of the three cases (LeGrand in 2001 and Avena in 2004—Paraguay discontinued its case in 1998). In 2005, upon the recommendation of Secretary of State Condoleezza Rice and following lengthy interagency discussions, President Bush ordered U.S. states to comply with the ICJ’s ruling in the Avena case (which required the U.S. to review the convictions and death sentences of 51 Mexican nationals who had not been given consular notice at the time of their arrest) but determined that the U.S. would withdraw from the Optional Protocol to the VCCR to prevent further cases against the United States for inadvertant failures by local officials to provide consular notice. In contrast, there has been no pattern and practice of other governments suing (much less prevailing against) the United States in the ICJ for violations of the VCDR. Moreover, the United States will have very strong arguments to defend in the case filed by Palestine and is very likely to win. Hence, withdrawal from the Optional Protocol appears to be an overreaction, motivated more by ideological dislike of the ICJ (which John Bolton called “politicized and ineffective”) than by any real legal necessity. Withdrawing from the VCDR Optional Protocol also means that the United States will give up its own right to sue other states if they violate their VCDR obligations to the United States. (For example, the U.S. successfully sued Iran in the ICJ in 1980 for violations of both the VCDR and VCCR for seizing the U.S. embassy in Tehran and holding American diplomats hostage.) In sum, for reasons that appear to be purely speculative (in contrast to the reasons for the U.S. withdrawal from the VCCR Optional Protocol), the Trump administration is depriving future U.S. presidents of a valuable legal tool to defend U.S. diplomats and embassies.