1. First preliminary objection to jurisdiction: the subject-matter of the dispute

42. According to the United States, the dispute that Iran seeks to bring before the Court has arisen out of the United States’ decision of 8 May 2018 to cease participation in the JCPOA and thereby to reimpose the sanctions that it had lifted under that instrument. The United States maintains that, by its Application, Iran in fact seeks the restoration of the sanctions relief provided by the United States when it was a participant in the JCPOA. The dispute thus exclusively pertains to the United States’ decisions relating to the JCPOA; the case is inextricably bound up in the latter and has no real relationship to the Treaty of Amity.

43. The United States contends that the foregoing is evidenced by the text of the diplomatic Note of 11 June 2018, by which Iran claims to have notified the United States of the existence of the dispute now before the Court. The United States observes that, in that Note, Iran complains of the “unlawful decision of the Government of the United States, made on 8 May 2018, ‘to re-impose the United States sanctions lifted or waived in connection with the JCPOA’”, without even mentioning the Treaty of Amity. According to the United States, a second Note from Iran, dated 19 June 2018, also focuses exclusively on the United States’ decision to cease participation in the JCPOA and to reimpose the previously lifted sanctions.

44. The United States notes that Iran brought its claims regarding the alleged wrongfulness, under the Treaty of Amity, of the measures that it is challenging only when these were reinstated as a result of the United States’ withdrawal from the JCPOA, even though the measures in question had been in force prior to the adoption of the JCPOA — in some cases for decades — without Iran invoking the Treaty of Amity to challenge their imposition.

45. Equally telling, in the United States’ view, is the fact that Iran is challenging before the Court only the reimposition of the sanctions that had been lifted under the JCPOA. The Respondent points out that the JCPOA provided for the suspension or removal only of “multilateral and national sanctions related to Iran's nuclear programme”, and that, as a result, the other measures aimed at Iran which had been put in place by the United States before the adoption of the JCPOA continued to apply during the period in which the latter was implemented.

46. All the foregoing demonstrates, in the view of the Respondent, that the true subject-matter of the dispute relates exclusively to the JCPOA. According to the United States, the JCPOA is a multilateral political arrangement which does not create legally binding obligations. Moreover, it does not contain any clause giving the Court jurisdiction to entertain a dispute arising between two or more JCPOA participants.

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47. Iran rejects the arguments raised by the United States in support of the first preliminary objection to jurisdiction. It asserts that the subject-matter of the dispute that it has submitted to the Court is indeed the interpretation and application of the Treaty of Amity, and that the dispute thus falls squarely within the scope of the Treaty's compromissory clause.

48. According to Iran, its Application wholly and exclusively concerns violations of the Treaty of Amity. The measures that it challenges constitute violations of the Treaty of Amity, whether or not they are also associated with, or adopted against the background of, the JCPOA. The question is simply whether, as the Applicant maintains, those measures are inconsistent with the Treaty, without there being any need to determine whether or not they also breach the JCPOA.

49. Iran adds that the fact that the JCPOA makes no reference to the settlement of disputes by the Court is irrelevant, given that the subject-matter of the dispute now before the Court is compliance with the Treaty of Amity, not the JCPOA. Although the JCPOA does in fact contain a specific dispute settlement mechanism, nothing suggests that this mechanism might have the effect of removing from the jurisdiction of the Court any dispute relating to measures which, while falling within the scope of a clause conferring jurisdiction on the Court, might also be relevant to the JCPOA.

50. Finally, in response to the United States’ argument that Iran did not challenge the imposition of the disputed measures before the JCPOA was adopted or during the negotiation leading up to its adoption, the Applicant replies that it did in fact protest against the United States’ measures, which it considers to be contrary to international law. It adds that it is for each State to determine at what point the circumstances warrant pursuing its rights through judicial means rather than continuing only to seek a diplomatic settlement, which is what the Applicant has done in this instance by deciding to bring the present dispute before the Court.

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51. The Court notes that the Parties do not contest that there is a dispute between them, but they disagree as to whether this dispute concerns the interpretation and application of the Treaty of Amity, as Iran claims, or exclusively the JCPOA, as the United States contends. In the latter case, the dispute would fall outside the scope ratione materiae of the compromissory clause of the Treaty of Amity.

52. As the Court has consistently recalled, while it is true that, in accordance with Article 40, paragraph 1, of the Statute, the applicant must indicate to the Court what it considers to be the “subject of the dispute”, it is for the Court to determine, taking account of the parties’ submissions, the subject-matter of the dispute of which it is seised (see Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, pp. 447-449, paras. 29-32). As it stated in the Nuclear Tests cases:

53. The Court's determination of the subject-matter of the dispute is made “on an objective basis” (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26), “while giving particular attention to the formulation of the dispute chosen by the Applicant” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 30). To identify the subject-matter of the dispute, the Court bases itself on the application, as well as on the written and oral pleadings of the parties. In particular, it takes account of the facts that the applicant identifies as the basis for its claim (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), pp. 602-603, para. 26).

54. In the present case, according to the submissions presented in its Application and its Memorial, Iran essentially seeks to have the Court declare that the measures reimposed pursuant to the United States’ decision expressed in the Presidential Memorandum of 8 May 2018 are in breach of various obligations of the United States under the Treaty of Amity, and consequently to have the situation prior to that decision restored. The United States contests that the impugned measures constitute violations of the Treaty of Amity. Hence there exists an opposition of views which amounts to a dispute relating to the Treaty of Amity.

55. It is true that this dispute arose in a particular political context, that of the United States’ decision to withdraw from the JCPOA. However, as the Court has had occasion to observe:

56. The fact that the dispute between the Parties has arisen in connection with and in the context of the decision of the United States to withdraw from the JCPOA does not in itself preclude the dispute from relating to the interpretation or application of the Treaty of Amity (cf. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 811-812, para. 21). Certain acts may fall within the ambit of more than one instrument and a dispute relating to those acts may relate to the “interpretation or application” of more than one treaty or other instrument. To the extent that the measures adopted by the United States following its decision to withdraw from the JCPOA might constitute breaches of certain obligations under the Treaty of Amity, those measures relate to the interpretation or application of that Treaty.

