Preliminary objections submitted by the United States of America

INTERNATIONAL COURT OF JUSTICE
CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
PRELIMINARY OBJECTIONS
SUBMITTED BY
THE UNITED STATES OF AMERICA
MAY 1, 2017
i
TABLE OF CONTENTS
CHAPTER 1: Introduction and Overview ........................................................................ 1
Section A: Iran’s Case ..................................................................................................... 2
Section B: The U.S. Preliminary Objections .................................................................. 3
Section C: The Preliminary Character of These Objections ........................................... 6
Section D: The Structure of These Preliminary Objections ............................................ 6
PART I: CONTEXTUAL, EVIDENTIAL, AND LEGAL FOUNDATIONS FOR
THE U.S. PRELIMINARY OBJECTIONS TO ADMISSIBILITY AND
JURISDICTION ...................................................................................................... 8
CHAPTER 2: The Treaty of Amity and U.S.-Iranian Relations Thereunder ............... 8
Section A: The Treaty of Amity Is a Commercial and Consular Agreement ................. 8
Section B: U.S.-Iranian Relations Around the Time of Entry into the Treaty of
Amity ............................................................................................................ 9
Section C: The Seizure of the U.S. Embassy in Tehran and Subsequent Hostage
Crisis Ruptured Relations Between the Parties ........................................... 10
CHAPTER 3: Iranian Sponsorship of Terrorism and Other Destabilizing Acts ........ 11
Section A: Terrorist Bombings Attributable to Iran ..................................................... 12
Section B: Assassinations, Kidnappings, and Airline Hijackings Attributable to
Iran .............................................................................................................. 16
Section C: Iran Has Encouraged, Promoted, and Provided Financial and Other
Support for Terrorism ................................................................................. 21
Section D: Iran Has Violated Nuclear Non-Proliferation, Ballistic Missile, and
Arms Trafficking Obligations ..................................................................... 24
CHAPTER 4: The United States Has Taken Measures to Address Iran’s
Sponsorship of Terrorism and Other Destabilizing Acts ...................... 30
Section A: The United States and Others Have Taken Measures to Combat
Iran’s Unlawful Conduct ............................................................................. 31
Section B: The Parties No Longer Maintain Normal, Ongoing Commercial
Relations ...................................................................................................... 38
CHAPTER 5: The Applicable Legal Framework ........................................................... 39
PART II: U.S. OBJECTIONS TO ADMISSIBILITY AND JURISDICTION ............... 47
CHAPTER 6: U.S. Objections to Admissibility .............................................................. 47
Section A: The Court Should Decline to Found Jurisdiction on the Treaty of
Amity in the Circumstances of the Present Case ........................................ 47
Section B: Iran’s Unclean Hands, Soiled by Decades of Support for Terrorism
and Other Destabilizing Actions in Violation of International Law,
Render Its Claims Inadmissible .................................................................. 54
ii
Measures Covered by Article CHAPTER 7: XX of the Treaty of Amity Fall
Outside the Jurisdiction of the Court ...................................................... 62
Section A: The Exceptions in Article XX(1) Exclude Qualifying Measures from
the Court’s Jurisdiction ............................................................................... 63
Section B: Executive Order 13599 Is Excluded from the Treaty Pursuant to
Article XX(1)(c) as a Measure Regulating Arms Production, Arms
Trafficking, and Military Supplies .............................................................. 65
Section C: Executive Order 13599 Is Excluded from the Treaty Under Article
XX(1)(d) as a Measure Necessary to Protect the United States’
Essential Security Interests ......................................................................... 71
CHAPTER 8: Iran’s Sovereign Immunity-Related Claims Fall Outside the
Scope of Article XXI(2) of the Treaty ..................................................... 78
Section A: It Is Clear from the Text and Context of the Treaty of Amity That It
Does Not Confer Sovereign Immunity ....................................................... 80
Section B: The Subsequent Practice of the Parties Confirms That the Treaty of
Amity Is Not a Source of Sovereign Immunity Rights ............................... 83
Section C: Iran’s Theories for Converting Sovereign Immunity into a Treaty
Right Are Untenable ................................................................................... 87
CHAPTER 9: Iran Cannot Rebrand Bank Markazi as a “Company” Entitled to
Rights Under Articles III, IV, and V of the Treaty ................................ 95
Section A: On Iran’s Own Case, Bank Markazi Is a Sovereign Entity Exercising
Sovereign Functions, Including in the Context of These Claims ............... 97
Section B: As an Entity Purportedly Exercising Exclusively Sovereign
Functions, Bank Markazi Cannot Claim Protections as a “Company”
Under the Treaty ......................................................................................... 99
CHAPTER 10: Concluding Observations..................................................................... 104
SUBMISSIONS .................................................................................................................... 107
CERTIFICATION ............................................................................................................... 109
INTRODUCTION CHAPTER 1: AND OVERVIEW
1.1 On June 14, 2016, the Islamic Republic of Iran (“Iran”) submitted an Application
Instituting Proceedings against the United States pursuant to the compromissory clause,
Article XXI(2), in the 1955 Treaty of Amity, Economic Relations and Consular Rights
between the United States and Iran (“Treaty of Amity” or “the Treaty”).1 Iran challenges
measures the United States has adopted to deter Iran’s support for terrorist attacks against the
United States and others, as well as to respond to other internationally destabilizing actions
taken by Iran. These measures include blocking Iranian assets in the United States and
allowing victims of terrorism to recover damages from Iran and Iranian entities in U.S.
courts. Pursuant to an Order of the Court,2 Iran filed its Memorial on the merits on February
1, 2017. In accordance with Article 79(1) of the Rules of Court (“Rules”), the United States
hereby submits preliminary objections to the admissibility of the Application and the
jurisdiction of the Court, and requests the Court to decide on these objections before any
further proceedings on the merits.
1.2 On March 30, 2017, resting on principles of fundamental fairness and equality, the
United States submitted a request to the Court to require Iran to disclose certain pleadings
and related documents filed in a U.S. judicial proceeding that Iran places at the center of its
case. This proceeding concerned funds in which Iran’s Central Bank, Bank Markazi, had an
interest and which were sought by plaintiffs holding judgments against Iran related to the
1983 bombing of the U.S. Marine barracks in Lebanon (Deborah Peterson, et al. v. Islamic
Republic of Iran, et al., case no. 10-cv-4518 (S.D.N.Y.), hereinafter the “Peterson
enforcement proceeding”). Iran resisted that request, asserting, among other things, that the
documents requested were not relevant to Iran’s claims, and that Iran does not have access to
the documents because it is not a party to the Peterson enforcement proceeding. In the light
of Iran’s response, the Court declined to order Iran to produce the documents in question.
1.3 The reality is that Iran was a party to the Peterson enforcement proceeding, even if it
elected not to appear. And – as set forth later in this pleading – the United States has reason
to believe that the documents in question would demonstrate that Iran, through Bank
1 Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran,
Aug. 15, 1955, 8 U.S.T. 899, T.I.A.S. 3853, 284 U.N.T.S. 93, Appendix A to these Preliminary Objections.
2 Certain Iranian Assets (Iran v. United States), Order, July 1, 2016.
2
Markazi, advanced arguments before the U.S. court that are inconsistent with what Iran is
saying to the Court in the present case about the status of Bank Markazi, issues of sovereign
immunity, and the Treaty. It is a matter of regret that, given the decision not to order the
disclosure of the documents in question, the United States’ ability to address inconsistencies
at the heart of Iran’s claims, potentially amounting to declarations against interest by Iran, has
been hampered. Nonetheless, as set out below, the United States demonstrates that Iran’s case
is fatally flawed.
Section A: Iran’s Case
1.4 Iran seeks to focus the Court’s attention on just one chapter of the deeply troubled
bilateral history between Iran and the United States, and within that chapter on the conduct of
just one Party, the United States. Though Iran cannot rationally expect the Court to be
unaware of its litany of international transgressions, which have earned it the condemnation
of the international community, Iran asks the Court to accord it a remedy for a set of U.S.
measures taken in response to Iran’s decades of offenses. By bringing these claims, Iran does
not seek resolution of a narrow legal dispute concerning the provisions of a commercial
treaty. Rather, it attempts to embroil the Court in a broader strategic dispute.
1.5 Iran attempts to found the jurisdiction of the Court on the compromissory clause of
the Treaty (Article XXI(2)), which provides, inter alia, that a dispute between the Parties “as
to the interpretation or application of the present Treaty” shall be submitted to the Court.3 But
in doing so Iran seeks to use the Treaty as an opportunistic – though inapposite – vehicle for
its claims, the core of which concerns not commercial entities, but the treatment of Iran itself
or its Central Bank, and purported contraventions not of this Treaty’s provisions, but of
customary international law. Iran thus invites the Court to read into the Treaty provisions it
does not contain, to stretch the Treaty, which addresses discrete areas, beyond its breaking
point, and to disregard the clear limits on both Parties’ consent to jurisdiction.
1.6 Iran’s case lacks clarity and definition. This is not surprising given the misfit between
the claims and the instrument used to bring them before the Court. For instance, Iran’s
Memorial does not clearly articulate the contours of its claims under each invoked article of
the Treaty and does not identify which specific entities and assets it claims have been denied
3 Memorial of the Islamic Republic of Iran (hereinafter “Iran’s Memorial”), ¶¶ 1.34, 1.36. References to
documents annexed to Iran’s Memorial are rendered herein as “(IM Annex __).”
3
Treaty protections. Iran makes the treatment of its Central Bank in a single U.S. court
proceeding the centerpiece of its claims, yet it failed to annex to its Memorial copies of the
pleadings that allegedly support its assertions and that – as the United States will discuss
below – likely further undermine the jurisdictional basis for important aspects of its claims.
Moreover, Iran appears to include within the ambit of its claims U.S. court cases that are in
various stages of judicial proceedings and therefore plainly unripe or for which remedies in
the United States have not been exhausted.4 Though the United States raises no jurisdictional
or admissibility argument related to these types of defects in Iran’s claims at this stage, were
this case to proceed to a merits phase, claims related to such proceedings should be
dismissed.
