1
BACKGROUND GUIDE
2
THE INTERNATIONAL COURT OF JUSTICE
President: Stephanie Nassar
Vice President: Tala Karkanawi
Court Administrator: John Sakr
3 Table of Contents o Letter from the Secretary General ………………………………………………………………….5 o Letter from the Chair ……………………………………………………………………………………..6 o Committee Overview ……………………………………………………………………………………..7 I. International Court of Justice …………………………………………………………………………7 A. History of the ICJ: Mandate and Functions…………………………………………7 B. Organization of the ICJ……………………………………………………………………….7 II. BEYMUN 2021 – Fifth Edition………………………………………………………………………….9 III. Special Rules of Procedures ……………………………………………………………………………9 A. Roll call ………………………………………………………………………………………………9 B. Opening Statements ………………………………………………………………………….10 C. Presentation of Evidence …………………………………………………………………..10 D. Judges’ Deliberation …………………………………………………………………………..11 E. Rules on Draft Submissions ………………………………………………………………..11 F. Closing Statements……………………………………………………………………………..12 G. Voting Procedure ……………………………………………………………………………….13 H. Position Paper…………………………………………………………………………………….13 IV. Bibliography …………………………………………………………………………………………………………14
o Topic: Certain Iranian Assets –1957 Treaty of Amity between USA and Iran……15 I. Timeline of Events and History of the Topic…………………………………………………….15 II. Treaty of Amity, Economic Relations, and Consular Rights Between USA and Iran…………………………………………………………………………………….16 III. The Bank Markazi v. Peterson Case…………………………………………………………………19 IV. Complicated Past: US-Iran Nuclear Relations………………………………………………….19 V. Stands ……………………………………………………………………………………………………………20 A. USA……………………………………………………………………………………………………20 1. US Administrations………………………………………………………………………..20 a. Obama’s Administration……………………………………………………………………………..20 b. Trump’s Administration………………………………………………………………………………20 c. Biden’s Administration ………………………………………………………………………………21 2. USA Preliminary Objections…………………………………………………………..22 B. Iran……………………………………………………………………………………………………24 1. Iranian Administrations ………………………………………………………………24 a. Mahmoud Ahmadinejad ………………………………………………………………………………..24 b. Hassan Rouhani …………………………………………………………………………………………….25 2. What is at Stake and Iran’s Stand on US Preliminary Objections….25 VI. Applicable Legislations……………………………………………………………………………………26 VII. Historical Procedure ………………………………………………………………………………………27 VIII. Conclusion………………………………………………………………………………………………….28 IX. Helpful Resources…………………………………………………………………………………………..29 X. Bibliography ………………………………………………………………………………………………….30
4 List of Figures:
Figure 1:The 1955 Treaty Of Amity Was The Foundation For Iran-Usa Relationships, Exhibited Above By U.S. Secretary Of State John Kerry And Iranian Foreign Minister Javad Zarif At The Un Headquarters In 2016. Https://Www.Flickr.Com/Photos/Statephotos/ ...... 2
Figure 2: The Bank Markazi Headquarters Tower, Tehran, Iran. Www.Tehrantimes.Com ...... 2
Figure 3: Three Most Recent Presidents Of The United States Https://Arc-Anglerfish- Washpost-Prod- Washpost.S3.Amazonaws.Com/Public/Bypdv5uveei6vavuzdnrmh7w4u.Jpg ...... 2
Figure 4: Iranian President Hassan Rouhani (L-2) Shakes Hands With Iranian Quds Force Commander Qasem Soleimani (R-2) As Revolutionary Guards' Ground Forces Commander Mohammad Pakpour (R) Looks On During The 21st Nationwide Assembly Of The Islamic Revolution Guardian ...... 2
Figure 5: Us Sanctions' Influence On The Iranian Economy, Https://Ichef.Bbci.Co.Uk/News/640/Cpsprodpb/Bd7a/Production/_110060584_Iran_Ec onomic_Growth_Nov_2019_976_2x-Nc.Png ...... 2
Figure 6: Zarif Asked European Union To Coordinate Synchronized Return Of Washington And Tehran To Nuclear Deal (Afp), Https://Thearabweekly.Com/Iranian-Fm-Asks- Europe-Choreograph-Return-Nuclear-Deal ...... 2
5 Letter from the Secretary General
Dear Sir or Madam,
I am pleased to announce the official return of the Beirut International Model United Nations Conference, making this our 6th official debut, and commencement of our long road to BEYMUN 2021. With more exciting and intellectual surprises on the way, it is our absolute pleasure to invite your institution and students to join us at one of the most exceptional, cultural, and educational experiences in the Middle East.
As we face one of the world’s most challenging times, the entire BEYMUN 2021 team has made it a primary focus to empower and give back to the communities that have lost so much hope and spirit. Ones that have found themselves struggling to regain their drive, passion, and resilience to become the future change makers of our planet. With a pandemic on the loose, international instability, and each and every individual’s lives being lived on a day to day basis, we took it upon ourselves to not only create a successful conference, but an outlet for brilliant minds to regain their spirit and remember how important their voices are.
Thus, our theme for the BEYMUN 2021 conference is “Focusing Inwards, Channeling Outward, Steering Forward.” We truly believe in the importance of reevaluating and revisiting our current circumstances, politically, socially, and economically, and using our accumulated knowledge to change the way our world is, and foster a better future for us all. This is the mentality and environment we hope to harvest within this year’s conference, one filled with hope and motivation for a better tomorrow.
We look forward to welcoming you with open arms on our journey to an empowered and intellectual 3-day experience!
Sincerly, Annabelle Ghanem Secretary General of Beirut International Model United Nations 2021
6 Welcome Letter from the Chair International Court of Justice
Dear Judges, Welcome to the International Court of Justice at Beirut International Model United Nations Fifth Edition! My name is Stephanie Nassar and I’m delighted and honored to serve as your Chair and the President of the International Court of Justice. Currently, I am kicking off my last semester as an Economics Senior minoring in Political Sciences. Over the past two years, I developed a profound interest in International Law and Conflict Resolution, and I – partially – blame Harvey Specter from the series Suits. That’s why, I would like to pursue a graduate degree in this field, as my post-pandemic plan! In my free time, I always enjoy indulging in benevolent work, reading, traveling, and going on long road trips. Within my alma matter, I am involved in numerous clubs that helped me grow as person. Most importantly, I dedicate a lot of my time to Model United Nations, being the current AUBMUN Vice President. Ever since I was 15 years old, I have participated in multiple national and international conferences as a delegate, as a trainer, and as a chair. I love the thrill of a good competition and also love to help people gain the skills I acquired over these 6 years. In times when we’re having little to no human interactions, some MUN strangers can really become your dearest friends. On this note, shoutout to the Vice President Tala and Court Administrator John that are two brilliant people I had the honor to work with! Having a good team is what makes a great conference. We are all going through a global pandemic, so I am already congratulating you for making an effective step in joining us! As my favorite Einstein quote says, “In the middle of every difficulty lies opportunity.” Whatever you are going through and wherever you come from, taking this opportunity will make you grow as person. Since the ICJ has a rather unusual set of rules of procedures, I challenge you to put your regular MUN tactics, personal and political opinions aside, and commit to tackle the Certain Iranian Assets Case as a neutral body, with an attention to what legal stances your colleagues will bring to the table. Scrutinizing this case will give us an idea on its possible verdict and repercussions on the entirety of the world! I hope we can find an effective solution to our case and can all leave the conference proud of the outcome we made. I look forward to meeting all of you and deliberate this topic in all its complexities. As the President of the Court, I, on my honor, pledge to deliver the most interesting experience you’ll ever encounter! I commit to making this virtual conference one you’ll remember! Should you have any questions, please do not hesitate to contact me on [email protected] Sincerely, ICJ President Stephanie Nassar
7 Committee Overview
The International Court of Justice
A. History1 of the ICJ: Mandate and Functions
The International Court of Justice (ICJ) was established in June 1945, after the San Francisco Conference2. It was meant to succeed the Permanent Court of International Justice (PCIJ), after witnessing a decrease in its work, culminating in World War II. There had been pre- existing calls for the re-establishment of an international court under the mandate of the newly formed UN, hence the formation of “the Court.” Today, the International Court of Justice is one of the United Nations’ six main organs. Its sole purpose is to settle disputes between states transmitted from a case and give advisory opinions after certain legal questions arise in international law, being the “only court of a universal character with general jurisdiction.”1
The ICJ is the only main UN organ that is not located in New York. Seated at the Peace Palace in The Hague, Netherlands, it takes a few references into consideration whilst doing its work, from international treaties, through all general principles of law, to judicial decisions, as well as expert statements, in addition to international customs, or any convention that is applicable to the case being studied.