57. Even if it were true, as the Respondent contends, that a judgment of the Court upholding Iran's claims under the Treaty of Amity would result in the restoration of the situation which existed when the United States was still participating in the JCPOA, it nonetheless would not follow that the dispute brought before the Court by Iran concerns the JCPOA and not the Treaty of Amity.

58. The Court notes that the United States has made clear that it does not assert that the existence of a connection between the dispute and its decision to withdraw from the JCPOA suffices in itself to preclude the Court from finding that it has jurisdiction over Iran's claims under the Treaty of Amity, or that jurisdiction under the Treaty is precluded solely because the dispute is part of a broader context that includes the JCPOA.

59. The Respondent's argument is that the very subject-matter of Iran's claims in this case relates exclusively to the JCPOA, and not to the Treaty of Amity. The Court does not see how it could support such an analysis without misrepresenting Iran's claims as formulated by the Applicant. The Court's “duty to isolate the real issue in the case and to identify the object of the claim” (see paragraph 52 above) does not permit it to modify the object of the submissions, especially when they have been clearly and precisely formulated. In particular, the Court cannot infer the subject-matter of a dispute from the political context in which the proceedings have been instituted, rather than basing itself on what the applicant has requested of it.

60. For the reasons set out above, the Court cannot uphold the first preliminary objection to jurisdiction raised by the United States.

2. Second preliminary objection to jurisdiction: “third country measures”

61. The United States contends that, even if the actual subject-matter of the dispute were the application of the Treaty of Amity and not of the JCPOA, the Court would lack jurisdiction to entertain the vast majority of Iran's claims, as those claims relate to measures which principally concern trade or transactions between Iran and third countries, or between their nationals and companies. According to the Respondent, the Treaty of Amity is applicable only to trade between the two States parties, or their nationals and companies, and not to trade between one of them and a third country, or their nationals and companies.

62. According to the United States, the vast majority of the measures implemented or reinstated under the Memorandum of 8 May 2018 concern the trade or transactions of Iran (or its companies and nationals) with third countries (or their companies and nationals). Indeed, the measures aimed directly at “U.S. persons” (within the specific meaning in which this category of person is defined by the JCPOA), seeking to prohibit such persons from carrying out certain operations with Iran or Iranian entities, had not been lifted by the JCPOA; they were therefore not reinstated by the Memorandum of 8 May 2018 and its implementing measures. Consequently, according to the United States, since Iran is only challenging before the Court the lawfulness of the “8 May measures” under the Treaty of Amity, it is thus complaining of measures of which the vast majority do not affect the commercial or financial relations between the United States and Iran, but between Iran and third countries, or between their companies and nationals. According to the Respondent, such measures, which it characterizes as “third country measures”, fall outside the scope of the Treaty of Amity.

63. More specifically, the United States explains that the disputed measures can be divided into four categories, according to their purpose: (i) the reimposition of certain sanctions provisions under United States statutes that had been waived pursuant to the JCPOA; (ii) the reinstatement, through issuance of Executive Order 13846, of certain sanctions authorities that were previously terminated; (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); and (iv) the revocation of certain licensing actions related to carpets, foodstuffs, commercial passenger aircraft and parts, and activities of foreign entities owned or controlled by United States natural or legal persons.

The Respondent contends that the measures in the first three categories are “third country measures” which do not fall within the scope of the Treaty of Amity. It states that its second objection to jurisdiction is not directed at Iran's claims relating to measures in the fourth category.

64. As regards the first three categories of measures, and in particular those involving the reimposition of certain statutory provisions governing sanctions which had been withdrawn under the JCPOA, the United States points out that the latter specified that “[t]he sanctions that the United States will cease to apply . . . pursuant to its commitment under Section 4 are those directed towards non-U.S. persons”. The JCPOA also clarified that “U.S. persons and U.S.-owned or -controlled foreign entities will continue to be generally prohibited from conducting transactions of the type permitted pursuant to this JCPOA, unless authorised to do so by the U.S. Department of the Treasury”. The United States argues that, as a result, leaving aside the limited fourth category referred to in paragraph 63 above, the only sanctions that were lifted during the period of application of the JCPOA were those aimed at third States or their companies and nationals, and that it was only such “third country measures” that were reinstated after 8 May 2018.

65. According to the Respondent, the same applies to the provisions resulting from Executive Order 13846, which reinstated certain earlier Executive Orders that had been terminated or amended in connection with the implementation of the JCPOA. The sanctions reimposed by Executive Order 13846 are those directed at non-United States persons.

66. Lastly, regarding the return of certain persons and assets to the United States Department of the Treasury's SDN List, the Respondent maintains that the relisting of more than 400 individuals or entities principally affected the nationals and companies of third countries by prohibiting those nationals or companies, on pain of sanctions, from supplying goods and services to Iranian persons included in the list.

67. Having so characterized the measures challenged by Iran in these proceedings, the United States argues that such measures do not fall within the terms of any of the provisions of the Treaty of Amity, which contains no clause that might require the United States either to take or to refrain from taking any measures in respect of trade or transactions between Iran and a third country. In particular, according to the United States, such measures do not fall within the terms of any of the provisions of the Treaty of Amity which Iran claims to have been violated, namely Articles IV (paras. 1 and 2), V (para. 1), VII (para. 1), VIII (paras. 1 and 2), IX (paras. 2 and 3) and X (para. 1).