1.7 Iran’s case fails on more fundamental grounds, which are set out in these preliminary
objections. Any further proceedings in this case would require Iran to convince the Court of
two basic points: first, that the Court ought simply to ignore the context of the U.S. actions, in
particular Iran’s longstanding and notorious violations of international law aimed at the
United States and its nationals, as well as the consequently fractured state of U.S.-Iranian
relations; and second, that the Treaty, a commercial and consular instrument of a narrow and
well-known type, can properly be relied upon to found the Court’s jurisdiction to adjudicate
wider aspects of the Parties’ relationship. Iran cannot succeed on either front.
Section B: The U.S. Preliminary Objections
1.8 The United States submits a number of preliminary objections to the admissibility of
Iran’s Application and the jurisdiction of the Court. An overview of these objections is given
in the immediately following sections. The objections to admissibility go to the admissibility
of the Application as a whole on grounds of Iran’s abuse of the Treaty and Iran’s unclean
hands. Given the overarching character of the objections to admissibility, these are set out
first. The objections to jurisdiction address important elements of Iran’s case, rather than its
claims as a whole, notably concerning the application of Article XX of the Treaty and the
character of Iran’s principal claims as claims under customary international law rather than
4 For example, Iran lists (perhaps for optical reasons) a large number of proceedings in which no judgment has
yet been rendered, or in which a judgment has merely been registered but no action has been taken to attach or
execute upon any specific assets. See Application Instituting Proceedings (hereinafter “Iran’s Application”),
Appendix 2, Tables 1 (“Claims Pending”) & 2 (“Judgments Issued”); Iran’s Memorial, Attachment 1 (“U.S.
courts judgments”) & 2 (“Actions filed with U.S. courts to Enforce Judgments”). Where enforcement cases do
involve specific assets, Iran has made no attempt to establish exhaustion. See Iran’s Application, Appendix 2,
Table 3 (“Enforcement Proceedings”); Iran’s Memorial, Attachment 2.
4
under the Treaty.
i. Overview of U.S. Objections to Admissibility
1.9 The United States urges the Court to find that Iran’s Application is inadmissible for
two reasons. The first objection contends that Iran’s reliance on the Treaty to found the
Court’s jurisdiction in this case constitutes an abuse of right. The Treaty was predicated upon,
and was designed to govern, normal and ongoing commercial and consular relations between
the United States and Iran – a state of affairs that has not existed for nearly four decades.
Iran’s claims in the present case arise in the context of a protracted and fundamental rupture
in relations, during which time there has been no general economic intercourse between Iran
and the United States, and no consular relations. Iran has nonetheless attempted to cloak its
allegations in the commercial language of the Treaty, but its claims do not genuinely attempt
to vindicate any interest protected by the Treaty’s provisions. To allow Iran to found
jurisdiction on the Treaty in these circumstances would sanction an abuse of right and
undermine the integrity of the Court’s judicial function.
1.10 Distinct from this objection, Iran’s unclean hands should preclude the Court from
proceeding with this case. Iran’s allegations against the United States are focused on U.S.
measures that engage the legal and political responsibility of Iran as a sponsor of terrorism
directed at the United States, its nationals, and others over the past forty years, as well as its
persistent violations of counter-terrorism, weapons proliferation, and arms trafficking
obligations. Iran comes to the Court with unclean hands, and the Court should decline to
exercise any such jurisdiction it may have, given that the U.S. measures that Iran now seeks
to impugn were taken in response to Iran’s own conduct.
ii. Overview of U.S. Objections to Jurisdiction
1.11 Without prejudice to the overarching character of the U.S. objections to admissibility,
the United States advances three objections to the jurisdiction of the Court, each going to a
different element of the exorbitant character of Iran’s jurisdictional case. These objections are
partial, going to particular aspects of Iran’s claims, rather than to its claims as a whole.
1.12 The first objection to jurisdiction concerns Iran’s claims arising from Executive Order
13599, which froze assets of the Iranian government and Iranian financial institutions within
the United States’ jurisdiction. These claims fall outside the scope of the Treaty and the
jurisdiction of the Court pursuant to Article XX(1) of the Treaty. Executive Order 13599 is
5
part of the United States’ sanctions program and works in conjunction with other U.S. and
international sanctions and regulations to address a range of illicit Iranian activities, including
arms trafficking, support for international terrorism, and the pursuit of ballistic missile
capabilities. The blocking measures set out in the Executive Order are thus covered by
Article XX(1), which provides that the Treaty shall not preclude the application of, inter alia,
measures regulating production of or traffic in arms or military supplies, or measures
necessary to protect a Party’s essential security interests.
1.13 The express language of Article XX(1) makes plain that any measure covered by
Article XX(1) is excluded from the ambit of the Treaty, such that there can be no further
dispute “as to the interpretation or application” of the Treaty’s other provisions with respect
to the covered measure. Accordingly, measures covered by Article XX(1) fall outside the
jurisdictional grant in Article XXI(2).
1.14 The second objection to jurisdiction concerns the part of Iran’s case that is grounded
in claimed violations by the United States of customary international law principles relating
to jurisdictional immunities and immunities from enforcement. 5 Iran elaborates on these
complaints in particular in respect of suits against Iran and the attachment of assets of Bank
Markazi, the Central Bank of Iran. 6 Although Iran’s submissions are framed by the
proposition that the Treaty is “to be interpreted with reference to (and applied in
consideration of) relevant rules of customary international law,” 7 Iran’s implied, and
incorrect, contention is that the Treaty exposes a Party to claimed violations of rules of
customary international law concerning sovereign immunity. This cannot be sustained. Aside
from issues of consular immunities (which are not engaged by Iran’s claims), the Treaty does
not contain any provisions that afford immunities to Iran or Iranian entities or to the United
States or U.S. entities. Such disputes simply do not come within the scope of Article XXI(2)
of the Treaty. Neither the Treaty, nor its jurisdictional clause, can be used as a peg on which
to hang any and all grievances that Iran may wish to pursue against the United States.
1.15 The third jurisdictional objection also concerns Iran’s claims relating to Bank
Markazi, its Central Bank. On the one hand, Iran advances a claim of sovereign immunity in
respect of Bank Markazi, even though there is no basis in the Treaty to pursue an immunity
5 Iran’s Memorial, Chapter II, Section 2.
6 Id. Chapter II, Section 4.
7 Id. ¶ 3.19.
6
claim. On the other hand, Iran seeks paradoxically to rebrand Bank Markazi as a “company”
in an attempt to bring it within the scope of Articles III, IV, and V of the Treaty. Such
rebranding of Iran’s Central Bank as a “company” stretches the meaning of the terms of the
Treaty beyond the demonstrable intention of the Parties. Such claims must also be dismissed
for lack of jurisdiction.
Section C: The Preliminary Character of These Objections
1.16 Each of these objections to admissibility and jurisdiction is properly preliminary in
character and necessitates a decision by the Court at a preliminary stage of these proceedings.
1.17 The U.S. objections to admissibility go to the threshold issue of Iran’s invocation of,
and reliance on, the Treaty to found the jurisdiction of the Court. If upheld, there would be no
basis to proceed to an examination of the merits on any of Iran’s claims.
1.18 The jurisdictional objection based on Article XX also requires a decision at a
preliminary stage because measures covered by Article XX fall outside the scope of the
Treaty’s compromissory clause. The Court cannot proceed to adjudicate the merits of any
dispute between Iran and the United States over the interpretation or application of measures
taken pursuant to Article XX until it has decided whether those measures fall within the
scope of that article.
1.19 The remaining two objections to jurisdiction – concerning Iran’s sovereign immunity
claims and rebranding claims – are also exclusively preliminary in character. Absent a
decision on admissibility that would dispose of the entire case, a decision by the Court on
these jurisdictional objections at a preliminary stage would be necessary to clarify and narrow
the scope of any case going forward.
Section D: The Structure of These Preliminary Objections
1.20 This pleading is organized into two parts. Part I, which encompasses Chapters 2
through 5, provides the contextual, evidential, and legal foundations for the objections to
admissibility and jurisdiction that follow. Chapter 2 addresses the origins of the Treaty, and
the breakdown of friendly relations between the United States and Iran following the Iranian
revolution in 1979 and the seizure of the U.S. hostages.
1.21 Chapter 3 addresses Iranian sponsorship of terrorism and its persistent violation of
weapons proliferation, arms-trafficking, and counter-terrorism obligations. Chapter 4
describes the measures taken by the United States at issue in this case, as well as other
7
measures – U.S. and international – relevant to Iran’s claims. Chapter 5 sets forth the law
applicable in assessing Iran’s claims and the U.S. preliminary objections.
1.22 The objections to admissibility and jurisdiction are developed in Part II, which
encompasses Chapters 6 to 9. Given their threshold and all-encompassing character,
Chapter 6 addresses the U.S. objections to admissibility, including the abuse of right
objection (Section A) and the unclean hands objection (Section B). The Article XX objection
is detailed in Chapter 7. Chapter 8 sets out the objection to jurisdiction going to Iran’s
sovereign immunity claims. Chapter 9 addresses Iran’s misguided attempt to rebrand Bank
Markazi as a “company.”
1.23 The pleading closes with Chapter 10, setting out some concluding observations,
followed by the U.S. Submissions.
8
PART I: CONTEXTUAL, EVIDENTIAL, AND LEGAL FOUNDATIONS FOR THE
U.S. PRELIMINARY OBJECTIONS TO ADMISSIBILITY AND JURISDICTION
THE TREATY OF AMITY AND U.S.-CHAPTER 2: IRANIAN RELATIONS THEREUNDER
2.1 The United States and Iran entered into the Treaty of Amity in 1955 when friendly
relations existed between them and both Parties hoped to further strengthen such relations. In
that context, as explained below in Section A, the Treaty sought to facilitate a commercial,
trade, and investment relationship by providing protections for each Party’s nationals and
companies engaged in ordinary commercial and investment transactions and activities. The
Treaty was not intended to regulate the bilateral relationship as a whole. As described in
Sections B and C, while strong bilateral relations (commercial, consular, and otherwise)
existed for some time, these were dramatically curtailed when the Iranian government
endorsed and supported the sacking of the U.S. Embassy in Tehran and held U.S. diplomatic
personnel and others hostage.