It is of vital importance to differentiate the International Court of Justice from any other institution in the judicial sphere, especially the International Criminal Court (ICC). The latter is not the official UN Court, even if it may serve as a referral for some cases from the Security Council. While the ICJ rules over UN Member State governments, the ICC rules over individuals. Elsewhere, while the ICJ discusses sovereignty and boundary disputes or human right violations among nations, the ICC discusses matters such as genocides, war crimes, or crimes against humanity.
Within the United Nations, the International Court of Justice cannot enforce its final rulings. Nevertheless, the UN Charter includes a clause that requires Member States to accept its decisions. In particular, Article 94 of Chapter XIV allows the Security Council to enforce the above-mentioned rulings, whilst considering the Veto Power of the P5 (Russia, China, France, the United States of America, and the United Kingdom).3
B. Organization of the Court
The International Court of Justice does not follow the same structure as most United Nations committees. It is composed of 15 judges, two of which will be the President and the Vice President, who moderate the case proceedings. All of them are neutral “justices” that come from different countries of the world, one third of which (five) are re-elected every three
1 International Court of Justice - https://www.icj-cij.org/en/history 2 United Nations - https://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco- conference/index.html 3International Court of Justice - http://www.un.org/en/sections/un-charter/ 6 chapter-xiv/index.html.
8 years to ensure the continuity of the Court. No two elected justices can be of the same country of origin.
Regardless of where they come from, the ICJ judges do not represent their countries’ opinions. Instead, they operate within the court with their own personal judgment. International law remains impartial and sets aside all kinds of political dispute or economic interests, with only one common goal: the truth. As justices, they make use of legal reasoning (based on international conventions, past treaties, and laws, in addition to past ICJ cases) in order to formulate judgments, which result in “the final judgment” of the case once all different points of view are discussed.
In opposition to popular belief, judges representing country-states are equal, as the vote of justices who come from the five Veto power nations (France, the United States of America, the United Kingdom, China, and Russia) is of equal weight to the vote of a justice from any other nation, even if the former five are mostly always represented. There is no superiority or inferiority within the organization of the Court. All judgments are taken into consideration and will be brought up to a vote that will potentially close the case.4
Judges study two types of cases.5
First, there are contentious cases that consist of “legal disputes between States”6 that are submitted to the Court by the states themselves. Since member nations have no permanent representatives in the ICJ, an agent is appointed and informed of the case’s details, through joint efforts by the Registrar of the Court and the concerned countries’ ministers of foreign affairs or ambassadors to The Netherlands. In the hearings for such cases, the abovementioned agents begin the argument on behalf of the governments they represent and present all necessary information. It is important to note that there is no specific Bar to the International Court of Justice, as there would be to a specific state. Thus, there are no specific criteria to which an agent must adhere in order to plead before the Court for the sake of a government, provided, nonetheless, that the agent was appointed by that government.
The International Court of Justice also handles Advisory Proceedings. Those are when a United Nations organ or specialized agency seeks legal advice from the Court. However, there are only five organs as well as 16 specialized agencies or affiliated organizations that can benefit from legal counsel by the ICJ: The General Assembly and Security council may seek opinions on “any legal question,”6 while the other entities can only request legal assistance within the scope of their activities. With relatively more flexible proceedings, legal opinions issued by the ICJ upon request of another UN entity are not binding (unlike the Court’s judgments).
For the sake of this conference, we will be tackling a case brought up in of legal disputes between two states and not from another UN body seeking advice from the ICJ.
4 International Court of Justice - https://www.icj-cij.org/en/current-members 5 International Court of Justice - https://www.icj-cij.org/en/how-the-court-works 6 International Court of Justice - https://www.icj-cij.org/en/contentious-jurisdiction
9
BEYMUN 2021 – Fifth Edition BEYMUN ICJ is honored to host delegates from all over the world in these exceptional times. Delegates will be weighing evidence, deliberating and drawing up a final judgment to resolve the dispute of the century. The International Court of Justice will be adopting one topic during the entirety of the conference:
- Certain Iranian Assets’ Case– The United States of America vs The Islamic Republic of Iran
Since this topic may include a number of interdisciplinary fields, the ICJ requires delegates to put political opinions and economic arguments aside, to focus on the legal aspects of the case. Since it is an ongoing case, delegates are expected to pick up from the last developments mentioned and take into account the preliminary objections that were already raised in court. As Roosevelt once said, “No man is above law, and no man is below it.”7 We will be taking it up to justice to decide, under the umbrella of International Humanitarian Law, Treaties and Comparative cases.
Special Rules of Procedure Delegates will abide by a special set of Rules of Procedure to simulate the characteristics of the International Court of Justice. Since this conference will be a simulation, the exact rules of the ICJ will be modified in order to achieve a smooth session, with attainable final judgments. That is why this conference will be a mix between the regular rules of procedures in terms of Points and Motions and will contain modifications to adhere to the Court’s legislation. Please note that the Court does not raise debate on claims and hypotheses, but rather points of law. For example, in any other UN body, delegates may discuss why a state X attacked state Y. However, in the International Court of Justice, delegates will be asking whether the attack breaks international law, and its violation of any binding agreement. Should you have any additional questions regarding the rules mentioned below, do not hesitate to email the President of the Court at [email protected].
A. Roll Call
Delegates will be called based on their assigned judge identity by first and last name, in alphabetical order. Since the conference will lead up to a vote, judges do not have the right to abstain. Hence, judges may only reply with “present” since there is no “present and voting.” By replying “present,” a judge is abiding by the rules of the Court and will stay truthful in their statements and presentation of evidence. All those present in the court should identify as neutral justices. By so, Judges are not representing their countries, but they are representing the Judge identity assigned. Delegates may adapt to the point of views raised by their assigned judge in previous judgments on this case.
7 Theodore Roosevelt - https://www.brainyquote.com/quotes/theodore_roosevelt_118459
10 B. Opening Statements
As part of the Formal Debate, opening statements will be deemed necessary in the beginning of the court session in order to have a round on each judges’ legal opinion on the case, before deliberation. In an official ICJ hearing, you may have noticed that the applicant and the defendant have individual long statements to defend each of their side. However, since the case is ongoing, we will consider that the Islamic Republic of Iran and the United States’ statements are already acknowledged. This will give you, as judges, the floor to speak and present your legal stand on the case. Judges are expected to have researched the case beyond the country they are representing as judges of the UN, beyond all political aspects that may be occurring and their respective countries. There will be no motion for opening statements, the President of the Court will directly open the floor with it. Consequently, the opening statements will happen in an alphabetical order of the judges’ present, since there are no traditional Speakers List in the International Court of Justice to follow. The “speakers time” is to be between 1:30 to 3 minutes to each judge.