68. The United States maintains that Article IV, paragraph 2, and Article V, paragraph 1, are expressly limited to conduct that occurs within the territory of the United States. Likewise, according to the Respondent, Iran is incorrect in claiming that Article VII, paragraph 1, which prohibits restrictions on the transfer of funds, could apply to the United States’ measures that affect payments to or from third countries, and not merely to or from the territory of Iran.

69. With regard to Article VIII, paragraphs 1 and 2, which set forth certain obligations relating to the exportation and importation of products, the United States considers that these provisions concern only products of Iran destined for import to the territory of the United States or products of the United States destined for export to Iran. For similar reasons, according to the United States, the measures concerning third States fall outside the scope of Article IX, paragraphs 2 and 3, which require each party to accord certain treatment to the companies and nationals of the other party in matters of importation and exportation, and in respect of the ability of companies to obtain marine insurance. Lastly, the United States points out that Article X, paragraph 1, which provides that “[b]etween the territories of the two High Contracting Parties there shall be freedom of commerce and navigation”, contains an “important territorial limitation” and therefore does not apply to goods that are subject to intermediate transactions with third countries.

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70. Iran challenges the concept of “third country measures” which underlies the United States’ second preliminary objection to jurisdiction. According to Iran, this is not only an invention on the part of the Respondent, but above all a concept that is misleading, since in reality all the United States’ measures at issue in this case are specifically targeted at Iran and Iranian nationals and companies, not at third States or their nationals and companies. Iran cites as evidence of this, in particular, the words of the United States Department of the Treasury of 5 November 2018, which described the measures at issue as “the toughest U.S. sanctions ever imposed on Iran, [which] will target critical sectors of Iran's economy”.

71. Taking the example of Article X, paragraph 1, of the Treaty of Amity, which protects “freedom of commerce” “[b]etween the territories of the two High Contracting Parties”, Iran points out that it matters little whether an obstruction to that freedom takes the form of the withdrawal by the United States of a licence permitting an American company to sell products to an Iranian company (a measure which the Respondent does not contest falls within the scope of the Treaty), or of a United States’ sanction on a third State bank or other business that prevents the Iranian company from paying for or physically acquiring the products sold by the American company (which would be a so-called “third country measure”).

72. Iran maintains that its Application is based on certain provisions of the Treaty of Amity interpreted in accordance with the rules codified in the Vienna Convention on the Law of Treaties. The Applicant emphasizes that the ordinary meaning of the text is of key importance and that the context must also be taken into account. In this respect, Iran acknowledges that certain provisions of the Treaty of Amity contain territorial limitations. But the very fact that this is the case in certain provisions is seen by Iran as providing an important part of the context for the interpretation of those provisions where such limitations are absent, since the obvious inference is that such absence is deliberate.

73. Having considered each of the Treaty provisions which it claims that the United States has violated, namely — according to the Application — Articles IV (para. 1), VII (para. 1), VIII (paras. 1 and 2), IX (para. 2) and X (para. 1), together with — under the terms of the Memorial — Articles IV (para. 2), V (para. 1) and IX (para. 3), Iran requests the Court to determine whether, on the basis of the relevant facts which it alleges, there could exist a violation of one or more of those provisions by the United States’ measures which it is contesting. According to Iran, the “relevant facts” are in particular: that the object and effect of the United States’ measures, including the “third country measures”, is to deprive Iranian nationals and companies of their property and enterprises or to harm such property and enterprises on a large scale; that Iranian nationals and companies operating in the key sectors of Iran's economy are being deliberately targeted by the United States’ measures; and that the sanctions are destroying the economy and currency of Iran, driving millions of people into poverty.

74. Reviewing the various provisions of the Treaty which it claims have been violated, Iran concludes that “the violations of the Treaty of 1955 pleaded by Iran . . . fall within the provisions of the Treaty and [that], as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain, pursuant to Article XXI, paragraph 2”, thus echoing the terms of the well-known statement of the Court in the Oil Platforms case.

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75. The Court recalls that, according to its well-established jurisprudence, in order to determine its jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it cannot limit itself to noting that one of the parties maintains that such a dispute exists, and the other denies it. It must ascertain whether the acts of which the applicant complains fall within the provisions of the treaty containing the compromissory clause. This may require the interpretation of the provisions that define the scope of the treaty (see Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 308, para. 46; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16).

76. The Court observes that the “third country measures” objection does not concern all of Iran's claims, but only the majority of them. Indeed, the Respondent stated that one of the four categories into which it divides the measures put in place or reimposed pursuant to the Presidential Memorandum of 8 May 2018 (see paragraph 63 above) cannot be characterized as “third country measures” and is therefore not included in the second preliminary objection to jurisdiction. This fourth category consists of the revocation of certain licensing actions which had made it possible to engage in certain commercial or financial transactions with Iran during the period of implementation of the JCPOA. According to the Respondent, the licences in question, which were revoked pursuant to the Memorandum of 8 May 2018, benefited “U.S. persons” and their withdrawal is not included in the objection now under consideration.

77. It follows that even if the Court were to uphold the second objection to jurisdiction — and assuming that it does not accept any of the other preliminary objections, each of which concerns all of Iran's claims — the proceedings would not be terminated. They would in any event have to continue to the merits in respect of the category of measures challenged by Iran which, according to the United States, are not “third country measures”.

The Court notes, however, that, as regards this category, the United States has declared that it “reserves the right to argue that some or all of Iran's claims based on the revocation of particular licensing actions are outside the scope of the Treaty” at a later stage in the proceedings, should they continue.

78. The Court observes that the Parties are in disagreement about the relevance of the concept of “third country measures” and about the effects that should follow from the application of such a concept in this case. While, according to the United States, the Court should find that it lacks jurisdiction to entertain most of Iran's claims, since the vast majority of the measures complained of by the Applicant are directed against “non-U.S.” persons, companies or entities, Iran, on the other hand, contends that the concept of “third country measures” is irrelevant. It is only necessary, according to the Applicant, to examine each category of measures at issue in order to determine whether they fall within the scope of the various provisions of the Treaty of Amity which it claims to have been violated.