Section A: The Treaty of Amity Is a Commercial and Consular Agreement
2.2 The Treaty of Amity was one in a series of twenty-one post-World War II bilateral
commercial and consular treaties, most often referred to as treaties of “Friendship, Commerce
and Navigation” (“FCN treaties”), between the United States and other friendly nations, all of
which were concluded between 1946 and 1966.8 The primary purpose of the post-war U.S.
FCN treaties was to enable commerce and investment with nations with which the United
States had, and expected to continue having, friendly relations.9 In 1951, Assistant Secretary
of State Willard Thorp described the FCN treaties as part of a “program of extending and
modernizing the treaty protection of American citizens, corporations, capital, trade and
shipping abroad, with special emphasis on establishing conditions favorable to private
8 The Treaty of Amity was described in 1958 as an “abridged edition” of the standard U.S. FCN treaty. Herman
Walker, Jr., Modern Treaties of Friendship, Commerce and Navigation, 42 MINN. L. REV. 805, 807 (1958) (US
Annex 1).
9 See generally Herman Walker, Jr., The Post-War Commercial Treaty Program of the United States, 73 POL.
SCI. Q. 57, 57-58 (1958) (US Annex 2); Herman Walker, Jr., Treaties for the Encouragement and Protection of
Foreign Investment: Present United States Practice, 5 AM. J. COMP. L. 229, 230 (1956) (US Annex 3). Herman
Walker served as a State Department official between 1946 and 1962, and has been described as the “architect
of the modern FCN treaty.” See Wolfgang Saxon, “Herman Walker, 83, Professor and U.S. Foreign Officer,
Dies,” N.Y. Times (May 13, 1994) (US Annex 4); Spiess v. C. Itoh & Co. (America), Inc., 643 F.2d 353, 357
(5th Cir. 1981), vacated, 457 U.S. 1128 (1982) (US Annex 5).
9
investment.”10
2.3 The Treaty of Amity was intended to enable and facilitate engagement by nationals
and companies of each country in commerce between the territories of the two Parties. The
Treaty seeks to achieve this objective principally by establishing a variety of protections
applicable to such nationals and companies in the context of their engagement in ordinary
commercial and investment transactions and activities. Rights the Treaty affords the Parties
themselves – such as for consular representatives to enjoy privileges and immunities
necessary to the performance of their duties – exist to allow the Parties to assist and advise
their nationals and companies. As the Court observed in the Oil Platforms case, the object
and purpose of the Treaty “was not to regulate peaceful and friendly relations between the
two States in a general sense.”11 The history of the FCN treaty program and of this particular
Treaty indicates that the Treaty was never meant to provide a comprehensive set of rules for
every aspect of the Parties’ bilateral relationship.
Section B: U.S.-Iranian Relations Around the Time of Entry into the Treaty of Amity
2.4 The United States and Iran entered into the Treaty at a time when the two countries
were engaged in strengthening their bilateral relationship. This was consistent with the
“peace and friendship” between the Parties, and the desire to, among other things,
“encourag[e] mutually beneficial trade and investments and closer economic
intercourse. . . . ,” as set forth in the preamble and Article I of the Treaty. The Parties’
relationship in this period was thus reflected in, for example, the U.S. provision to Iran of
economic and technical assistance,12 agreements to foster trade and economic cooperation,13
and programs to encourage greater contact and understanding between the people of the two
10 Memorandum from Willard Thorp, Assistant Secretary for Economic Affairs, to Jack K. McFall, Assistant
Secretary for Legislative Affairs (Dec. 29, 1951) (US Annex 6). See also Commercial Treaties with Iran,
Nicaragua, and The Netherlands: Hearing Before the S. Comm. on Foreign Relations, 84th Cong. (1956)
(statement of Thorsten V. Kalijarvi, Dep’t of State) (US Annex 7) (explaining that the Treaty of Amity, as well
as FCN treaties with Nicaragua and the Netherlands, were negotiated in furtherance of Congress’s directive in
the Mutual Security Act of 1954 for the President to “accelerate a program of negotiating treaties for commerce
and trade . . . which shall include provisions to encourage and facilitate the flow of private investment to nations
participating in programs under this act”).
11 Oil Platforms (Iran v. United States), 1996 I.C.J. 803, 814, ¶ 28 (Preliminary Objection Judgment of Dec. 12).
12 “FOA Announces Program of Aid to Iran,” in 31 DEP’T OF STATE BULL. 776 (Nov. 22, 1954) (US Annex 8).
13 See, e.g., Agricultural Commodities Agreement Between the United States and Iran under Title I of the
Agricultural Trade Development and Assistance Act, As Amended (July 26, 1960), T.I.A.S. 4544, 384 U.N.T.S.
141 (US Annex 9); General Agreement for Economic Cooperation Between the Government of the United
States of America and the Imperial Government of Iran (Dec. 21, 1961), T.I.A.S. 4930, 433 U.N.T.S. 269 (US
Annex 10).
10
countries.14
2.5 Aside from those issues covered in the Treaty, the Parties strengthened their
relationship through, among other things, a shared security goal of maintaining peace and
stability in the Persian Gulf. This was manifest in actions such as U.S. support for the
Baghdad Pact (later the Central Treaty Organization (CENTO)), under which the United
States agreed to cooperate with member States in their collective security arrangements, and
the U.S.-Iran Agreement of Defense Cooperation. 15 The two countries expanded their
collaboration over the years, entering into agreements in spheres such as the sharing of
satellite data, civil emergency preparedness, and technical cooperation.16
Section C: The Seizure of the U.S. Embassy in Tehran and Subsequent Hostage Crisis
Ruptured Relations Between the Parties
2.6 The friendly bilateral relationship embodied in the Treaty of Amity came to an abrupt
halt on November 4, 1979. As the Court recounted in its Judgment in the Case Concerning
United States Diplomatic and Consular Staff in Tehran, a group of Iranian armed
demonstrators overran the U.S. Embassy in Tehran and seized the diplomatic personnel and
others present as hostages.17 The Iranian authorities took no action to protect the diplomatic
premises and personnel as required by the Vienna Conventions on Diplomatic and Consular
Relations; 18 instead, the Iranian foreign minister stated during a press conference on
November 5 that the action of the militants “enjoys the endorsement and support of the
14 See, e.g., Agreement Relating to the Establishment of a Peace Corps Program in Iran, U.S.-Iran (Sept. 16,
1962), T.I.A.S. 7078, 791 U.N.T.S. 19 (US Annex 11); Agreement Between the Government of the United
States of America and the Imperial Government of Iran for Financing Certain Educational Exchange Programs
(Oct. 24, 1963), T.I.A.S. 5451, 489 U.N.T.S. 303 (US Annex 12).
15 See, e.g., Declaration Respecting the Baghdad Pact (July 28, 1958), T.I.A.S. 4084, 335 U.N.T.S. 205 (US
Annex 13); Agreement of Cooperation Between the Government of the United States of America and the
Imperial Government of Iran (Mar. 5, 1959), T.I.A.S. 4180 (US Annex 14).
16 See Memorandum of Understanding Between the Plan and Budget Organization of the Imperial Government
of Iran and the United States National Aeronautics and Space Administration (Oct. 29, 1974), T.I.A.S. 8203,
1020 U.N.T.S. 155 (US Annex 15); Memorandum of Understanding Between the Government of Iran, Imperial
Iranian Army, and the Government of the United States of America, General Services Administration, Federal
Preparedness Agency (Nov. 22, 1975), T.I.A.S. 8209 (US Annex 16); Agreement on Technical Cooperation
Between the Government of the United States of America and the Imperial Government of Iran (Mar. 4, 1975),
T.I.A.S. 8235 (US Annex 17).
17 See United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.C.J. 3, 12, ¶ 17
(May 24).
18 See id. at 32, ¶ 67 (citing Vienna Convention on Diplomatic Relations, arts. 22(2), 24-27, 29, Apr. 18, 1961,
T.I.A.S. 7502, 500 U.N.T.S. 95; Vienna Convention on Consular Relations, arts. 5, 36, Apr. 24, 1963, T.I.A.S.
6820, 596 U.N.T.S. 261).
11
government, because America herself is responsible for this incident.”19
2.7 The Court, in the context of a request for provisional measures from the United States,
issued an order demanding that Iran “terminate the unlawful detention” of the U.S.
diplomatic and consular staff and other U.S. nationals.20 Nonetheless, Iran held the American
hostages captive for another eight months. Iran repudiated the Treaty’s goals of friendship
and cooperation through its actions surrounding the taking of the U.S. Embassy in Tehran,
and thereby fundamentally altered the bilateral relationship.
* * *
2.8 The Tehran hostage crisis was ultimately resolved with the signing of the Algiers
Accords on January 19, 1981.21 In addition to securing the release of the American hostages,
the Accords provided for the transfer of Iran’s frozen assets in the United States and the
revocation of U.S. trade sanctions then in place against Iran. The Accords also established the
Iran-U.S. Claims Tribunal, seated in The Hague, for the purpose of resolving certain disputes
between the nationals of one country against the government of the other country, as well as
contractual claims between the United States and Iran.
2.9 The possibility thus still existed at the time for the Parties to resume some relationship
– even if not to the previous extent – on the basis of the Algiers Accords and the principles
enshrined in the Treaty. Regrettably, and as described in detail below, Iran rejected this
possibility and embarked on a path of destabilizing and violent conduct directed at the United
States and others in which it has persisted for decades.
IRANIAN SPONSORSHIP OF TERRORISM AND OTHER CHAPTER 3: DESTABILIZING ACTS
3.1 For decades, Iran has sponsored and supported international terrorism, as well as
taken destabilizing actions in contravention of nuclear non-proliferation, ballistic missile,
arms trafficking, and counter-terrorism obligations.