C. Presentation of Evidence
Presentation of evidence is crucial for the formation of legal arguments. No conspiracy or rumor shall be taken into consideration. In addition, domestic law is invalid in the International Court of Justice. Evidence must be generated from codified international law, customary law or from previous case detailed analysis. To present a piece of evidence, we will proceed with the presentation of a note to the Chair in the format mentioned below. The Dais will then entertain the presentation of evidence, when deemed suitable. When presenting evidence, the Dais will decide if this piece will be admissible or inadmissible, according to Article 56(2)8 of the ICJ’s rules of court. If it does not appeal to the Dais, the evidence may be considered by the court room with a 2/3 majority vote. Please note that the evidence must remain confidential with the Dais before its approval to present it in front of the court. You can either refer to the private chat option and send a message, with the format mentioned below, to the Court Administrator John Sakr or send it to him on [email protected]. After sending it in, please wait till the President and Vice President entertain your evidence, if accepted.
If you are not familiar with the presentation of evidence, here are a few types we may suggest. You are not limited to the ones mentioned.
Demonstrative Evidence: any direct proof in relation to the applicant’s claim. Documentary Evidence: written form of proof, signed by any of the two parties involved. Hear by Evidence: audio or in quotation form of proof, serves as a testimony. Statistical Evidence: relevant numbers as proof deriving from a reliable source. Circumstantial Evidence: any indirect proof in relation to a series of facts that leads up to a conclusion.
8 International Court of Justice - https://www.icj-cij.org/en/rules
11
Judge: Subject: Presentation of Evidence Type: Demonstrative / Documentary / Testimonial Evidence: Share attachment/ link by email where applicable
D. Judges’ Deliberation
After opening statements and/or presentation of evidence, we expect judges to deliberate the points raised by each other. In this sense, the deliberation will take place through formal and informal debate. Judges are expected to raise specific points of law and always build up on the evidence that is present whether from applicable legislations or additional evidence raised by other judges. In order to open the floor to deliberation, judges must raise a Motion. The President of the Court will then start a voting procedure by a raise of hand starting by the most disruptive motion. If the motion succeeds to have 50%+1 vote, the motion passes and the floor will automatically move into it. If it fails, the President of the Court will move on to the next raised motion.
- Moderated Caucus
The Moderated Caucus is part of the formal deliberation. This particular motion is raised to move into a particular sub-topic along the case we are studying. When this motion passes, judges may raise their hands in order to be part of this formal deliberation. The President of the Court will consequently randomly choose speakers for the acquired total time proposed. Speakers will then present their speech one followed by the other, until the total time collapses. Judges may raise the Motion as Motion to Move into a Moderated Caucus to discuss X, for a Total Time of Y minutes, Speakers Time Z minutes.
- Unmoderated Caucus The Unmoderated Caucus is part of the informal deliberation. By so, judges will be tackling the case just like in a group conversation. Judges can discuss prominent points raised by their colleagues in a break-out room or deliberate openly in front of the whole Court room, when this motion is entertained. Judges are expected to be working on their Draft Decision throughout these informal sessions.
Judges may raise the Motion as Motion to Move into an Unmoderated Caucus to discuss X, for a total time of Y minutes.
E. Rules on Draft Decisions
Draft decisions do not need a pre-document such as a working paper to be approved by the Dais. We will directly be working on a Final Draft Decision throughout the conference. Judges may work in different groups on two different draft decisions. The decisions will then be voted
12 upon in the final Court session. Since we judges are aspiring to close the case in a Final Decision, the final document is arranged in a different format:
1. Facts of the Case: The Facts can work as the source of the problem and all key preliminary aspects of the case in terms of applicant and respondent arguments.
Format: Judges may use the same format as Preambulatory Clauses 2. Issues: The issues can be a list of questions that the majority of judges raised in order to solve the case at hand. This part is not mandatory, however, it can help in the reiteration of the case and shed the light on where the solution lies.
Format: Judges must raise issues in a bullet point list of questions in order to agree upon the issues that they want to raise on the case and deliberate.
3. Decisions: Decisions are the agreements happening between judges that will help you build up your solutions. Anything that is a result of a vote can be counted as a decision. Writing it in this section is judges’ way to officialize some majority statement, while also mentioning why and by how many votes this decision was taken. It can be an evidence, a coalition, or a suggested solution. A majority count is needed to every decision taken by the court. It must pertain reasons and may be backed by specific references related to IHL. It can include any next step the Court decides to go through, or any additional definition and facts that need to be raised.
Format: By 14 to 1 vote, the … passes for the following reasons:
4. Operative Clauses: The operative clauses affirm the court’s stance and present solutions
Format: judges may use the regular MUN format for Operative Clauses
5. Opinions: Whenever a judge has an explanatory or different statement to make outside the decisions mentioned above, the Draft Decision can pertain his concurring or dissenting opinion in the last part of the document.
a- Concurring: Paragraph statement in which one judge describes the majority opinion with supporting evidence. b- Dissenting: Paragraph statement in which one judge describes how he disagrees with the majority opinion with supporting evidence.
F. Closing statements
When the debate is near its end, all judges may present closing statements in order to highlight the order of decisions they made throughout the conference. The closing statements will proceed in alphabetical order of judges’ names. If any judge wishes to amend any of the Final Decision content, he may raise this point in the closing statement and its amendment may be settled by a 2/3 majority vote. Any opponent to the final judgment may raise his
13 concern as well. The President, Vice President and Court Administrator will take all views into consideration and assess the Final Decision meticulously.
G. Voting Procedure
The Quorum specifies the number of members present in Court that are deemed necessary for any vote to pass. To pass a substantive vote, the President will require a two-third majority. In both substantive and procedural matters, each judge has one vote. Every judge will have one vote for or against the applicant’s state. Upon a raise of hands, all matters will be voted upon. When voting procedure begins, no judge is allowed to leave the room. All votes require simple majority. The Final Judgment will require a Roll-Call vote, where judges can only reply by “Yes” or “No.”
H. Position Paper The position paper is a one-page essay (Times New Roman, 12), where each judge may present the legal stance, he or she will further be discussing in the committee sessions. You should note that the judge-neutrality rule still applies in the position paper. This being said, the position paper has the mere purpose to organize your ideas and give the Dais a preview of what your stance on the case will be like. 0. Committee Name, Case Statement, Judge’s Name. 1. Discussion of facts, current proceedings and concerned articles 2. Statement of Legal questions 3. Legal Analysis and Possible loopholes in reference to specific treaties 4. Clear conclusion on your stance.
NB: Refrain from using any national symbol or illustration within the legal stance paper, as you are still representing a judge, and not a country.
14 Bibliography
1945: The San Francisco Conference. (2015, August 26). Retrieved from Un.org website: https://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco- conference/index.html
Contentious Jurisdiction | International Court of Justice. (2019). Retrieved from Icj-cij.org website: https://www.icj-cij.org/en/contentious-jurisdiction
Current Members | International Court of Justice. (2009). Retrieved from Icj-cij.org website: https://www.icj-cij.org/en/current-members
History | International Court of Justice. (2018). Retrieved from Icj-cij.org website: https://www.icj- cij.org/en/history
How the Court Works | International Court of Justice. (2019). Retrieved from Icj-cij.org website: https://www.icj-cij.org/en/how-the-court-works
Rules of Court | International Court of Justice. (2019). Retrieved from Icj-cij.org website: https://www.icj-cij.org/en/rules
Theodore Roosevelt Quotes. (n.d.). Retrieved March 31, 2021, from BrainyQuote website: https://www.brainyquote.com/quotes/theodore_roosevelt_118459
15 Topic: Certain Iranian Assets –1957 Treaty of Amity between USA and Iran.
Introduction to the topic
I. Timeline of events Preceding the Second World War, there were friendly diplomatic relations between the United States of America and the Islamic Republic of Iran. However, Iran’s newfound power (in oil) as well as its growing relationships with the Soviet Union, opposing pole to the United States, has highlighted it as a new potential target in the Middle East.