79. Moreover, the Parties disagree on the interpretation of the provisions of the Treaty which Iran claims to have been breached by the United States, as regards their territorial scope and their ambit. According to Iran, the provisions that do not contain an express territorial limitation must be interpreted generally as being applicable to activities exercised in all places, whereas, according to the United States, it follows from the object and purpose of the Treaty of Amity that it is concerned only with the protection of commercial and investment activities of one Party, or of its nationals or companies, on the territory of the other or in the context of trade between them. Furthermore, Iran maintains that the Treaty prohibits the United States from impairing the rights guaranteed to Iran and Iranian nationals and companies, not only through measures applied directly to those nationals or companies, or to “U.S. persons” in their relations with Iran, but also through measures directed in the first instance against a third party, whose real aim is however to prevent Iran, its nationals and its companies from enjoying their rights under the Treaty. The United States contests this view.

80. The Court observes that all the measures of which Iran complains — those put in place or reinstated as a result of the Presidential Memorandum of 8 May 2018 — are intended to weaken Iran's economy. Indeed, on the basis of the official statements of the United States’ authorities themselves, Iran, its nationals and its companies are the target of what the Respondent describes as “third country measures”, as well as of the measures aimed directly against Iranian entities and of those against “U.S. persons” which are intended to prohibit them from engaging in transactions with Iran, its nationals or its companies.

However, it cannot be inferred from the above that all the measures at issue are capable of constituting breaches of the United States’ obligations under the Treaty of Amity. What is decisive in this regard is whether each of the measures — or category of measures — under consideration is of such a nature as to impair the rights of Iran under the various provisions of the Treaty of Amity which the Applicant claims to have been violated.

81. Conversely, the fact that some of the measures challenged — whether or not they are “the vast majority”, as the United States maintains — directly target third States or the nationals or companies of third States does not suffice for them to be automatically excluded from the ambit of the Treaty of Amity. Only through a detailed examination of each of the measures in question, of their reach and actual effects, can the Court determine whether they affect the performance of the United States’ obligations arising out of the provisions of the Treaty of Amity invoked by Iran, taking account of the meaning and scope of those various provisions.

82. In sum, the Court considers that the second preliminary objection of the United States relates to the scope of certain obligations relied upon by the Applicant in the present case and raises legal and factual questions which are properly a matter for the merits (cf. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 586, para. 63). If the case were to proceed to the merits, such matters would be decided by the Court at that stage, on the basis of the arguments advanced by the Parties.

83. In light of the above, the Court finds that the second preliminary objection to jurisdiction raised by the United States cannot be upheld.

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84. For all the reasons set out above, the Court finds that it has jurisdiction ratione materiae to entertain the Application of Iran on the basis of Article XXI, paragraph 2, of the 1955 Treaty of Amity.

A. The abuse

2. I believe that the present Application indeed is inadmissible as an abuse of process in that it seeks from this Court a legally binding judgment compelling the United States to rescind forever only those sanctions that it had suspended pursuant to the Joint Comprehensive Plan of Action (hereinafter the “JCPOA” or the “Plan”) but by action of 8 May 2018 reimposed following its withdrawal from the non-legally binding JCPOAFootnote ². Were the Court to grant Iran the relief it seeks, the United States would be legally bound to previously non-legally binding terms of the JCPOA while the Applicant would remain free not to comply with the JCPOA, as indeed it has admitted to doing alreadyFootnote ³, thereby gaining an illegitimate or illicit advantage.

3. Most unfortunately, in finding the Application to be admissible, the Court has devoted to its discussion of this issue only five paragraphs (92-96) of the 114 comprising the Judgment, in which paragraphs it has said very little. Interestingly, it begins (paragraph 92) by “not[ing] 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”, seeming to intimate that the United States’ decision to concentrate its limited time in the “virtually” conducted oral proceedings on other arguments could be a relevant factor in assessing the merits of the issue. It then proceeds to cite (paragraph 93) various earlier Court cases to the effect that “[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” and that “there has to be ‘clear evidence’ that the Applicant's conduct amounts to an abuse of process”. The Judgment then jumps to the conclusion (paragraph 94), without making any assessment relating to “exceptional circumstances” or “clear evidence”, that “[i]f 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”. Does the Court's approach in these paragraphs not simply suggest that so long as the Court finds that it has jurisdiction, it can never find that an applicant's invocation of such jurisdiction constitutes an abuse of process? Finally, the Judgment (paragraph 95) states that the fact that “most of Iran's claims concern measures that had been lifted in conjunction with the JCPOA and were later reinstated”, and hence exclude the many other sanctions that have been applied to it by the United States for decadesFootnote ⁴, may simply “reflect a policy decision” and does not constitute an abuse of process. I submit that the Court, in brushing off as a “policy decision” the fact that Iran's Application concentrates exclusively on the nuclear-related sanctions suspended by the JCPOA and later reinstated by the Respondent, leaving all of the many other sanctions against it untouched, has avoided actually analysing the import of Iran's strategy, instead hastily turning a blind eye to Iran's obvious abuse of the Court's jurisdiction.

B. Abuse of process as “the holy grail”

4. The reality is that abuse of process has become the holy grail of international law as applied by the Court and its predecessor, the Permanent Court of International Justice (hereinafter the “PCIJ”), i.e. something in which this Court fervently believes, but the actual shape, substance and content of which the Court never has ascertained. As Judge Donoghue wrote in her dissenting opinion in Immunities and Criminal Proceedings (Equatorial Guinea v. France): “I am not aware of any authoritative definition of [‘abuse of process’] in the context of international adjudication”Footnote ⁵. Indeed, neither the Court nor the PCIJ ever has come to grips with the concept of abuse of process, doubtless due to the total absence anywhere of a definitive description or inventory of its contents. I doubt not that this is the reason that in the 95 years since the concept was first addressed judicially neither this Court nor its predecessor ever has applied it to adjudge an application to be inadmissible, despite their various mentions of it.