3.2 Iran has established a highly organized State apparatus, maintained and controlled at
19 Id. at 33, ¶ 70 (quoting Foreign Minister Yazdi).
20 Id. at 44-45, ¶ 95(3).
21 Declarations of the Government of the Democratic and Popular Republic of Algeria concerning commitments
and settlement of claims by the United States and Iran with respect to resolution of the crisis arising out of the
detention of 52 United States nationals in Iran, with Undertakings and Escrow Agreement (Jan. 19, 1981), 20
I.L.M. 223 (US Annex 18).
12
the highest levels of its government, to undertake acts of terror – whether through proxies
such as Hezbollah or otherwise – as a tool of its foreign policy. This is evidenced in the
scores of attacks attributed to the Iranian government, which have resulted in the deaths of
untold innocent lives. Destruction like that inflicted on U.S. and French peacekeepers in
Beirut in 1983 has been “achieved” by the Iranian government through a variety of means,
including terrorist bombings, assassinations, kidnappings, and airplane hijackings. Highranking
Iranian officials have publicly encouraged and promoted such violence and terrorist
acts against the United States, its nationals, and others; and the Iranian government has made
good on that encouragement by providing financial and other support to terrorist proxies such
as Hezbollah willing to carry out its violent foreign policy.
3.3 The abhorrent conduct of the post-revolutionary Iranian regime has not been limited,
however, to its sponsorship of terrorism. For more than a decade, Iran failed to comply with
its nuclear-related obligations under the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT) and was found in 2005 to be in non-compliance with its International Atomic Energy
Agency (IAEA) safeguards obligations. While concerns about Iran’s NPT and IAEA noncompliance
were resolved in connection with the 2015 Joint Comprehensive Plan of Action
(JCPOA) – after years of sanctions imposed under the auspices of the UN – Iran’s continued
post-JCPOA efforts to obtain the technology necessary to develop ballistic missiles and
ongoing arms trafficking and financing to terrorist proxies remain a serious threat.
3.4 The Iranian government has chosen to project its power in the Middle East and the
world through violent, destabilizing, and internationally unlawful conduct, examples of
which are described in detail in this Chapter. Section A sets forth the evidence of several
devastating terrorist bombings attributable to Iran. Section B describes the many
assassinations and assassination attempts, kidnappings, and airplane hijackings attributable to
Iran. Section C discusses the Iranian government’s deep support for terrorism, through its
solicitation of violence against those it opposes and through the provision of financial and
other support that sustains its terrorist proxies. Finally, Section D describes Iran’s past noncompliance
with its nuclear non-proliferation obligations, as well as its ongoing violation of
obligations with respect to ballistic missiles and arms trafficking.
Section A: Terrorist Bombings Attributable to Iran
3.5 Iran’s adoption of terrorism as a tool of its foreign policy, particularly through the use
of terrorist bombings, was made clear in October 1983 when members of Hezbollah – a
13
group founded and supported by Iran – attacked the U.S. and French military barracks in
Beirut.22 It is this heinous act that precipitated the Peterson litigation before the U.S. courts,
which is at the center of Iran’s Application in this case. As part of a multinational
peacekeeping force, military personnel of the United States and France were present in Beirut
at the request of the Government of Lebanon to help the Lebanese armed forces restore
order.23 The agreement between the U.S. and Lebanese governments specifically provided
that the U.S. forces would not engage in combat and would be equipped only with weapons
consistent with that non-combat role.24 Notwithstanding the U.S. peacekeeping role, members
of Hezbollah drove a truck loaded with 18,000 pounds of explosives through the barriers at
the U.S. Marine barracks on the morning of October 23, 1983, and detonated the bomb,
killing 241 U.S. servicemen and gravely wounding many more.25 Shortly afterward, a similar
attack on the French barracks killed 58 French peacekeepers.26
3.6 Speaker of the Majlis (and later President of Iran) Akbar Hashemi Rafsanjani touted
the Iranian government’s responsibility for the bombing in a 1986 address marking the
seventh anniversary of the seizure of the U.S. Embassy and hostages, stating that:
The Americans put the blame for the blow that was delivered to the United
States in Lebanon and the disgrace the Americans suffered there on us;
and, in fact, they should blame us for it. If the U.S. Marines had to flee
Lebanon and if a group of them also went to their graves under those
22 U.S. DEP’T OF DEFENSE, TERRORIST GROUP PROFILES 16 (1988) (US Annex 19) (“Iran created the
[Hezbollah] movement, and some of the [Hezbollah’s] cadres are directly tied to the Iranian Revolutionary
Guard contingent in Lebanon.”).
23 See Letter from Luc de La Barre de Nanteuil, Permanent Representative of France to the United Nations, to
the Secretary-General of the United Nations, U.N. Doc. S/15420 (Sept. 21, 1982) (US Annex 20); Letter from
Charles M. Lichenstein, Acting Permanent Representative of the United States of America to the United
Nations, to the Secretary-General of the United Nations, U.N. Doc. S/15435 (Sept. 24, 1982) (US Annex 21).
Italian military personnel also participated in the multinational force.
24 See Exchange of Notes Constituting an Agreement Between the United States of America and Lebanon on
United States Participation in a Multinational Force in Beirut (Aug. 20, 1982), 1751 U.N.T.S. 4, 21 I.L.M. 1196
(1982) (US Annex 22).
25See Matthew Levitt, The Origins of Hezbollah, The Atlantic, at 4 (Oct. 23, 2013) (US Annex 23); Thomas L.
Friedman, “Beirut Death Toll at 161 Americans; French Casualties Rise in Bombings; Reagan Insists Marines
Will Remain; Buildings Blasted,” N.Y. Times (Oct. 24, 1983) (US Annex 24); “Beirut Death Toll Is 241,” N.Y.
Times (Dec. 15, 1983) (US Annex 25).
26 See Friedman, “Beirut Death Toll at 161” (US Annex 24); Levitt, The Origins of Hezbollah, at 4 (US Annex
23).
14
circumstances, all this was part of the influence of the Islamic
Revolution.27
3.7 Months later, the Minister of the Iranian Revolutionary Guard Corps (IRGC) boasted
that:
With the victory of the Iranian Revolution, America deeply felt the effect
of our hard blow to its corrupt body in Lebanon and other parts of the
world. It knows that both the TNT and the ideology which in one blast sent
to hell 400 officers, NCOs and soldiers of the Marine Headquarters have
been provided by Iran.28
3.8 Iran’s actions against the United States and its nationals perpetrated through its proxy
Hezbollah did not stop there. Hezbollah carried out two separate bomb attacks on the U.S.
Embassy in Beirut. The first attack occurred on April 18, 1983, when a suicide bomber drove
a truck carrying 2,000 pounds of explosives to the front of the embassy in West Beirut and
detonated the bomb, killing sixty-three people.29 The embassy subsequently relocated to East
Beirut, where, on the morning of September 20, 1984, a suicide bomber crashed a stolen van
with diplomatic plates through the security checkpoint and blew it up at the entrance to the
building.30 That blast killed twenty-four people.31
3.9 Hezbollah and Iran were also charged with criminal responsibility for the July 18,
1994, bombing of the Asociación Mutual Israelita Argentina (“AMIA”) building in Buenos
Aires, Argentina.32 That attack killed eighty-five people and injured hundreds of others.33
Argentine prosecutors later alleged that the attack was “a decision made by the highest
authorities of the Islamic Republic of Iran, who then charged the Lebanese group [Hezbollah]
27 “Hashemi-Rafsanjani on Alleged McFarlane Visit,” Tehran Radio Domestic Service, in VII Foreign
Broadcast Information Service Daily Rep. 11 (Nov. 5, 1986) (US Annex 26). The Majlis is Iran’s national
legislative body.
28 “Speech of Our Brother Rafiqdoust at One of the Country’s Factories for Defense,” Ressalat (July 20, 1987)
(US Annex 27).
29 See Thomas L. Friedman, “U.S. Beirut Embassy Bombed; 33 Reported Killed, 80 Hurt; Pro-Iran Sect Admits
Action,” N.Y. Times (Apr. 19, 1983) (US Annex 28); Levitt, The Origins of Hezbollah, at 3 (US Annex 23).
The Islamic Jihad Organization claimed responsibility for the attack; analysts have determined that this was a
cover name or earlier iteration of Hezbollah. See, e.g., TERRORIST GROUP PROFILES at 15-16 (US Annex 19);
Levitt, The Origins of Hezbollah, at 4 (US Annex 23).
30 See John Kifner, “23 Die, Including 2 Americans, in Terrorist Car Bomb Attack on the U.S. Embassy at
Beirut; Blast Kills Driver,” N.Y. Times (Sept. 21, 1984) (US Annex 29).
31 See Levitt, The Origins of Hezbollah, at 4 (US Annex 23).
32 Hernán Cappiello, “Iran Charged for Attack on AMIA” [“Acusan a Irán por el ataque a la AMIA”], La
Nación (Oct. 26, 2006) (US Annex 30).
33 “Buenos Aires bomber ‘identified,’” BBC News (Nov. 10, 2005) (US Annex 31).