Democratically elected prime minister Mohammed Mosaddeq had nationalized the previously British owned Anglo-Persian Oil Company, after which a series of events9 took place, leading to the belligerents’ current-day stances, detailed below.
. 1953: After London places an oil embargo on Iran, intelligence agencies of American and British origin assist key position holders in the Iranian military, with almost $1.2 billion, in overthrowing Mosaddeq. His reign was succeeded by that of the Western-friendly Shah Mohammad Reza Pahlavi, even if he was unpopular among the Iranian people, and eventually overthrown in 1979.
. 1955: The Treaty of Amity, Consular Rights, and Economic Relations is signed between the USA and Iran after the abovementioned Coup, setting grounds for friendly relations with mutual benefits (as detailed below).
. 1979: February marks the rise of the Iranian Revolution, which overthrew the Shah’s regime and replaced him by Grand Ayatollah Ruhollah Khomeini, Supreme Leader of the anti- West revolution, that he wished to “export” to neighboring countries. Lebanese militia Hezbollah saw the light of day in 1985, pledging allegiance to Khomeini.10 In November of that year, 52 Americans are taken hostage at the U.S. embassy in Tehran and held for a period of 444 days. Their demand is the extradition of the Shah.
. 1980: April marks the beginning of the U.S. sanctions on Iran, as all Iranian assets in the United States are frozen.
9 Council on Foreign Relations - https://www.cfr.org/timeline/us-relations-iran-1953-2020 10 Brookings - www.brookings.edu/research/america-and-iran-from-containment-to-coexistence/.
16 . 1983: The Beirut Marine Bombings take place, leading to the death of 254 American and French members of the Multinational Force in Lebanon. A group that is allegedly a front for Hezbollah and the Iranian regime claim responsibility11.
. 1984: The State Department designates Iran as a state sponsor of terrorism.
. 2001: The United States wish to compensate the victims’ families, as 241 of them filed a civil lawsuit against the Islamic Republic of Iran through the District Court of Columbia claiming wrongful death, assault and state-sponsored terrorist attack.
. 2002: Two complaints are filed against Iran by Deborah Peterson and Marie Boulos, relatives of the Americans killed in Beirut12.
. 2003: The Islamic Republic of Iran is found guilty of financing Hezbollah to orchestrate the Beirut attack of 1984.
The claimed breach of The Treaty of Amity, Economic Relations and Consular Rights
The 1955 Treaty of Amity, Economic Relations, and Consular Relations is part of a larger collection of general commercial treaties called the Friendship, Commerce, and Navigation Treaties (FCN) of the UN. These treaties aim to present a legal framework to govern investment, economic, and commercial interactions between states.
Figure 1:The 1955 Treaty of Amity was the foundation for Iran-USA The following Articles within the 1955 relationships, exhibited above by U.S. Secretary of State John Kerry Treaty of Amity13 must be considered in and Iranian Foreign Minister Javad Zarif at the UN headquarters in 2016. https://www.flickr.com/photos/statephotos/ the case:
11 CNN Library - https://www.cnn.com/2013/06/13/world/meast/beirut- 38 marine-barracks-bombing-fast- facts/index.html 12 Findlaw - https://caselaw.findlaw.com/us-2nd-circuit/1880392.html. 13 US Department of State - https://www.state.gov/treaty-of-amity-economic-relations-and-consular-rights-between-the- united-states-of-america-and-iran-aug-15-1955/
17
Article III, Section 1: “Companies constituted under the applicable laws and regulations of either High Contracting Party shall have their juridical status recognized within the territories of the other High Contracting Party. It is understood, however, that recognition of juridical status does not of itself confer rights upon companies to engage in the Activities for which they are organized. As used in the present Treaty, “companies” means corporations, partnerships, companies and other associations, whether or not with limited liability and whether or not for pecuniary profit.”12
Article III, Section 2: “Nationals and companies of either high contracting party shall have freedom of access to the courts of justice and administrative agencies within the territories of the other high contracting party, in all degrees of jurisdiction, both in defense and pursuit of their rights, to the end that prompt and impartial justice be done. Such access shall be allowed, in any event, upon terms no less favorable than those applicable to nationals and companies of such other high contracting party or of any third country. It is understood that companies not engaged in activities within the country shall enjoy the right of such access without any requirement of registration or domestication.” 13
Article IV, Section 1: “Each high contracting party 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.”13
Article IV, Section 2: “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.” 12
Article V, Section 1: “Nationals and companies of either High Contracting Party shall be permitted, within the territories of the other High Contracting Party: (a) to lease, for suitable periods of time, real property needed for their residence or for the conduct of activities pursuant to the present Treaty; (b) to purchase or otherwise acquire personal property of all kinds; and (c) to dispose of property of all kinds by sale, testament or otherwise. The treatment accorded in these respects shall in no event be less favorable than that accorded national and companies of any third country.” 12
Article VII, Section 1: “Neither High Contracting Party shall apply restrictions on the making of payments, remittances, and other transfers of funds to or from the territories of the other High Contracting Party, except (a) to the extent necessary to assure the availability of foreign exchange for payments for goods and services essential to the health and welfare of its
18 people, or (b) in the case of a member of the International Monetary Fund, restrictions specifically approved by the Fund.” 12
Article X, Section 1: “Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.” 13
Article XI, Section 4: “No enterprise of either High Contracting Party, including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, industrial, shipping or other business activities within the territories of the other High Contracting Party, claim or enjoy, either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject therein.”13
The USA and Iran have a history14 of cases within the ICJ: from the 1988 Persian Gulf to the 1992 Iranian oil platforms, the 1979 Hostage Situation and most recently the 2018 Case of Violation of the 1955 Treaty of Amity because of accumulations of sanctions and measures imposed by the US on Iranian companies. June 14, 2016 marks the day Iran filed the case to the Registry of Court with the claimed breach. The Court of Justice admitted13 the case under Article 36 (1) and 40(1) of the Statute Court and Article 38 of the Rules of Court on the Treaty of Amity, Consular Rights and Economic Relations between the two states, that was put into force in 1957. It was broken by allowing the private lawsuits of the injuries resulting from international terrorism and the certain Iranian Assets, notably the Bank Markazi assets.
As outlined in the official documents of the case15, Iran contends that the U.S. violated the Treaty of Amity on the basis of the following:
• “Failure to recognize the separate juridical status of such entities including Iranian State-Owned companies, • Unfair and discriminatory treatment of such entities and their property, which impairs the legally acquired rights and interests of such entities including enforcement of their contractual rights, • Failure to accord to such entities and their property the most constant protection and security that is in no case less than that required by international law, • Expropriation of the property of such entities, • Failure to accord to such entity’s freedom of access to the US courts, including the abrogation of the immunities to which Iran and Iranian State-owned companies, including Bank Markazi, and their property, are entitled under customary international law and as required by the Treaty of Amity, both with respect to jurisdictional immunities and immunities from enforcement, • Failure to respect the right of such entities to acquire and dispose of property, • Application of restrictions to such entities on the making of payments and other transfers of funds to or from the USA, and • Interference with the freedom of commerce between the territories of Iran and the USA.”