5. A review of the nonagenarian judicial history of the concept of abuse of process illustrates why its life has remained, like that of an abandoned infant who never has been adopted, fostered or taken in hand by anyone, utterly devoid of substantive development. The first mention of the originating concept of “abuse of rights”Footnote ⁶ in the international law context was by Arturo Ricci-Busatti, one of the ten members of the Advisory Committee of Jurists producing the draft Statute of the PCIJ in 1920Footnote ⁷. Six years later, the PCIJ in Certain German Interests addressed the concept, in rejecting Poland's claim, that Germany had “misused” a substantive right, noting that Germany's action “was not designed to procure . . . an illicit advantage and to deprive [Poland] of an advantage to which [it] was entitled”Footnote ⁸. Still later, in 1932, the PCIJ in the Free Zones case referred to the concept, likewise rejecting its applicationFootnote ⁹.

6. This Court's own dealings with the concept of “abuse of rights”, and its gradual recognition of the concept of “abuse of process” as a fraternal twin of the former, began in 1951 with the Fisheries case. In that case the Court considered the United Kingdom's complaints regarding the way in which Norway had delimited its territorial sea. The Court alluded to the concept of “abuse of rights” when stating that it would not confine itself to examining Norway's delimitation of its territorial waters along only one sector of the coast, “except in a case of manifest abuse”Footnote ¹⁰. Prior to this, however, as well as later, interspersed opinions or declarations of individual judges formed a combination of background music to, and support for the application of, the concept of abuse of rights and eventually abuse of process. Indeed, Judge Alvarez's earlier (1950) dissenting opinion in the advisory proceeding Competence of the General Assembly for the Admission of a State to the United Nations straightforwardly urged adoption by the Court of the “abuse of rights” principle:

In the Ambatielos case in 1953, the Court dealt with the first plea made to it expressly based on abuse of process. The United Kingdom argued that Greece was responsible for “undue delay and abuse of the process of the Court” in that only in 1951 had it made its application to the Court, which it could have done 25 years earlier, in 1926. The Court rejected that defence, stating that Greece had not done “anything improper in instituting proceedings [when it did] in conformity with the relevant provisions of the Statute and Rules of Court”Footnote ¹². Following that, in 1966, Judge Forster in his dissenting opinion to the Judgment in the South West Africa cases argued, given that the League of Nations Mandatory for German South West Africa (today Namibia), i.e. South Africa, had full power over the territory subject to the Mandate, “the discretionary power cannot cover acts performed for a purpose different from that stipulated in the Mandate. Such acts would be an abuse of power [détournement de pouvoir]”Footnote ¹³.

7. In 1991 the Court next addressed, in Arbitral Award of 31 July 1989, an application that the respondent sought to have declared inadmissible expressly on the basis of its plea that the application was an “abuse of process”. The applicant, Guinea-Bissau, argued that an arbitral award won against it by the respondent, Senegal, was invalid due to the fact that the President of the arbitral tribunal, himself a member of the majority that had rendered the award, had appended to it a declaration that contradicted the award. Senegal, however, maintained that

The Court rejected Senegal's claim of inadmissibility, however, stating

One year later, and 29 years ago, in 1992, the Court itself raised the issue of “abuse of process” unprompted for the first time in Certain Phosphate Lands in Nauru. Australia had argued that “Nauru has failed to act consistently and in good faith” and on that basis urged that “the Court in exercise of its discretion, and in order to uphold judicial propriety should . . . decline to hear the Nauruan claims”Footnote ¹⁶. The Court responded as follows:

8. Notwithstanding having dealt with two cases in succession in which the respondent, and then the Court itself, had invoked the concept of “abuse of process” expressis verbis, in 1996, in the Bosnian Genocide case, the Court returned to addressing “abuse of rights”Footnote ¹⁸. Bosnia-Herzegovina argued that Yugoslavia abused its rights by presenting wholly artificial preliminary objections in an attempt to play for time by unjustifiably delaying the proceedings, although, it should be noted, Bosnia's counsel in fact did refer to “abuse[] [of] the procedure of the Court”Footnote ¹⁹, citing the Court's Judgment in the Nauru caseFootnote ²⁰, in which, as noted above, the Court rendered its decision based on its analysis of “abuse of process”. Nevertheless, in dealing a few years later with the Aerial Incident of 10 August 1999, the Court continued to speak of “abuse of rights”, Pakistan having claimed that India had been guilty of such an abuse when it included, in its declaration accepting the Court's compulsory jurisdiction under Article 36 (2) of the Court's Statute, a reservation excluding from such acceptance disputes with States which are or have been a member of the “Commonwealth of Nations”. In finding the application admissible, the Court concluded as follows:

In its 2004 Judgment in Avena and Other Mexican Nationals, the Court dealt with an objection that the respondent (the United States) characterized as relating to an “abuse of the Court's jurisdiction”Footnote ²². The abuse was said to stem from the fact that Mexico had invited the Court to make “far-reaching and unsustainable findings concerning the United States criminal justice systems”Footnote ²³. The Court rejected this objection, finding that it was not barred from enquiring into the conduct of criminal proceedings in United States courts, and the degree to which it might do so was a matter for the merits of the caseFootnote ²⁴. While the United States did not use the terms “abuse of rights” or “abuse of process”, and while it presented this objection as going to the Court's jurisdiction rather than as an objection to the admissibility of Mexico's claims, the objection nonetheless could be considered an abuse of process objection, relating as it did to an alleged abuse of the Court's procedures. While 14 years passed before the Court again was seised of a case in which either “abuse of rights” or “abuse of process” was in issue, it is worth noting that such abuses continued to be subject to acknowledgment and acceptance as a basis for dismissal of an application. Thus Judge Keith's declaration in Certain Questions of Mutual Assistance in 2008, while agreeing with the decision of the Court, expressed a preference for different reasoning, specifically that the acts in issue constituted “an abuse of power or a détournement de pouvoir — an exercise of the power for wrong reasons and a thwarting of the purpose of the Convention”, compliance with which was in issueFootnote ²⁵.