15
with carrying it out.”34 Following the Argentine indictment of Hezbollah and Iran, Interpol
Red Notices were issued for six individuals, including five Iranian government officials, in
connection with the bombing. 35 Despite Argentina’s repeated requests for assistance,
however, the Iranian government has refused to cooperate with the Red Notices.36
3.10 Iran has been linked to numerous other bombings and attempted bombings. The
Kingdom of Bahrain discovered terrorist cells in its territory in November 2011, October
2012, and March 2013, which were financed and directed by the IRGC, as well as facilities
that produced bombs used to kill sixteen and injure 3,169 Bahraini police officers.37 In 2012,
Kenyan authorities arrested and convicted two Iranian nationals identified as members of the
IRGC-Qods Force (IRGC-QF) in connection with explosives stockpiled for a suspected
terrorist attack.38
3.11 An unsuccessful plot in 2007 to commit a terrorist attack at John F. Kennedy
International Airport by exploding fuel tanks and a fuel pipeline under the airport also has
34 Cappiello, “Iran Charged for Attack on AMIA” (US Annex 30).
35 Interpol Media Release, “INTERPOL General Assembly upholds Executive Committee decision on AMIA
Red Notice dispute” (Nov. 7, 2007) (US Annex 32). Red Notices were issued for, among others, Ahmad Vahidi,
former Iranian defense minister and member of the IRGC-QF; Ali Fallahian, a former Iranian intelligence
minister who was also found by the Berlin court in the Mykonos case to have been responsible for carrying out
the instruction to kill Kurdish leader Sharafkandi, Judgment of the Superior Court of Justice, Berlin, in the
Mykonos trial [Kammergericht: Urteil im ‘Mykonos’ –Prozess], at 22 (Apr. 10, 1997) (US Annex 33); Mohsen
Rabbani, the former Iranian cultural attaché in Argentina, who was to meet with Abdul Kadir, one of the
defendants convicted in the 2007 plot to bomb John F. Kennedy International Airport, Federal Bureau of
Investigation Press Release, “Imam from Trinidad Convicted of Conspiracy to Launch Terrorist Attack at JFK
Airport” (May 26, 2011) (US Annex 34); and Mohsen Rezaee, former IRGC commander and member of Iran’s
Supreme Defense Council. In May 2013, the Argentine prosecutor submitted an indictment “legally accus[ing]
Iran of infiltrating several South American countries to install intelligence stations . . . destined to commit,
encourage and sponsor terror attacks like the one that took place against AMIA.” “Iran ‘in Latin America terror
plot’ - Argentina prosecutor,” BBC News (May 29, 2013) (US Annex 35).
36 UN GAOR, 62nd Sess., 5th plen. Mtg., Address by Nestor Carlos Kirchner, President of the Argentine
Republic, U.N. Doc. A/62/PV.5, at 15 (Sept. 25, 2007) (US Annex 36); UN GAOR, 63rd Sess., 5th plen. Mtg.,
Address by Cristina Fernandez de Kirchner, President of the Argentine Republic, U.N. Doc. A/63/PV.5, at 23
(Sept. 23, 2008) (US Annex 37); UN GAOR, 64th Sess., 5th plen. Mtg., Address by Cristina Fernandez de
Kirchner, President of the Argentine Republic, U.N. Doc. A/64/PV.5, at 2-3 (Sept. 23, 2009) (US Annex 38);
UN GAOR, 62nd Sess., Agenda item 8, Letter from the Permanent Representative of Argentina to the UN
addressed to the President of the General Assembly, U.N. Doc. A/62/519 (Nov. 2, 2007) (US Annex 39); UN
GAOR, 63rd Sess., Agenda item 8, Letter from the Permanent Representative of Argentina to the U.N
.addressed to the President of the General Assembly, U.N. Doc. A/63/523 (Nov. 7, 2008) (US Annex 40); UN
GAOR, 64th Sess., Agenda item 8, Letter from the Permanent Representative of Argentina to the UN addressed
to the President of the General Assembly, U.N. Doc. A/64/505 (Oct. 28, 2009) (US Annex 41).
37 UN GAOR, 70th Sess., Agenda items 85 and 108, Letter from the Permanent Mission of Bahrain to the UN
addressed to the Secretary General, U.N. Doc. A/70/445 (Oct. 26, 2015) (US Annex 42).
38 “In Kenya, two Iranians get life in prison for plotting attacks,” L.A. Times (May 6, 2013) (US Annex 43);
Cyrus Ombati, “Iranians’ 30-bomb plot in Kenya,” The Standard (July 4, 2012) (US Annex 44).
16
been linked to the Government of Iran. Four individuals were convicted in 2011 and 2012 in
federal court in New York on terrorism charges and sentenced to prison terms for their
involvement in the plot.39 One of the conspirators advised the others to meet with his contacts
in Iran, including Mohsen Rabbani, a former Iranian government official who was indicted
for his role in the 1994 AMIA bombing.40
Section B: Assassinations, Kidnappings, and Airline Hijackings Attributable to Iran
3.12 Iran has long relied on assassinations to remove dissidents and others in opposition
(or perceived opposition) to its regime. Among the most notorious examples is the September
17, 1992, assassination of four members of the Democratic Party of Kurdistan-Iran (DPK-I)
at the Mykonos Restaurant in Berlin. Armed with a machine gun and a handgun, two
assassins entered the restaurant and killed Dr. Sadegh Sharafkandi, Secretary-General of the
DPK-I, Fathol Abdouli, the group’s European representative, Homayoun Ardalan, its
representative in Germany, and Nuri Dehkurdi, a translator.41 A number of suspects were
arrested soon afterward, and four – at least two of whom were members of Hezbollah – were
subsequently convicted by the Berlin Superior Court of Justice on charges of murder or
complicity to murder.42 Moreover, the German authorities issued an arrest warrant for Ali
Fallahian, the Iranian Minister of Information and Security, for his involvement in the
assassinations. 43 During the related criminal trial, the Berlin Superior Court of Justice
confirmed the Iranian government’s responsibility for the killing of the four DPK-I members.
In its Judgment, the Court stated that:
The evidence has revealed the decision-making procedures within the
Iranian leadership, which in the final analysis has led to the liquidation of
opposition politicians abroad. Decisions on such operations are in the
hands of the secret, extra-constitutional “Committee for Special Matters,”
whose members include the President of Iran, the Minister of the Secret
39 Federal Bureau of Investigation Press Release, “Russell Defreitas Sentenced to Life in Prison for Conspiring
to Commit Terrorist Attack at JFK Airport” (Feb. 17, 2011) (US Annex 45).
40 See Federal Bureau of Investigation Press Release, “Kareem Ibrahim Sentenced to Life in Prison for
Conspiring to Commit Terrorist Attack at JFK Airport” (Jan. 13, 2012) (US Annex 46).
41 See Parliamentary Human Rights Group, Iran: State of Terror, An account of terrorist assassinations by
Iranian agents, at (1996) (US Annex 47). As noted in the report, “the Parliamentary Human Rights Group was
founded in 1976 as an independent forum in the British Parliament concerned with the defense of international
human rights.”
42 Mykonos Judgment (US Annex 33).
43 See Parliamentary Human Rights Group, Iran: State of Terror, at p. 33 (US Annex 47).
17
Service VEVAK, the foreign policy chief, representatives of the security
forces and other organizations, as well as the “religious leader.”44
3.13 The court also found the Iranian government responsible for the July 13, 1989,
murder of three other DPK-I leaders in Vienna, stating that “the connection between the
assassinations in Vienna and Berlin is obvious. Any suggestion that they were the result of
conflicts among Kurdish opposition groups can be ruled out.”45
3.14 Following this judgment, virtually all member States of the European Union (EU)
recalled their ambassadors to Iran.46 The EU Presidency issued a Declaration in April 1997
stating that “[i]n the findings of the Superior Court of Justice in Berlin in the so-called
Mykonos case the involvement of the Iranian authorities at the highest levels was
established” and declaring that “[t]he European Union condemns this involvement of the
Iranian authorities and regards such behaviour as totally unacceptable in the conduct of
international affairs.”47
3.15 A rash of abductions in the 1980s targeting Westerners has also been attributed to Iran
via its proxy Hezbollah. William Buckley, the CIA station chief in Beirut, was abducted on
March 16, 1984; his body was dumped near the Beirut airport in December 1991.48 Lt. Col.
Richard Higgins, a military observer with the UN Truce Supervision Organization in
Lebanon, was abducted on February 17, 1988, and later killed.49 Other victims include Terry
Anderson, a U.S. journalist abducted on March 16, 1985, and not released until December 4,
1991;50 Father Lawrence Jenco, a Roman Catholic priest who was the head of Catholic Relief
44 Mykonos Judgment, at 2 (US Annex 33).
45 Id.
46 “EU Members Urged Not to Send Ambassadors Back to Iran,” RadioFreeEurope/RadioLiberty (May 9, 1997)
(US Annex 48).
47 Declaration by the Presidency on behalf of the European Union on Iran (Apr. 10, 1997) (US Annex 49). On
April 29, 1997, the EU Council of Foreign Ministers reaffirmed the April 10 Declaration, called on Iran to abide
by its commitments under international agreements, and curtailed further engagement with Iran. EU Press
Release No. 26/97, “European Union Declaration on Iran” (Apr. 29, 1997) (US Annex 50).
48 See Marilyn Raschka, “Body Dumped in Beirut Identified as Buckley’s: Hostage: Former senior CIA official,
kidnapped in 1984, was reported slain in 1985,” LA Times (Dec. 28, 1991) (US Annex 51).
49 See S.C. Res. 618, U.N. Doc. S/RES/618 (July 29, 1988) (US Annex 52); Timothy McNulty, “FBI: Higgins
Most Likely Is Hanged Man,” Chicago Tribune (Aug. 8, 1989) (US Annex 53).
50 See Chris Hedges, “The Last U.S. Hostage; Anderson, Last U.S. Hostage, Is Freed By Captors in Beirut,”
N.Y. Times (Dec. 5, 1991) (US Annex 54).
18
Services in Beirut, kidnapped on January 8, 1985, and released on July 26, 1986;51 and Terry
Waite, a representative of the Archbishop of Canterbury, in Lebanon to negotiate the release
of hostages when he was abducted on January 20, 1987, and not released until November 18,
1991.52
3.16 Hezbollah was also responsible for a number of airplane hijackings. These include the
June 1985 hijacking of TWA flight 847, in which thirty-nine passengers were held hostage
for 17 days and one passenger, U.S. Navy diver Robert Stethem, was killed.53 In July 1987,
an Air Afrique aircraft was hijacked en route from Brazzaville to Paris; a French citizen was
killed.54 Kuwait Airways Flight 422, flying from Bangkok to Kuwait, was hijacked in April
1988 with 112 passengers, including three members of the Kuwaiti royal family, on board.55
The aircraft landed in Iran and, after several days of negotiations, the hijackers forced the
aircraft to fly to Cyprus; the Hezbollah hijackers then killed two passengers before forcing
the plane to fly to Algeria, where they escaped.56
3.17 The U.K. Parliamentary Human Rights Group has documented many other attacks on
dissidents that were directed by the Iranian government, including the murder of Mohammad
Hossein Naghdi, the representative of the National Council of Resistance of Iran (NCRI) in
Rome, on March 16, 1993; the murders of Zahra Rajabi, a member of the NCRI, and her
colleague Abdul Ali Moradi, on February 20, 1996, in Istanbul; and the murder of Reza
Mazlouman, a former professor of criminology at Tehran University and former Deputy
Minister under the Shah, on May 28, 1996, in Paris.57 The UN Commission on Human Rights
51 See Clyde R. Mark, Congressional Research Service, 90-133 F, “Lebanon: The Remaining U.S. Hostages, a
Chronology, 1984-1988,” at 11, 16 (Mar. 6, 1990) (US Annex 55).