14 Treaty of Amity - https://www.state.gov/wp-content/uploads/2019/05/Treaty-of-Amity-Economic- Relations-and-Consular-Rights-between-the-United-States-of-America-and-Iran-Aug.-15-1955.pdf 15 US Department of State - https://www.state.gov/irans-application-instituting-proceedings-of-june-14-2016/
19 The Bank Markazi v. Peterson Case Deborah Peterson filed a lawsuit against the Iranian government in the name of her brother, who was killed in the 1983 Beirut U.S. Marine Barrack Bombings, as a wrongful death within common law in 2001. Several years later, in 2007, even though it is unusual for the U.S. Supreme Court to discuss matters of foreign policy, a federal district court awarded the plaintiffs a $2.65 billion judgement16. It stated that the Iranian Central Bank (Bank Markazi) must pay this value in order to compensate the families of the U.S. victims of the attack. The validity behind this decision remains unjustified. The Court, nevertheless, rejected the Tehrani argument that constitutional limits have been exceeded by intervening in such a case. In court, parties deliberated if and how the accused Iranian government would pay the abovementioned amount. Congress passed the Iran Threat Reduction and Syria Human Rights Act of 2012, which indicates, in § 8772, that:
“[An Iranian financial asset] shall be subject to execution or attachment in aid of execution, or to an order directing that the asset be brought to the State in which the court is located and subsequently to execution or attachment in aid of execution, in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources for such an act, without regard to concerns relating to international comity.”17
That was done in order to make the $2 billion frozen Iranian funds accessible for seizure with regards to the Bank Markazi case, specifically citing it by name.
Figure 2: The Bank Markazi headquarters tower, Tehran, Iran. www.tehrantimes.com
Complicated Past: US-Iran Nuclear Relations
Iran and the US faced plenty of hardships along the way with both powers wanting to enrich their nuclear program. With USA’s powerful control on most countries and their forcible ways of implementing their own ideas against Iran, this caused plenty of issues when Iran wanted to pursue its nuclear program.
16 The Atlantic - https://www.theatlantic.com/politics/archive/2016/04/bank-markazi/479190/ 17 US Congress - https://www.congress.gov/112/plaws/publ158/PLAW-112publ158.pdf
20 Iran started to develop its nuclear facilities, including a uranium enrichment plant during the early 2000’s. This caused high tensions coming from the US which led to UN nuclear watchdog in Iran’s territories.18 However, with a decade full of sanctions and limitations, Iran lost most of its power, and was forced to hit a pause on their nuclear program. The Joint Comprehensive Plan of Action (JCPOA) pact was implemented under Obama’s administration, which leads Iran’s nuclear goals to take a stand back with limitations implemented in its place.
Stands A. USA 1. US Administrations a. Obama’s Administration
Under Barack Obama’s administration, relations with Iran were very stable, unlike previous years. Obama implemented the JCPOA act which might have placed limitations on Iran’s nuclear program, but strengthened their power amongst the region.19 However, sanctions were later implemented under the NEA (1976), the IEEPA (1977) and the ISA (1966). Declarations under NEA and IEEPA must be renewed annually to remain in effect. In addition, under Obama’s Administration, an Executive Order numbered under 13608, which goes under the “Prohibiting Certain Transactions with and Suspending Entry into the United States of Foreign Sanctions Evaders with Respect to Iran and Syria” passed in 2016, and strained relations with Iran. In addition, Barack Obama implemented an Executive Order numbered under 13599 which means, (Blocking Property of the Government of Iran and Iranian Financial Institutions), was able to block all Iranian assets that were placed by the Iranian government within any U.S. jurisdiction.
b. Trump’s Administration
Trump abandons the nuclear deal before reinstating economic sanctions against Iran and threatening to do the same to countries and firms that continue buying its oil while Iran's economy falls into a deep recession. Trump withdrew from the JCPOA, the pact that ex-President Barack Obama conducted with Iran.20 Trump believed that implementing harsh economic sanctions and financial limitations on Iran would decrease Tehran’s power in the region, in addition to limiting its military power amongst neighboring countries, such as Lebanon and Syria. The deal that was conducted was able to strengthen the United States’ relations with Iran, however, caused tremendous tensions and disputes in the Gulf region. Trump implemented sanctions on Iran in order to maximize pressure on Khamenei’s government and to weaken their position amongst the world powers.
18 BBC News - https://www.bbc.co.uk/news/world-middle-east-33521655 19 Obama White House Archives - https://obamawhitehouse.archives.gov/issues/foreign-policy/iran-deal 20 Council on Foreign Relations - https://www.cfr.org/backgrounder/what-iran-nuclear-deal
21 This caused issues within European countries; however, this move was praised by the Gulf and Israel. Iran enriched their uranium in defiance of the agreement’s terms. Trump believed by implementing limitations both politically and economically, Iran would back out from its nuclear program, however, this caused problems instead. Those sanctions caused plenty of disputes and tensions, as well as an escalation of the military with Iran under Trump’s administration. The Americans’ main goal is to counter Iran’s accusations and suit with a claim of Iran supporting and sponsoring terrorism and terrorist attacks, which gives them liability for the freezing of the assets. Hence which explains the reasons for the legislations and the laws being applied in regard to the Iranian situation. During his four years in office, Trump has tried to force Tehran back into talks over its nuclear and ballistic missile programs and its activities in the Middle East. Saying the agreement did not go far enough, Trump in 2018 quit an Iran nuclear deal, which Tehran struck with world powers in 2015 to rein in its nuclear program in return for sanctions relief.
c. Biden’s Administration
It is unclear what Joseph Biden is planning for the case and for the American relations with Iran, however he served as a vice president under Obama’s administration and presidency for 8 years. This brings in speculations that he might follow into Obama’s footsteps and play a hard role on the Iranian government in regard to the assets that are worth billions, that are still frozen.
The intensity of sanctions that have been implemented over the past couple of years gives President Biden a push in his presidency and his position with Iran. However, ever since his emergence as U.S Figure 3: Three most recent Presidents of the United S h // l fi h h d president, he only discussed the terms of Iran upholding its existing JCPOA obligations.21
In its last quarterly report, the International Atomic Energy Agency (IAEA) said Iran had stockpiled about 12 times the amount of low-enriched uranium permitted under the JCPOA. It had also started enriching uranium to higher purity than the 3.67%22allowed under the deal. Low-enriched uranium is used for many civilian nuclear-related purposes - but at its highest state of purification (which Iran is
21 Foreign Policy - https://foreignpolicy.com/2021/03/26/europe-us-biden-iran-nuclear-deal-lift-sanctions/ 22 BBC - https://www.bbc.com/news/world-middle-east-54912402
22 nowhere near, nor known to be pursuing) it can be used in a nuclear bomb, hence the concern.
But Iran, which has weathered the Trump storm, has its own demands. Officials say the removal of sanctions won't be enough. Iran expects to be compensated for two-and-a-half years of crippling economic damage. President Joseph Biden came into his presidency under extremely unprecedented times, especially with the strained relationship that was built under Trump. It is still unclear what his plans are and what he is planning to conduct with Iran, especially the trial and the unresolved case of Certain Iranian Assets, however it is believed he might follow under Obama’s footsteps with a harsher control because of Kamala Harris on his side.
2. US Preliminary Objections
The U.S. has filed, in May 2017, preliminary objections23 to the jurisdiction of the Court and the admissibility of the Application.