9. After the aforementioned 14-year gap in Court cases dealing with either “abuse of rights” or “abuse of process”, there has been a flurry of activity regarding such abuses in four cases decided starting in 2018. The first was Immunities and Criminal Proceedings, in which France argued that “Equatorial Guinea's conduct was an abuse of rights and that its seisin of the Court was an abuse of process”Footnote ²⁶. In this case, the Court spelled out for the first time the difference between the two abuses:

It is this case in which for the first time a judge of the Court, namely Judge Donoghue, as noted in paragraph 4 above, concluded in her dissenting opinion that the application should have been dismissed at the preliminary stage as being an abuse of process, and therefore inadmissible.

Particularly in light of Judge Donoghue's dissenting opinion, it is troubling that even then the Court did not see itself compelled to do more in dismissing France's abuse of process objection than intone the by now ritual but opaque catchphrases “clear evidence” and “exceptional circumstances”:

It is as though the Court is determined to continue 95 years of enshrouding the principle of abuse of process in mystery, leaving consequently unedified litigants wondering whether the Court itself knows its substance, let alone the threshold for its application. The Court thus would do well to clarify both the principle and the evidentiary condition for its acceptance.

10. Hard on the heels of the Court's Judgment in Immunities and Criminal Proceedings came its Judgment dismissing the United States’ preliminary objections to jurisdiction and admissibility in Certain Iranian Assets. In that case, the United States sought dismissal, inter alia, on the basis of what it came to term an “abuse of process”Footnote ³¹ in that “the fundamental conditions underlying the [1955] Treaty of Amity [, Economic Relations, and Consular Rights between the United States and Iran] no longer exist” and “Iran's attempt to found the Court's jurisdiction on the Treaty does not seek to vindicate interests protected by the Treaty, but rather to embroil the Court in a broader strategic dispute”Footnote ³². As usual when addressing claims of “abuse of process”, the Court devoted only 3 of the 126 paragraphs in its Judgment to its dismissalFootnote ³³. Referring to its Judgments in Immunities and Criminal Proceedings as well as in Certain Phosphate Lands in Nauru, the Court limited itself to the by now standard phrases that to find an application inadmissible on such a basis requires “exceptional circumstances” and “clear evidence”, neither of which standards has ever been defined by the Court, let alone — as Judge Donoghue pointed out in her dissenting opinion in Immunities and Criminal Proceedings — the Court ever having defined “abuse of process” itself. (While I myself approved the dismissal of the United States’ plea of abuse of process in Certain Iranian Assets, the facts of the present case are so far different from those of that case as to have commanded my view favouring dismissal of the application in the present case as inadmissible on the ground of abuse of process.)

11. Less than seven months after Certain Iranian Assets, the Court was confronted by Pakistan's claim that India's application should be held to be inadmissible due to claimed abuses of process. In dismissing those claims of abuse of process, the Court rehearsed the “exceptional circumstances” and “clear evidence” pronouncements of Certain Iranian Assets and Immunities and Criminal Proceedings, while at the same time, however, considering the substance of Pakistan's claimed abuses of process and finding them not to be trueFootnote ³⁴.

C. The Court's Judgment disincentivizes States from agreeing to non-legally binding dispute settlement

12. I reiterate that for this Court even to entertain the possibility, by not declaring the pending Application inadmissible as an abuse of process, of becoming the instrument of a grossly “illegitimate” advantage to the Applicant by forcing upon the Respondent a legally binding Judgment requiring the Respondent to honour undertakings it had made in the non-legally binding JCPOA, which legally it was free to exit, as it did, while leaving the Applicant free to ignore that political instrument, as its Foreign Minister officially broadcast months ago that it already had been doing, is in sharp discord with the Parties’ search for a peaceful resolution of their differences in the form of the JCPOA. As the principal judicial organ of the United Nations, the Court, in confronting a claim that a pending application is inadmissible, should be heedful of the Charter of the United Nations, in particular of its Chapter I, Articles 1 (1) (“take effective . . . measures for the prevention and removal of threats to the peace”) and 2 (3) (“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”). In fulfilment of those shared obligations, the parties to the JCPOA chose to do so by means of a political instrument that is, and was, not legally binding. As the Respondent noted in its Preliminary Objections (para. 5.28), the JCPOA was agreed by the parties as a non-legally binding instrument because it “facilitated an expedient and expeditious resolution that could clear various international political hurdles and also address important domestic legal and political considerations”. The failure of this Court to find the present Application inadmissible, added to its and its predecessor's 95 years of treating the concept of abuse of process with what may fairly be described as acute neglect, most definitely must disincentivize States from seeking to fulfil their obligations under the Charter of the United Nations by means that are not legally binding, which, as was the case with the present Parties, may often be the only means, due to domestic constitutional and political considerations, of complying with that Charter.