52 See Elaine Sciolino, “The Hostage Drama; 2 Western Hostages Freed in Lebanon,” N.Y. Times (Nov. 19,
1991) (US Annex 56). Other victims of abductions attributed to Hezbollah during this period include educators
at international institutions such as the American University Beirut and numerous U.S., French, and British
journalists. See Cong. Research Service, “Lebanon: The Remaining U.S. Hostages” (US Annex 55).
53 See TERRORIST GROUP PROFILES at 17 (US Annex 19); Frontline, “Target America,” program #2001
transcript, airdate Oct. 4, 2001, pp. 10-12 (US Annex 57).
54 See TERRORIST GROUP PROFILES at 18 (US Annex 19).
55 See “Chronology of Events in Hijacking of Kuwait Airways Flight 422,” Associated Press (Apr. 12, 1988)
(US Annex 58).
56 See id.; TERRORIST GROUP PROFILES at 18 (US Annex 19).
57 See Parliamentary Human Rights Group, Iran: State of Terror, at 11, 17-20, 25-28 (US Annex 47); UN Econ.
& Soc. Council, Comm. On Human Rights, Report on the situation of human rights in the Islamic Republic of
Iran, U.N. Doc. E/CN.4/1995/55, at p. 6 (Jan. 16, 1995) (US Annex 59) (referencing reported assassinations of,
among others, Rafour Hamzai, representative of the Democratic Party of Iranian Kurdistan in Baghdad on
August 4, 1994; Iranian citizen Assadi Mohammad Ali in Romania on November 12, 1994; and Kazem Radjevi
in Switzerland on April 24, 1990).
19
has also noted its concern over Iran’s attacks on its own citizens, stating that it:
Deplore[d] the continuing violence against Iranians outside the Islamic
Republic of Iran, and urge[d] the Government of the Islamic Republic of
Iran to refrain from activities against members of the Iranian opposition
living abroad and to cooperate wholeheartedly with the authorities of other
countries in investigating and punishing offenses reported by them.58
3.18 In its 1996 report, the U.K. Parliamentary Human Rights Group stated that, since the
revolution, Iran had been tied to over 150 assassination attempts against Iranian dissidents
living in other countries, terrorist acts committed in 21 countries, and the deaths of or injuries
to 350 people in those attacks.59 Noting that Iran’s “use of terrorism as an adjunct to foreign
policy has developed into an organised and professional activity over the last 15 years,” the
report stated the problem in stark terms:
The international community has to confront the unthinkable: that a
member state of the United Nations is dedicated to subverting international
law, and carrying the infection of its own brand of religious terrorism into
the four quarters of the globe. . . . the Iranian government is indeed
organising an international murder machine.60
3.19 Officials in the Iranian military, including the IRGC-QF, were also implicated in the
conspiracy to assassinate the ambassador of Saudi Arabia to the United States in 2011. An
Iranian-U.S. dual national pleaded guilty to conspiring with Iranian military officials to
assassinate the ambassador, including traveling to Mexico to hire individuals to commit the
murder and facilitating a $100,000 down-payment for the killing. 61 The Council of the
League of Arab States “express[ed] its condemnation and rejection of the criminal Iranian
attempt,”62 and the United Kingdom’s Foreign Secretary observed that “[t]he assassination
plot appears to constitute a[n] escalation in Iran’s sponsorship of terrorism outside its
58 UN Econ. & Soc. Council, Comm. On Human Rights, Situation of human rights in the Islamic Republic of
Iran, U.N. Doc. E/CN.4/1996/177, at 275 (Apr. 24, 1996) (US Annex 60).
59 Parliamentary Human Rights Group, Iran: State of Terror, at 3 (US Annex 47).
60 Id. at 5-6 (US Annex 47).
61 U.S. Dep’t of Justice Press Release, “Man Pleads Guilty in New York to Conspiring with Iranian Military
Officials to Assassinate Saudi Arabian Ambassador to the United States” (Oct. 17, 2012) (US Annex 61); Letter
from the U.S. Dep’t of Justice, U.S. Attorney, Southern District New York, United States v. Manssor Arbabsia,
S1 11 Cr 897 (JFK), Plea Agreement of Manssor Arbabsia (Oct. 17, 2012) (US Annex 62).
62 Letter addressed to the Secretary-General and the President of the Security Council, Statement issued by the
Council of the League of Arab States, U.N. Doc. S/2011/640 (Oct. 17, 2011) (US Annex 63).
20
borders.”63 In response, the EU imposed sanctions on five individuals, including the head of
the IRGC-QF. 64 The UN General Assembly adopted a resolution calling upon Iran “to
comply with all of its obligations under international law, including the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents.”65
3.20 Iran’s neighbors also have been the victims of its support for terrorist acts. In
Azerbaijan, authorities reported the arrest or conviction of terrorists with links to the Iranian
government, including the IRGC, who were planning attacks on the government and Western
targets in 1997, 2009, and 2012.66 In October 2016, the permanent representatives to the UN
of eleven Arab States addressed a letter to the Secretary-General in which they noted Iran’s
“expansionist regional policies, flagrant violations of the principle of sovereignty and
constant interference in the internal affairs of Arab States.” 67 They stated their deep concern
over Iran’s activities, “stress[ing] that the Islamic Republic of Iran is a State sponsor of
terrorism in our region, from [Hezbollah] in Lebanon and Syria, to Houthis in Yemen and
terrorist groups and cells in the Kingdom of Bahrain, Iraq, the Kingdom of Saudi Arabia,
Kuwait and elsewhere.”68
63 UK Foreign & Commonwealth Office Announcement, “Foreign Secretary welcomes EU sanctions following
assassination plot in the US” (Oct. 21, 2011) (US Annex 64); see also UN GAOR, 66th sess., Agenda item 118,
Letter from the Permanent Representative of Saudi Arabia to United Nations addressed to the Secretary-
General, U.N. Doc. A/66/553 (Nov. 14, 2011) (US Annex 65); UN GAOR, 66th sess./U.N.S.C, 66th year,
Agenda item 109, Letter from the Secretary General addressed to the President of the General Assembly and the
President of the Security Council, A/66/517, S/2011/649 (Oct. 19, 2011) (US Annex 66).
64 EU-U.S. Summit joint statement, Memo/11/842 (Nov. 28, 2011) (US Annex 67).
65 UN GAOR, Resolution adopted by the General Assembly, “Terrorist attacks on internationally protected
persons,” U.N. Doc. A/RES/66/12 (Nov. 18, 2011) (US Annex 68).
66 Supreme Court of Azerbaijan Judgment, Case No. 63, at 2 (Apr. 14, 1997) (US Annex 69) (finding that
individuals cooperated with Iranian officials for purposes of overthrowing the Government of Azerbaijan and
sabotaging American and Israeli institutions); “Azeri, Lebanese Citizens Sentenced in Baku for Plans to Blowup
Gabala Radar,” Interfax (Oct. 5, 2009) (US Annex 70) (reporting on Azerbaijani court sentencing six persons
suspected of terrorism, including planning terrorist acts against Israeli embassy on orders from Hezbollah and
IRGC); “Azerbaijan arrests plot suspects, cites Iran link,” Reuters (Jan. 25, 2012) (US Annex 71) (reporting on
arrest of two men suspected of plotting attack on Israel’s ambassador and local rabbi, and Azeri authorities
linking of thwarted attack and previous attacks to Iran and Hezbollah); “Azerbaijan arrests 22 alleged Iranbacked
attack plotters,” Al Arabiya News (Mar. 14, 2012) (US Annex 72) (reporting on arrest of 22 individuals
on suspicion of plotting attacks on the U.S. and Israeli embassies on behalf of Iran).
67 UN GAOR, 71st sess., Agenda item 8, Note verbale from the Permanent Representative of the United Arab
Emirates to the United Nations addressed to the Secretary General, U.N. Doc. A/71/581, at 2 (Oct. 31, 2016)
(US Annex 73).
68 Note verbale, U.N. Doc. A/71/581, at 1 (Oct. 31, 2016) (US Annex 73). In 2015, the Gulf Cooperation
Council (“GCC”) Supreme Council issued a communique stating it “rejected completely the ongoing
interference by Iran in the internal affairs of member States and the States of the region” and “urged Iran to
21
Section C: Iran Has Encouraged, Promoted, and Provided Financial and Other
Support for Terrorism
3.21 In both word and deed, Iran has instigated and supported the commission of terrorist
acts against the United States, its nationals, and others. Iranian officials have issued death
threats and publicly called for acts of terrorism, and Iran has admitted to funding and
supporting terrorist entities, which have in turn acknowledged that assistance as fundamental
to sustaining their operations. Far from renouncing this behavior, Iran has repeatedly
reaffirmed its commitment to a foreign policy of violence and support for terrorist acts.
3.22 A prime example of Iran’s calls for violence and terrorist acts (and the very real
consequences of such encouragement) is the fatwa issued by Ayatollah Khomeini on
February 14, 1989, calling for the murder of British novelist Salman Rushdie and of those
who facilitated the publication and distribution of his novel, “The Satanic Verses”:
I would like to inform all the intrepid Muslims in the world, that the author
of the book entitled “Satanic Verses”—which has been compiled, printed,
and published in opposition to Islam, to the Prophet, and to the Koran—as
well as those publishers who were aware of its contents are sentenced to
death.
I call on all the zealous Muslims to execute them quickly, wherever they
find them, so that no one will dare to insult the Islamic sanctities.