On February 13th, 2019, the International Court of Justice proclaimed its judgment on the US preliminary objections. First, the Respondent asked to “dismiss as outside the Court’s jurisdiction all claims that U.S. measures that block the property and interests in property of the Government of Iran or Iranian financial institutions (as defined in Executive Order 13599 and regulatory provisions implementing Executive Order 13599) violate any provision of the Treaty.”24 However, the Court claims that this objection falls outside the Article XX of the 1955 Treaty. The Court enjoyed its right to use previous cases, and so went on with the case of Oil Platforms (Iran vs USA) and according to Provisional Measures, Order of 3 October 2018, para. 41 contains no claim that exclude such matter. Hence, according to Article XX.1.d, the Court decided to reject this objection considering this claim only a defense on the merits.
The Second Objection raised was concerning Iran’s sovereign immunity. The United States asks the court to dismiss the case “as outside the Court’s jurisdiction all claims, brought under any provision of the Treaty of Amity, that are predicated on the United States’ purported failure to accord sovereign immunity from jurisdiction and/or enforcement to the Government of Iran, Bank Markazi, or Iranian State-owned entities.”25 According to Article IV, paragraph 2, of the Treaty of Amity, the court agreed to read the full Article IV in order to understand its context. It occurred that the article protects “for the benefit of natural persons and legal entities engaged in activities of a commercial nature.” Therefore, Article IV can be used in the discussion on sovereign immunities.
According to the respondent, the Article XI, paragraph 4 of the treaty does not relate to the “immunity” on commercial industries. However, the applicant claims that the provision is in favor of granting sovereignty to public entities when engaging in non-
23 International Court of Justice - https://legal.un.org/icjsummaries/documents/english/231.pdf 24 International Court of Justice - https://www.icj-cij.org/public/files/case-related/164/164-20190213-JUD-01-00-EN.pdf 25 International Court of Justice - https://www.icj-cij.org/public/files/case-related/175/175-20191223-WRI-01-00-EN.pdf
23 commercial activities. According to the Court, Article XI does not grant this privilege to companies engaging in other than “commercial, industrial, shipping or other business activities.” The treaty has a primary focus on fair economic competition and relations. Thus, the court argues that the provision cannot be upheld to sovereign immunities. In addition, even though the US raised Article III paragraph 2 to justify the alleged breach of immunities and violation of “freedom of access to the courts,” the court denied this claim by distinction of a government instrumentality. Recalling the case concerning Oil Platforms, (Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 803)26, Article X paragraph 1 of the Treaty defines “freedom of commerce,” not limited to buying and selling but also the right to establish businesses, acquisition and enjoyment of property. This Article, according to court, has no relation with the commercial relations between the Applicant and the Respondent. No violation of sovereign immunities has yet to be proven under the international law in the exercise of their activities’ jure imperii. Consequently, the Court finds that Iran’s claims based on the alleged violation of the sovereign immunities guaranteed by customary international law do not relate to the interpretation or application of the Treaty of Amity and, as a result, do not fall within the scope of the clause in Article XXI, paragraph 2. Thus, concerning Iran’s claims concern the alleged violation of rules of international law on sovereign immunities, the Court does not have jurisdiction to consider them. It considers that the second objection to jurisdiction raised by the United States upheld.
The third and last objection raised by the United States alleges the violation of Article III, IV and V of the 1955 Treaty regarding the Bank Markazi case13. The question relies on the definition of “company” and its applicability to Bank Markazi in claiming company right and protection. The original case of Peterson vs Bank Markazi proved the USA raised a question on the 1955 Treaty of Amity, Consular Rights and Economic Relations. The section 8772 of the Iran Threat Reduction and Syrian Human Rights Act is in contradiction with Article VI.1 of the 1955 Treaty of Amity, Consular Rights and Economic Relations which required “accord fair and equitable treatment” to each other’s “nationals and companies'' … In addition. The USA considers the case also violating the Treaty’s Article III claiming “recognize []” the “juridical status” of “companies” of the other state … However, this argument was considered to be a preliminary objection that was refuted by the course because it only contained “national” claims that are not particularly mentioned in the 1955 Treaty of Amity. The Bank Markazi or Central Bank of Iran does enjoy government instrumentality but is not a “company” by the definition provided in Article III par. 1. Article XI par 4 confirms that a public enterprise can be a “company” which deprives immunity of a publicly owned Contracting party. However, the USA cannot deny that Bank Markazi proves its own legal personality by Article X, paragraph C of 1960 Iran Monetary and Banking Act. The treaty aims at guaranteeing protections in regard to activities of commercial nature. Therefore, since Bank Markazi only carry out sovereign activities, the Court decided it cannot be characterized as a “company” and cannot therefore use the protections derived from Article III, IV and V. The Court does not deny the possibility of such an entity to engage in activities of commercial nature as well as sovereign activities. Hence, the court acknowledges the need to examine the activities of Bank
26 International Court of Justice - https://www.icj-cij.org/35.en/case/90
24 Markazi within the US territories at the time of the alleged violations. At the time, the Court did not have all the elements to judge whether Bank Markazi violated Article III, IV and V of the Treaty. The court agreed that the third objection “does not possess… an exclusively preliminary character.”27
B. Iran 1. Iranian Administrations a. Mahmoud Ahmadinejad’s Administration After his election in 2005, Mahmoud Ahmadinejad28 was strongly criticized for his participation of the Iranian Hostage Crisis in 1979-1981. The president believed that the peaceful use of nuclear weapons is a right Iran cannot be denied. The US based TV CNN twisted his words turning them into the usage of nuclear weapons is Iran’s right. CNN quickly apologized for this mistake, but the president at the time decided to block CNN from all Iranian grounds. During Ahmadinejad’s reign, the USA and Iran had the best yet relations and went through years of peaceful negotiations. In 1980, the US and Iran froze all diplomatic relations, up until May 200729. The president at the time sent a formal letter to President Georges Bush to end the nuclear dispute and proceed in new ways. The Bush administration denied meeting with Ahmadinejad at the General Assembly in 2006, Figure 4: Iranian President Hassan Rouhani (L-2) claiming a plan to enrich Iran with uranium is a shakes hands with Iranian Quds Force commander Qasem Soleimani (R-2) as Revolutionary Guards' plan that leads to no good. The Iranian ground forces commander Mohammad Pakpour (R) President then took matter with his own hands looks on during the 21st Nationwide Assembly of the and wrote an open letter to the people of Islamic Revolution Guardian America expressing how the USA is planning untrustworthy and threatening activities in the Middle East. In May 2007, the United States passed the resolution 76–22 on arm of the Iranian military as a terrorist organization. In 2008, the Iranian President called the Subprime crisis, the “collapse of liberalism” and considered it as the end of the American empire. In the 2008 election, Ahmadinejad congratulated Barack Obama by welcoming “basic and fair changes in U.S. policies and conducts, I hope you will prefer real public interests and justice to the never-ending demands of a selfish minority and seize the opportunity to serve people so that you will be remembered with high esteem.” However, Ahmadinejad did not take lightly the nuclear “threat” raised by Obama and the urge to file more sanctions upon the Security Council. 30
27 International Court of Justice - https://www.icj-cij.org/public/files/case-related/164/164-20190213-JUD-01-00-EN.pdf 28 Britannica - https://www.britannica.com/biography/Mahmoud-Ahmadinejad 29 CNN - https://edition.cnn.com/2007/US/09/24/us.iran/ 30 Reuters - https://www.reuters.com/article/us-iran-nuclear-idUSTRE6362IJ20100407