D. The uncertain future of abuse of process

13. Thus the concept of “abuse of process” continues, at age 95, to be the holy grail of international law as addressed by the Court, a storied mystery without dimensions, shape or content, with undefined “standards” for its application, which, as a result, though periodically discussed (more so recently), never ever has been invoked successfully before either this Court or the PCIJ. This “precedent” of perpetual absence of any application of the principle of abuse of process doubtless will continue unless and until this Court gives it substance, in the form of a delineation of its contents, totally absent until now, and, in addition, a sharper outline of what are the “exceptional circumstances” and “clear evidence” required to sustain a claim of inadmissibility on that basis. Unless these steps are taken and the nonagenarian “precedent” of non-application of the “principle” of abuse of process continues into the future, the words of Benjamin Disraeli, speaking on 22 February 1848, may be its fate: “A precedent embalms a principle.”Footnote ³⁵

A. Distinctions among paragraphs 1 (a), (b), (c) and (d)

14. To date, the Court has been unable to discern any distinction among paragraphs 1 (a), (b), (c) and (d) of Article XX of the Treaty of Amity, which article provides as follows:

I have agreed, both here, and in Certain Iranian Assets, that a defence based on Article XX, paragraph 1 (d), indeed is to be heard at the merits phase, as the Court previously had ruled in the Oil Platforms case, relying both there and in Certain Iranian Assets (para. 45) on its Judgment in Military and Paramilitary Activities in and against Nicaragua. It seemed to me then, and seems to me now, obvious, given the allegations on which the United States has relied in regard to that defence, that a decision as to whether “measures . . . [have been] necessary to protect its essential security interests”, which defence is not self-judging, involves such a multitude of factors to be considered as to require that it be addressed at the merits stage.

15. In Certain Iranian Assets, the United States invoked also Article XX, paragraph 1 (c) Footnote ³⁶, the Court's rejection of which lacked articulated analysis. After stating in its Judgment (para. 45), in respect of paragraph 1 (d), that “[t]he Court sees no reason in the present case to depart from its earlier findings”, the Court proceeded (paras. 46-47) to dispose of paragraph 1 (c) as follows:

In fairness, in Certain Iranian Assets, I, too, did not distinguish between paragraphs 1 (c) and (d). Inasmuch as the claim in that case was for damages to the extent that Iranian assets subject to United States jurisdiction were being paid out to successful United States plaintiffs in United States court cases against Iran in which Iran defaulted, and given the language of paragraph 1 (c), at least in that situation, clearly in my view, like paragraph 1 (d), for the reasons I have expressed above regarding paragraph 1 (d), it required consideration at the merits stageFootnote ³⁸.

16. Paragraph 1 (b) should, however, have been treated in the present case as a legitimately preliminary objection due to its language and the statements of both Parties that repeatedly have tracked its language in relation to exactly the limited category of sanctions that is the subject of the present Application. To begin, the present Judgment addressed paragraph 1 (b) and (d) together, rehearsing (paragraph 109) its ritual references to Oil Platforms and Certain Iranian Assets, noting that in the latter Judgment “the Court noted that the interpretation given to Article XX, paragraph 1, with regard to subparagraph (d) also applies to subparagraph (c)” and that “[t]he Court observed that in this respect ‘there are no relevant grounds on which to distinguish [subparagraph (c)] from Article XX, paragraph 1, subparagraph (d)’”. This lack of analysis was continued in the next sentence: “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.” The Court then did take one stab at explaining why paragraph 1 (b) must be heard at the merits phase (paragraph 111)Footnote ³⁹:

B. Iranian declarations that the sanctions to which it objects are “nuclear-related” eliminate any possible dispute as to whether such sanctions are “relating to fissionable materials”

17. The Court's decision in this regard is regrettable in that it ignores both the plain language of paragraph 1 (b) and the statements made by both Parties, individually, collectively and in the text of the JPCOA itself confirming that the limited sanctions that are the object of the Application in fact are “relating to fissionable materials, the radio-active by-products thereof, or the sources thereof”.

18. The term “relating to” could hardly be broader, unlike “regulating” in paragraph 1 (a) and (c) and “necessary to protect its essential security interests” in paragraph 1 (d). The Oxford English Dictionary provides two relevant definitions of the phrase “to relate” when coupled with the preposition “to”. The first is “to have reference to; to refer to”. The second is “to have some connection with; to stand in relation to”Footnote ⁴⁰. Neither of these definitions is suggestive of any need to establish a fully organic, Siamese-twins-like connection between a particular measure and fissionable materials. To the contrary, a looser connection between a measure and “fissionable materials” could not be imagined. It is understandable that the Treaty of Amity would afford the Parties such broad flexibility with regard to fissionable materials, given that issues of nuclear proliferation were at the time of the Treaty of Amity's conclusion in 1955 (and remain today) highly sensitive and critical to international peace and security. Sanctions measures are considered to be an important non-proliferation tool, as is evidenced by several United Nations Security Council resolutions aimed at Iran's nuclear programme and which authorized sanctions against IranFootnote ⁴¹.

19. It cannot be denied that “fissionable materials” fundamentally means nuclear substances, nuclear processing and power generation facilities, and nuclear weaponsFootnote ⁴². Anything “nuclear-related” necessarily is “relating to fissionable materials”. A plethora of official Iranian and American statements confirm that the narrow category of sanctions addressed by the Application are “nuclear-related”. During the provisional measures phase, Iran's Agent recalled that, on 8 May 2018, the United States announced its intention to “reinstat[e] U.S. nuclear sanctions on the Iranian regime”Footnote ⁴³. The United States President's remarks on that date indeed began with the statement: “I want to update the world on our efforts to prevent Iran from acquiring a nuclear weapon”, and concluded: “it is clear to me that we cannot prevent an Iranian nuclear bomb” under the JCPOAFootnote ⁴⁴. Thus, the very 8 May 2018 decision that is the fons et origo of Iran's claims in these proceedings evidently “related to” concerns regarding nuclear proliferation in Iran. This is further confirmed by the text of the JCPOA itself, as well as statements made by the participants at the time the JCPOA was finalized. Paragraph v of the JCPOA's preamble states that the Plan “will produce the comprehensive lifting of . . . national sanctions related to Iran's nuclear programme”Footnote ⁴⁵. Paragraph 24 of the JCPOA goes on to state that “[t]he E3/EU and the United States specify in Annex II a full and complete list of all nuclear-related sanctions or restrictive measures and will lift them in accordance with Annex V”Footnote ⁴⁶. In Section 4 of Annex II to the JCPOA, the United States “commits to cease the application of, and to seek such legislative action as may be appropriate to terminate, or modify to effectuate the termination of, all nuclear- related sanctions as specified in Sections 4.1-4.9 below”Footnote ⁴⁷. Thus, both the United States and Iran accepted the text of an agreement that stipulated, multiple times and in clear terms, that the sanctions the United States would suspend were “related to” Iran's nuclear programme. In July 2015, just as the JCPOA was finalized, the European Union's High Representative and the Iranian Foreign Minister issued a joint statement in which they announced that they had “reached an agreement on the Iranian nuclear issue”Footnote ⁴⁸. The Joint Statement went on to note that the JCPOA “includes Iran's own long-term plan with agreed limitations on Iran's nuclear program, and will produce the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran's nuclear programme”Footnote ⁴⁹.

