Other Pacific Means of Resolving Iran’s ICJ Certain Iranian Assets Application

Abstract

On June 14, 2016, Iran submitted an application to the International Court of Justice against the United States of America for “a broad series of measures against Iran and Iranian companies. . . . which are in violation of the USA’s obligations under the Treaty of Amity,” referring to the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States. This case—known as the Certain Iranian Assets case—represents the fourth ICJ case between Iran and the United States. Like the third case, Iran submitted this application in accordance with Article XXI(2) of the Treaty, which states: 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. In its 2016 ICJ application, Iran asserted that “[t]he dispute has not been satisfactorily adjusted by diplomacy, and there has been no agreement to settle the dispute by some pacific means other than the Treaty of Amity,” and so the International Court of Justice has jurisdiction under the Treaty of Amity’s compromissory clause. However, a review of the bilateral and multilateral agreements to which both Iran and the United State are a party reveals several agreements that frustrate the International Court of Justice’s exercise of jurisdiction in this case. The two most prominent agreements are the 1981 Algiers Accords, which established the Iran-U.S. Claims Tribunal, and the 2015 Joint Comprehensive Plan of Action (otherwise known as the Iran Nuclear Deal or the JCPOA), which led Iran to curtail its enrichment efforts and the United States and Europe to lift many of their sanctions on Iran. This article posits that Iran and the United States have agreed to have the Iran-U.S. Claims Tribunal and the JCPOA Dispute Settlement Mechanism handle the claims contained in Iran’s 2016 ICJ application, thereby undermining the International Court of Justice’s jurisdiction with regard to handling Iran’s application. Both the Tribunal and the JCPOA Dispute Settlement Mechanism should be left to interpret and apply the Algiers Accords’ General Declaration and the JCPOA, respectively, to see if there has been a violation of these agreements. At a minimum, Iran must give these other peaceful methods a chance to resolve the claims Iran has presented in its ICJ application before turning to the International Court of Justice. If Iran fails to do so, the International Court of Justice must decline jurisdiction over Iran’s ICJ application.