25 b. Hassan Rouhani’s Administration Hassan Rouhani31 was elected in 2013 and announced his mission to reiterate international relations in Iran. He started off his hail with a visit to New York in order to settle clear US-Iranian relations in September 2013. At the end of the month, Rouhani and Obama had a phone call that was claimed as the “highest political exchange” between the two states. His aim is to restore international trust by restoring nuclear transparency. In November, the P5 + Iran put in place the JCPOA – Joint Comprehensive Plan of Action – which is a pact that aims at limiting Iranian sanctions within a joint agreement. In 2015, Rouhani agreed on disabling a key part of Arak nuclear reactor, in exchange of ease of sanctions in the UN, US and the EU. In January 2016, the US and Iran conducted a prisoner swap, where four Americans were released in exchange of seven dual Iranian-US nationals. Since Iran followed up on its promise in the JCPOA, the US lifts nuclear related sanctions progressively. In 2020, a shaking event changed the way US-Iran relations are seen in the eyes of the Islamic Republic. The death of former second most powerful person, Qasem Soleimani was targeted by the US. Rouhani affirms that Iran “will take its revenge” out of this murder. In 2021, after the election of Biden, Hassan Rouhani saw this as an opportunity to the United States for them to “compensate past mistakes.”32 2. What is at stake and Iran’s stand on US preliminary objections The 2015 nuclear deal slipped all chances of Iran reentering the global energy market. The rial currency has depreciated. The Islamic Republic of Iran is in deep need of access to the global market in order to reaffirm itself as a stable economy. The lack of trust international companies has in Iranian investment always relies on the what the US next president might have to say. Iran stays in close contact with the Figure 5: US Sanctions' influence on the Iranian economy, Lebanese Shiite militant group https://ichef.bbci.co.uk/news/640/cpsprodpb/BD7A/production/_11006058 Hizballah and the Yemeni Houthi 4_iran_economic_growth_nov_2019_976_2x-nc.png rebels. The Islamic republic of Iran suffers from US courts’ 26 billion dollars32 of plaintiff, in regards to the loss on the Bank Markazi vs Peterson case. Involvements in alleged terrorist groups33 is what leaded to the 30 billion dollars in punitive damages. This applies to enforcement proceedings in the US that occurred even where such Iranian assets or interests are not found to be held by separate judicial entities. Regarding the case of Certain Iranian Assets, Iran has requested, among other things, that the court should
31 Britannica - https://www.britannica.com/biography/Hassan-Rouhani 32 Atlantic Council - https://www.atlanticcouncil.org/blogs/iransource/a-biden-rouhani-agreement-can- positively-impact-irans-political-future/ 33 Just Security - https://www.justsecurity.org/62604/unpacking-icj-judgment-certain-iranian-assets/
26 adjudge, order and declare its jurisdiction under the Treaty of Amity to handle the dispute and come to a final ruling based on the claims submitted by Iran, and for the court to declare unlawful the U.S.’s violations of its obligations to Iran and prevent acts against Iran and Iranian state-owned companies under international law and the Treaty of Amity. Iran is not protected under the Foreign Sovereign Immunities Act, which allows the country to be charged and held accountable for certain acts of terrorism Iran argues that Bank Markazi is a company which is entitled for protection under the Treaty. According to the US third preliminary objection court response, the point was dismissed temporarily. The Minister of Foreign Affairs expressed his satisfaction on the Feb. 2019 judgment by tweeting: “Today, the ICJ strongly rejected the U.S. preliminary objections and reaffirmed its jurisdiction to hear the case brought by Iran against the U.S. on violations of the 1955 Treaty25.” He considered this rejection as a second legal success relating to the “imposition and escalation of inhumane US sanctions against Iranians since May 8, 2018. He specifically stated “Another legal victory for Iran following 3 [October 2018] Order. Iran has always fully respected [international] law25,” October 3rd, 2018, the court issued an interim order for the US to remove all medical related sanctions on Iran. Figure 6: Zarif asked European Union to coordinate However, the court refused to remove these synchronized return of Washington and Tehran to nuclear sanctions, claiming its priority to fight Iranian deal (AFP), https://thearabweekly.com/iranian-fm-asks- europe-choreograph-return-nuclear-deal economic terrorism. The applicant, Iran, is hoping for the court to have substantive proceedings regarding the failure of the US in implementing the Court’s interim order. The Minister of Foreign Affairs reaffirms that the Islamic Republic of Iran reconfirms its use of international legal mechanisms’ legitime and will always be their primary agenda until the final proceedings34.
Applicable Legislations
The Court stresses on the importance and significance of the applications of legislations into the case being presented. There are plenty of essential legislations that are in deem significance to be discussed and mentioned during court, in addition in your respective position papers.
Some of the legislations that aren't mentioned but also important to note are the Executive Orders that were taken under Barack Obama’s administration.
34 Islamic Republic News Agency - https://en.irna.ir/news/84210784/Iran-elaborates-on-ICJ-s-verdict-on-Treaty- of-Amity
27 The 1955 Treaty of Amity: The following articles must be considered very closely in the case: Article III, IV, V, X, XI 35 The U.S. Foreign Sovereign Immunities Act (FSIA): In 1976, U.S.A signed into law to set limitations of proceedings against a foreign nation, including its political subdivisions, agencies, or other entities, by U.S. Federal or State Courts. This legislation provides U.S. courts with the exclusive ability to exercise jurisdiction against a foreign state. 36 The Terrorism Risk Insurance Act (TRIA): U.S. Congress in 2002, which allows judgments to be executed against blocked assets of an alleged terrorist party. 37
Procedural History
The past court dates that have taken place for the case of Certain Iranian Assets and the rulings that were provided for each date38:
Order of 1 July 2016: The ICJ fixed time-limits for the filing of the written pleadings as 1 February 2017 for the Memorial of the Islamic Republic of Iran and 1 September 2017 for the Counter-Memorial of the United States of America.
Order of 2 May 2017: Filing of preliminary objections to the jurisdiction of the ICJ by the U.S. The ICJ fixed the time-limit of 1 September 2017, within which the Islamic Republic of Iran may present a written statement of its observations and submissions on the preliminary objections raised by the U.S.
Press Release of 22 June 2018: Public hearings from Monday 8 to Friday 12 October 2018 at the Peace Palace in The Hague focusing on the Preliminary Objections raised by the U.S. on May 1st, 2017.
Judgment 2019/1: The basis of enforcement measures against the Bank Markazi by the FSIA by removing immunity is contrary to international law.
35 U.S Department of State https://www.state.gov/treaty-of-amity-economic-relations-and-consular-rights- between-the-united-states-of-america-and-iran-aug-15-1955/ 36 Public Law, 94th Congress - https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg2891.pdf 37 Federal Register - https://www.federalregister.gov/documents/2020/11/10/2020-24522/terrorism-risk- insurance-program-updated-regulations-in-light-of-the-terrorism-risk-insurance 38 International Court of Justice https://www.icj-cij.org/en/case/164
28 Conclusion The ongoing case of Certain Iranian Assets is evolving by the day. It is advised to keep an eye on recent news on the matter and the relations between the two states after Biden’s election. In addition, it is advised to look into your assigned judge’s opinion, if any, after every judgment published by the Court. Following Iran’s complaint to the ICJ, the US declared a withdrawment from the 1955 Treaty of Amity. Therefore, clarifications over the treaties’ technicalities are crucial for judges to unlock the case. Over this issue, the Dais advises you to ask yourselves the following questions, during your research process: 1. As an objective arbitrator, how is the International Court of Justice limited in imposing legislative action over the applicant’s claim against the defendant? While both parties are expected to follow their own strategic interests, how can the case comply with the international law and maintain its goal of peace and cooperation?