Whoever is killed on this path will be regarded as a martyr, God willing. In
addition, if anyone has access to the author of the book but does not
possess the power to execute him, he should point him out to the people,
so that he may be punished for his actions.69
3.23 In response to the fatwa, in 1991, the Japanese translator of the novel, Professor
Hitoshi Igarashi, was stabbed to death at his university outside Tokyo.70 The same year,
Italian translator Ettore Capriole was stabbed at his home in Milan.71 Two years later, the
director of the Norwegian publishing house that published the novel in Norway was shot.72
Following these attacks, the UN Commission on Human Rights adopted a resolution
cease such practices immediately.” UNSC, Letter dated 10 December 2015 from the Permanent Representative
of Saudi Arabia to United Nations addressed to the President of the Security Council, S/2015/954, at 8 (Dec. 21,
2015) (US Annex 74).
69 “[Khomeini] Exhorts Muslims to ‘Execute’ Rushdie,” Tehran Radio Domestic Service, in Foreign Broadcast
Information Service Daily Rep., FBIS-NES-89-029 (Feb. 14, 1989) (US Annex 75).
70 Parliamentary Human Rights Group, Iran: State of Terror, at 85 (US Annex 47).
71 Id.
72 Id.
22
expressing its “grave concern that there are continuing threats to the life of Mr. Salman
Rushdie, as well as to individuals associated with his work, which have the support of the
Government of the Islamic Republic of Iran.”73 As for Mr. Rushdie, an Iranian State-funded
foundation posted a bounty on his head, forcing him to spend years hiding from those seeking
to carry out Ayatollah Khomeini’s edict.74
3.24 Ayatollah Khomeini’s fatwa is far from the only example of Iran soliciting others to
commit violence and terrorist acts. In a speech to the Iranian parliament in 1989, then-
Speaker Rafsanjani called for the killing of Americans and other Westerners by saying:
It is not hard to kill Americans or Frenchmen. It is a bit difficult to [kill]
Israelis. But there are so many [Americans and Frenchmen] everywhere in
the world.75
3.25 In the same speech, Mr. Rafsanjani called for hijacking airplanes and blowing up
factories in Western countries, and noted his lack of concern that he would be accused of
encouraging violence:
Now they will start saying that so and so, as a man in charge, and as the
speaker of parliament has officially called for acts of terror . . . . But let
them say it . . . . Aren’t they saying it now?76
3.26 Furthermore, officials of the Iranian government have repeatedly endorsed the
sentiment of chants of “Death to America” that are a familiar refrain at rallies in Iran. In
1995, Iran’s current President, Hassan Rouhani, reportedly stated that “the beautiful cry of
‘Death to America’ unites our nation.”77 And this was not his last endorsement of such
speech: eight years later, as a presidential candidate, Rouhani reportedly stated that “[s]aying
‘Death to America’ is easy. We need to express ‘Death to America’ with action.”78 In 2009,
Ayatollah Khamenei stated that “[t]he peoples burn [the U.S.] flag. The Islamic peoples all
over the world chant: ‘Death to America!”79
73 ECOSOC, Situation of human rights in the Islamic Republic of Iran, at 275 (1996) (US Annex 60).
74 Robert Tait, “Iran resurrects Salman Rushdie threat,” Telegraph (Sept. 16, 2012) (US Annex 76).
75 “Majlis Speaker Urges Attacks on U.S. Citizens,” Tehran IRNA, in Foreign Broadcast Information Service
Daily Rep., FBIS-NES-89-086, at 45-46 (May 5, 1989) (US Annex 77).
76 Id.
77 Sohrab Ahmari, “About That New ‘Moderate’ Iranian Cabinet…”, Wall St. J. (Aug. 9, 2013) (US Annex 78).
78 Id.
79 “Iranian Leader Ali Khamenei in Response to President Obama’s Message to the Iranian People: Change in
Words Is Not Enough,” Middle East Media Research Institute (Mar. 20, 2009) (US Annex 79).
23
3.27 Were Iran’s efforts limited to such statements, they would be cause for concern.
Unfortunately, Iran’s support for violence and terrorist acts goes well beyond such public
provocations. Iran’s support for terrorism is widely acknowledged. UN bodies have
demanded that Iran “cease forthwith any involvement in or toleration of murder and Statesponsored
terrorism against Iranians living abroad and the nationals of other States,”80 and
reaffirmed that “[g]overnments are accountable for assassinations and attacks by their agents
against persons in the territory of another State, as well as for the incitement, approval or
wilful condoning of such acts.”81
3.28 As both Iran and its proxies have publicly confirmed, Iran has for decades provided
financial and other support for the acts of terrorist organizations in contravention of
international law, which – as expressed in UN Security Council resolution 1373 (2001) –
requires all States to “[r]efrain from providing any form of support, active or passive, to
entities or persons involved in terrorist acts.”82 Despite this, and despite more specific UN
Security Council resolutions calling for the withdrawal of foreign forces from Lebanon, the
immediate cessation by Hezbollah of all attacks, and the “disbanding and disarmament of all
Lebanese and non-Lebanese militias,” 83 Iran has made no secret of its support for its
Lebanon-based proxy, Hezbollah.84
3.29 A book published by the Iranian Ministry of Foreign Affairs in 2000 states that the
“alliance between Hezbollah and the Islamic Republic of Iran is deep, strategic, and
unbreakable.” 85 Iran’s minister for intelligence, Mahmoud Alavi, also made clear Iran’s
relationship to Hezbollah, stating that “[t]he Americans can’t even take on the pupils of our
revolution, namely Hezbollah and Hamas.” 86 And in November 2014 General Amir Ali
Hajizadeh, head of the IRGC Aerospace Force, explained:
80 UN Econ. & Soc. Council, Comm. On Human Rights, Report of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, 46th Sess., U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, at
55 (Oct. 28, 1994) (US Annex 80).
81 ECOSOC, Situation of human rights in the Islamic Republic of Iran, at 274 (1996) (US Annex 60).
82 S.C. Res. 1373, U.N. Doc. S/RES/1373, ¶ 2(a) (Sept. 28, 2001) (US Annex 81).
83 S.C. Res. 1559, U.N. Doc. S/RES/1559, ¶¶ 2-3 (Sept. 2, 2004) (US Annex 82); S.C. Res. 1701, U.N. Doc.
S/RES/1701, ¶ 1 (Aug. 11, 2006) (US Annex 83).
84 See Levitt, The Origins of Hezbollah (US Annex 23).
85 Iranian Ministry of Foreign Affairs, PLAYERS IN THE MIDDLE EAST PEACE PROCESS (2000) (US Annex 84).
86 Sohrab Ahmari, “About That New ‘Moderate’ Iranian Cabinet…” (US Annex 78).
24
In the past, [Hezbollah] was dependent on us, but today it has progressed
so much that sometimes we use its capabilities. If they [still] need our
support, we will help them. In effect, the IRGC and [Hezbollah] are a
single apparatus joined together, and according to what I know, they have
no shortage of missiles and drones.87
3.30 Hezbollah officials also have publicly confirmed that the group is funded and trained
by Iran. In 1993, a Hezbollah official stated in a televised interview that “the Islamic
Revolutionary Guards help us and train us.”88 Hezbollah Deputy Secretary General Naim
Qassem has boasted that Iran provided his organization with missiles with “pinpoint
accuracy.” 89 And in a June 2016 speech, the leader of Hezbollah, Hassan Nasrallah,
confirmed Iran’s direct and exclusive sponsorship of the group, stating “[w]e are open about
the fact that Hezbollah’s budget, its income, its expenses, everything it eats and drinks, its
weapons and rockets, come from the Islamic Republic of Iran.”90
Section D: Iran Has Violated Nuclear Non-Proliferation, Ballistic Missile, and Arms
Trafficking Obligations
3.31 In addition to its sponsorship of terrorism, Iran engaged in a years-long pattern of
conduct in violation of its obligations under the NPT and the resulting restrictions imposed
under UN Security Council resolutions. This has included Iran’s refusal to abide by
restrictions on its nuclear enrichment-related activities, its development of ballistic missiles,
and arms transfers to terrorist groups.
i. Iran’s Non-Compliance with Its Nuclear Non-Proliferation
Obligations
3.32 Iran’s past failure to adhere to its nuclear obligations is documented in the reports of
the International Atomic Energy Agency (IAEA) and UN Security Council resolutions. After
87 A. Savyon et al., “Iranian IRGC Missile Unit Commanders: We’ve Developed 2,000-km Range Missiles And
Equipped [Hezbollah] With 300-km Range Missiles; Fars News Agency: Israel’s Illusions About Its Natural
Gas Fields Will Be Buried In The Mediterranean,” Middle East Media Research Institute, at 5 (Dec. 3, 2014)
(US Annex 85).
88 Frontline, “Target America,” at 7 (US Annex 57).
89 Nicholas Blanford, “Hezbollah claims ‘pinpoint’ Iranian missiles added to its arsenal,” Christian Science
Monitor (Nov. 23, 2014) (US Annex 86).
90 “In first, Hezbollah confirms all financial support comes from Iran,” Al Arabiya English (June 25, 2016) (US
Annex 87). Nor is Iran’s assistance limited to Hezbollah. Commanders of the Taliban have confirmed that
Iranian officials paid them to attend training courses in Iran devoted to teaching them how to attack NATO
troops and convoys, including with IEDs. “Iranians train Taliban to use roadside bombs: report,” The Nation
(Mar. 21, 2010) (US Annex 88); “Captured Taliban Commander: ‘I received Iranian Training,’”
RadioFreeEurope/RadioLiberty (Aug. 23, 2011) (US Annex 89).