C. Iran has admitted in these very proceedings that the sanctions it attacks are “nuclear-related”

20. Similar acknowledgments of the “nuclear-related” nature of the United States sanctions can be found in the context of these proceedings themselves. During the provisional measures stage of the proceedings, Iran's Agent stated as follows:

In its Memorial, Iran recognizes that “the JCPOA lifted sanctions whose motivation was related to an alleged Iranian military nuclear programme”Footnote ⁵¹. In Chapter II of its Memorial, Iran states that it will describe “in detail the re-imposed ‘nuclear-related sanctions’ in order to clarify their purpose, scope, specific terms, and implementation”Footnote ⁵². In its Observations and Submissions on the United States’ Preliminary Objections, Iran states straightforwardly that:

D. Court precedents accept statements against interest “as a form of admission”

21. As the Court stated in Military and Paramilitary Activities in and against Nicaragua,

As described above, in the present case, the “nuclear-related” nature of the sanctions at issue in this case has been acknowledged not only in official statements of high-ranking Iranian officials, but in the text of the JCPOA itself and in discussions of that instrument. Furthermore, such statements were also made by Iran's Agent himself during the very first hearing in this case, as well as repeatedly in Iran's Memorial submitted in this proceeding and in its Observations and Submissions on the United States’ Preliminary Objections. These statements thus constitute admissions against interestFootnote ⁵⁵.

E. Application of the Vienna Convention on the Law of Treaties

22. The Court has not referred in respect of this issue to the Vienna Convention on the Law of Treaties (hereinafter the “VCLT”). I suggest that reference to its Article 31 would have been in order. In my view, application of Article 31 (1), interpreting Article XX, paragraph 1 (b), of the Treaty of Amity “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” should have led to the conclusion that the United States’ preliminary objection based on paragraph 1 (b) requires the dismissal of the Application. The “ordinary meaning” of “relating to fissionable materials” could not be in doubt. The Treaty of Amity's context included nothing listed in Article 31 (2) of the VCLT other than the Treaty of Amity's “text, including its preamble and annexes”, of which latter there are none. The Treaty of Amity's preamble, which sets the “object and purpose” intended to be reflected in its articles, reads as follows:

The fact that the Treaty of Amity's preamble, for present purposes, focuses on “encouraging mutually beneficial trade and investments and closer economic intercourse generally between their peoples” and, overall, is — as I noted in my separate opinion in Certain Iranian Assets (para. 19) — “essentially commercial in nature”, in no way is inconsistent with the Treaty of Amity's inclusion of provisions such as paragraph 1 (b), and also (d), which provide the two States parties a “safe exit” from their mutual commerce, if and when serious issues arise that militate against continuation of such commerce or dictate the need for its limitation. Unlike paragraph 1 (d), however, given its language, paragraph 1 (b) is subject to being decided as a preliminary matter. Alone, the “context” of the terms of the Treaty of Amity itself is significant. In that sense, paragraph 1 of Article XX itself is contextually material, in that the scope of “relating to fissionable materials” in paragraph 1 (b) obviously is quite different from that of “regulating” either “the importation or exportation of gold or silver” in paragraph 1 (a) or “the production of or traffic in arms”, etc. in paragraph 1 (c), to say nothing of “necessary to protect its essential security interests” in paragraph 1 (d). Nothing in the VCLT's Article 31 (3) (a) or (c) is applicable here, nor is Article 31 (4).

23. What is left as regards application of the VCLT are Article 31 (3) (b), “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, and Article 32, “supplementary means of interpretation”, which include, but are not limited to, the travaux préparatoires, of which nothing relevant to paragraph 1 (b) has been submitted, and “the circumstances of [the treaty's] conclusion”. As to those “circumstances”, one can note again that even at the time the Treaty of Amity was concluded in 1955, issues of nuclear proliferation were highly sensitive and critical to international peace and security. Certainly, the United States would have wished effectively to reserve the right to take “measures”, otherwise violative of the Treaty of Amity, in order to suppress possible nuclear proliferation, and to which Iran at that time easily would have agreed. It was the height of the Cold War, in which period a number of mutual defence treaties and other regional alliances were formed. Indeed, it is well known that precisely in 1955, President Eisenhower, as President of the United States, and his Secretary of State, John Foster Dulles, promoted and supported in many ways the formation that very year, on 24 February, of the Middle East Treaty Organization (METO), known as the Baghdad Pact, the member States of which were Iran, Iraq, Pakistan, Turkey and the United Kingdom, which later became the Central Treaty Organization (hereinafter “CENTO”). The Treaty of Amity was signed on 15 August 1955, just six months laterFootnote ⁵⁶. CENTO terminated in 1979, the year of the Islamic Revolution in Iran. Given that “supplementary means of interpretation” are not defined, the many statements set forth above of authorized representatives of Iran and the United States, as well as the language of the JCPOA itself, to the effect that precisely those sanctions that are the subject of the Application are “nuclear-related”, should have settled the meaning of paragraph 1 (b) and led to the dismissal of the present Application.

(Signed) Charles N. BROWER.