2. In relation with the primary source for this case, the 1955 Treaty of Amity, how can it define whether Bank Markazi is a “company” or a “national”? Can the Treaty be applicable to this case, even with the recent repercussions and relationship between the two states? Can Bank Markazi claim immunity because of the Treaty of Amity’s agreement?
3. How can state immunity not serve as a Foreign Policy tool for Iran and the US? How can foreign policy affect the states’ choices in compliance with international law? Can the articles of The Treaty of Amity be considered as substance or procedure? As judges, how would the Second Objection of the USA be regarded in the proceeding of court?
4. How do recent US moves (Biden era) acknowledge all involved parties’ obligations? On what grounds did the US violate its obligations under the 1955 Treaty of Amity? How is retaliation justified use of force in international law?
5. How could violations of the JCPOA affect one or more of the articles in the Treaty of Amity? Is possible pursue of nuclear response may reflect on Iran’s position on this case under international law?
29 Helpful Resources
Assembly of Experts for Constitution. Constitution of the Islamic Republic of Iran. https://www.wipo.int/edocs/lexdocs/laws/en/ir/ir001en.pdf, 1979.
Koplow, David. Scholarship @ GEORGETOWN LAW Scholarship @ GEORGETOWN LAW 2013 Indisputable Violations: What Happens When the United States Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty Unambiguously Breaches a Treaty Part of the International Law Commons, and the Rule of Law Commons., scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2902&context=facpub.
“Library of the Court | International Court of Justice.” Www.icj-Cij.org, www.icj-cij.org/en/library.
“Multimedia | International Court of Justice.” Www.icj-Cij.org, www.icj-cij.org/en/multimedia- cases.
Quigley, John Bernard. “Must Treaty Violations Be Remedied? A Critique of Sanchez-Llamas v. Oregon.” SSRN Electronic Journal, 2007, doi:10.2139/ssrn.1028064.
“The Constitution of the United States: A Transcription.” National Archives, 24 Sept. 2018, www.archives.gov/founding-docs/constitution-transcript.
“The Looming International Law Paradox between the US and Iran.” Www.lowyinstitute.org, www.lowyinstitute.org/the-interpreter/looming-international-law-paradox-between-us- and-iran. Accessed 24 Apr. 2021.
Treaty of Amity, Economic Relations, and Consular Rights, USA and Iran. “UNTC.” Treaties.un.org, 1957, treaties.un.org/pages/showdetails.aspx?objid=0800000280142196.
Vagts, Detlev F. “The United States and Its Treaties: Observance and Breach.” The American Journal of International Law, vol. 95, no. 2, Apr. 2001, p. 313, doi:10.2307/2661398.
“What to Make of the ICJ’s Provisional Measures in Iran v. U.S. (Nuclear Sanctions Case).” Lawfare, 4 Oct. 2018, www.lawfareblog.com/what-make-icjs-provisional-measures-iran-v-us-nuclear- sanctions-case.
30 Bibliography
. (2012). IRAN THREAT REDUCTION AND SYRIA HUMAN RIGHTS ACTF 2012112 PUBL158 kgrant on DSKHRRP4G1PROD with PUBLAWS. Retrieved from https://www.congress.gov/112/plaws/publ158/PLAW-112publ158.pdf . (n.d.). Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice. Retrieved from https://legal.un.org/icjsummaries/documents/english/231.pdf 2379. (2021, February 4). Iran elaborates on ICJ’s verdict on Treaty of Amity. Retrieved from IRNA English website: https://en.irna.ir/news/84210784/Iran-elaborates-on-ICJ-s-verdict-on- Treaty-of-Amity A Biden-Rouhani agreement can positively impact Iran’s political future. (2020, November 12). Retrieved from Atlantic Council website: https://www.atlanticcouncil.org/blogs/iransource/a-biden-rouhani-agreement-can- positively-impact-irans-political-future/ Ahmadinejad speaks; outrage and controversy follow - CNN.com. (n.d.). Retrieved February 22, 2021, from edition.cnn.com website: https://edition.cnn.com/2007/US/09/24/us.iran/ Ahmadinejad speaks; outrage and controversy follow - CNN.com. (n.d.). Retrieved from edition.cnn.com website: https://edition.cnn.com/2007/US/09/24/us.iran/ FindLaw’s United States Second Circuit case and opinions. (n.d.). Retrieved March 31, 2021, from Findlaw website: https://caselaw.findlaw.com/us-2nd-circuit/1880392.html Ford, M. (2016, April 20). What the Supreme Court’s Ruling on Iranian Assets Means. Retrieved from The Atlantic website: https://www.theatlantic.com/politics/archive/2016/04/bank- markazi/479190/ Hafezi, P. (2010, April 7). Iran’s president attacks Obama on nuclear “threat.” Reuters. Retrieved from https://www.reuters.com/article/us-iran-nuclear-idUSTRE6362IJ20100407 Hassan Rouhani | Biography, Education, History, & Facts. (n.d.). Retrieved from Encyclopedia Britannica website: https://www.britannica.com/biography/Hassan-Rouhani Iran Deal. (2016). Retrieved from The White House website: https://obamawhitehouse.archives.gov/issues/foreign-policy/iran-deal Iran nuclear deal: Key details. (2019, June 11). BBC News. Retrieved from https://www.bbc.co.uk/news/world-middle-east-33521655 Iran’s Application Instituting Proceedings of June 14, 2016. (n.d.). Retrieved from United States Department of State website: https://www.state.gov/irans-application-instituting- proceedings-of-june-14-2016/ Latest developments | Oil Platforms (Islamic Republic of Iran v. United States of America) | International Court of Justice. (n.d.). Retrieved from www.icj-cij.org website: https://www.icj-cij.org/en/case/90 Law, P. (1976). Action against Foreign State. Retrieved from Public Law 94-583 94th Congress website: https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg2891.pdf Lynch, Colum. “Europeans Fear Iran Nuclear Window Closing.” Foreign Policy, foreignpolicy.com/2021/03/26/europe-us-biden-iran-nuclear-deal-lift-sanctions/.
31 Mahmoud Ahmadinejad | Biography & Facts. (n.d.). Retrieved from Encyclopedia Britannica website: https://www.britannica.com/biography/Mahmoud-Ahmadinejad Maloney, S. (n.d.). America and Iran: From Containment to Coexistence. Retrieved from Brookings website: https://www.brookings.edu/research/america-and-iran-from-containment-to- coexistence/. Robinson, K. (2021, January 4). What Is the Iran Nuclear Deal? Retrieved from Council on Foreign Relations website: https://www.cfr.org/backgrounder/what-iran-nuclear-deal Terrorism Risk Insurance Program; Updated Regulations in Light of the Terrorism Risk Insurance Program Reauthorization Act of 2019, and for Other Purposes. (2020, November 10). Retrieved from Federal Register website: https://www.federalregister.gov/documents/2020/11/10/2020-24522/terrorism-risk- insurance-program-updated-regulations-in-light-of-the-terrorism-risk-insurance Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran, Aug. 15, 1955. (n.d.-a). Retrieved from United States Department of State website: https://www.state.gov/treaty-of-amity-economic-relations-and-consular-rights-between- the-united-states-of-america-and-iran-aug-15-1955/ U.S. Relations With Iran, 1953–2020. (2020). Retrieved from Council on Foreign Relations website: https://www.cfr.org/timeline/us-relations-iran-1953-2020
“World Court Rules on Iran Challenge to US Suits for Acts of Terrorism: An Explainer.” Just Security, 19 Feb. 2019, www.justsecurity.org/62604/unpacking-icj-judgment-certain-iranian-assets/.