25
an inspection of Iran’s Natanz facility in 2003, the IAEA Director General issued a report
finding that Iran had “failed to meet its obligations under its [NPT] Safeguards Agreement
with respect to the reporting of nuclear material, the subsequent processing and use of that
material and the declaration of facilities where the material was stored and processed.”91
Even though Iran had informed the IAEA that Natanz had not yet received any nuclear
material, the IAEA later reported findings of enriched uranium on centrifuge machines in
Natanz. 92 The IAEA also documented Iran’s failure to declare uranium conversion
experiments in the early 1990s,93 and noted that such failures to meet its NPT Safeguards
Agreement obligations had occurred “in a number of instances over an extended period of
time.”94
3.33 In June 2004, the IAEA board issued a resolution deploring Iran’s lack of
cooperation, noting it had not been “full, timely and proactive,”95 and in September 2005
found Iran in “non-compliance” as defined under the IAEA Statute based on its “many
failures and breaches” of its obligations to comply with its NPT Safeguards Agreement.96 The
next year, the IAEA board voted to refer Iran to the UN Security Council.97
3.34 On July 31, 2006, the UN Security Council adopted resolution 1696, noting that Iran
had “not taken the steps required of it by the IAEA Board of Governors” and demanding that
Iran “suspend all enrichment-related and reprocessing activities, including research and
development.”98 Subsequent IAEA reports and UN Security Council resolutions (1737, 1747,
91 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement in
the Islamic Republic of Iran, IAEA Doc. GOV/2003/40, at 7 (June 6, 2003) (US Annex 90).
92 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement in
the Islamic Republic of Iran, IAEA Doc. GOV/2003/63, at 7 (Aug. 26, 2003) (US Annex 91).
93 Id. at 9.
94 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement in
the Islamic Republic of Iran, IAEA Doc. GOV/2003/75, at 9 (Nov. 10, 2003) (US Annex 92).
95 International Atomic Energy Agency Board of Governors Resolution, Implementation of the NPT Safeguards
Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2004/49, ¶ 2 (June 18, 2004) (US Annex 93).
96 International Atomic Energy Agency Board of Governors Resolution, Implementation of the NPT Safeguards
Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2005/77, ¶ 1 (Sept. 24, 2005) (US Annex 94).
97 International Atomic Energy Agency Board of Governors Resolution, Implementation of the NPT Safeguards
Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2006/14, ¶ 2 (Feb. 4, 2006) (US Annex 95). A
follow-up report, issued on February 27, 2006, the IAEA stated it could not “conclude that there are no
undeclared nuclear materials or activities in Iran.” International Atomic Energy Agency Director General,
Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2006/15, at
11 (Feb. 27, 2006) (US Annex 96).
98 S.C. Res. 1696, U.N. Doc. S/RES/1696 (July 31, 2006) (US Annex 97).
26
and 1803) documented Iran’s continuing refusal to cooperate with the IAEA or to comply
with the demands of the resolutions.99 Throughout this period, Iran continued to install and
test centrifuges, reaching ever-higher levels of enrichment,100 while contentiously asserting
that it would “not retreat one iota in its path to nuclear victory.”101
3.35 The discovery that Iran had constructed an enrichment facility at Qom without
notifying the IAEA until September 2009,102 and of “the possible existence in Iran of past or
current undisclosed activities related to the development of a nuclear payload for a
missile,”103 led the UN Security Council to again emphasize Iran’s failure to cooperate with
the IAEA or to establish “full and sustained suspension of all enrichment-related and
reprocessing activities and heavy water-related projects.”104
3.36 Despite the efforts of the UN Security Council (including the imposition of
sanctions),105 Iran’s cooperation did not improve. In a September 2010 report, the IAEA
noted that Iran had “not provided the necessary cooperation to permit the Agency to confirm
that all nuclear material in Iran is in peaceful activities,” and had barred inspectors from
99 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement in
the Islamic Republic of Iran, IAEA Doc. GOV/2006/53 (Aug. 31, 2006) (US Annex 98); International Atomic
Energy Agency Director General, Implementation of the NPT Safeguards Agreement in the Islamic Republic of
Iran, IAEA Doc. GOV/2006/64 (Nov. 14, 2006) (US Annex 99); S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec.
27, 2006) (US Annex 100); S.C. Res. 1747, U.N. Doc. S/RES/1747 (Mar. 24, 2007) (US Annex 101); S.C. Res.
1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008) (US Annex 102).
100 See International Atomic Energy Agency Director General, Implementation of the NPT Safeguards
Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, IAEA Doc.
GOV/2007/22 (May 23, 2007) (US Annex 103); International Atomic Energy Agency Director General,
Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc. GOV/2007/48,
(Aug. 30, 2007) (US Annex 104); International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions 1737 (2006) and 1747
(2007) in the Islamic Republic of Iran, IAEA Doc. GOV/2007/58 (Nov. 15, 2007) (US Annex 105);
International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement and
Relevant Provisions of Security Council Resolutions 1737 (2006) and 1747 (2007) in the Islamic Republic of
Iran, IAEA Doc. GOV/2008/4 (Feb. 22, 2008) (US Annex 106).
101 “Iran Vows Not to ‘Retreat One Iota’ in Nuclear Pursuit,” CNN (Feb. 22, 2007) (US Annex 107).
102 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement
and Relevant Provisions of Security Council Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835
(2008) in the Islamic Republic of Iran, IAEA Doc. GOV/2009/74, at 2-4, 7 (Nov. 16, 2009) (US Annex 108).
103 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement
and Relevant Provisions of Security Council Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835
(2008) in the Islamic Republic of Iran, IAEA Doc. GOV/2010/10, at 9 (Feb. 18, 2010) (US Annex 109).
104 S.C. Res. 1929, U.N. Doc. S/RES/1929 (June 9, 2010) (US Annex 110).
105 See infra Chapter 4.
27
visiting its facility at Natanz.106 As late as November 2012, the IAEA Director General
reported that the IAEA could not “conclude that all nuclear material in Iran is in peaceful
activities.”107
3.37 It was only in 2015, nine years after the UN Security Council adopted its first
resolution addressed to Iran’s nuclear program, that the JCPOA was concluded to address the
international community’s concerns on that issue. As a result of the JCPOA, the UN Security
Council (and the United States, among others) took action to lift nuclear-related sanctions on
Iran.108
ii. Iran’s Violation of Ballistic Missile and Arms Trafficking
Obligations
3.38 Iran was also engaged in efforts to develop the means to deliver weapons of mass
destruction beyond its borders through the development of ballistic missile capabilities.109 In
2011, for example, the IAEA reported on connections between Iran’s nuclear and missile
programs,110 and a UN-created panel of experts noted that “[t]he Iranian arsenal of ballistic
missiles is widely recognized as one of the largest in the region.”111
3.39 Despite prohibitions established by UN Security Council resolutions, Iran continued
to illicitly procure ballistic missile-related goods and conduct missile launches. For example,
in 2010, the United States sanctioned an Iranian-owned German bank together with the
Export Development Bank of Iran for “enabl[ing] Iran’s missile programs to purchase more
than $3 million of material.” 112 And in March 2011, Singapore reported intercepting a
106 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement
and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, IAEA Doc.
GOV/2010/46, at 10-11 (Sept. 6, 2010) (US Annex 111).
107 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement
and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, IAEA Doc.
GOV/2012/55, at 9, 12 (Nov. 16, 2012) (US Annex 112).
108 S.C. Res. 2231, U.N. Doc. S/RES/2231 (July 20, 2015) (US Annex 122) (providing for the termination of
provisions of resolutions 1737, 1747, 1803, and 1929).
109 See, e.g., IAEA Director General, August 2007 Implementation Report (US Annex 104); IAEA Director
General, February 2008 Implementation Report (US Annex 106).
110 International Atomic Energy Agency Director General, Implementation of the NPT Safeguards Agreement
and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, IAEA Doc.
GOV/2011/65, at 7-8 (Nov. 8, 2011) (US Annex 113).
111 Final Report of the Panel of Experts Established Pursuant to Resolution 1929 (2010), U.N. Doc. S/2012/395,
at 20 (June 4, 2012) (US Annex 114).
112 U.S. Dep’t of the Treasury Press Release, “Treasury Department Targets Iranian-Owned Bank in Germany
Facilitating Iran’s Proliferation Activities” (Sept. 7, 2010) (US Annex 116).
28
shipment of 18 tons of aluminium powder, for which the “most likely end-use is solid
propellant for missiles.”113 Iran also held a series of missile launches, including in August 20
and 25, 2010, October 2010, February 2011, June 2011, July 2012, and February 2015.114
3.40 Iran has also engaged in widespread arms trafficking, supplying terrorist proxies with
weapons, equipment, and training.115 For example, in December 2010, the Chair of a UN
Committee tasked with monitoring Iranian compliance with the relevant UN Security Council
resolutions observed that “it is a matter of grave concern that the apparent pattern of
sanctions violations involving prohibited arms transfers from Iran, first highlighted publicly
by the committee a year ago, is continuing,” citing reports from Nigeria regarding thirteen
shipping containers of illegal arms that originated from Iran, and a report from Italy regarding
a container of high explosives aboard a vessel from Iran bound for Syria.116 The United
Kingdom reported on April 21, 2011, that Afghan forces had intercepted a shipment of
ammunition supplied by Iran to the Taliban.117 Two Iranians were convicted for importing
explosives from Iran in connection with planning terrorist-related activities in Kenya.118 And
Bahrain reported seizing Iranian-produced explosives smuggled by individuals who
113 Final Report of the Panel of Experts Established Pursuant to Resolution 1929 (2010), at 15-16 (May 7,
2011) (US Annex 115).
114 See, e.g., Panel of Experts, 2011 Final Report, at 30 (US Annex 115) (“Iran continues to maintain and
develop a diverse and highly operational arsenal of ballistic missiles.”); Panel of Experts, 2012 Final Report, at
3 (US Annex 114) (“The Iranian ballistic missile programme continues to develop, as demonstrated by
additional launches, their prohibition under resolution 1929 (2010) notwithstanding.”); Final Report of the
Panel of Experts Established Pursuant to Resolution 1929 (2010), U.N. Doc. S/2013/331, at 5 (June 3, 2013)
(US Annex 117) (“The Islamic Republic of Iran has launched ballistic missiles, in violation of its Security
Council obligations . . . .”); Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010), U.N. Doc. S/2014/394, at 3 (June 5, 2014) (US Annex 118) (“The Islamic Republic of Iran has
continued to engage in ballistic missile activities.”); Final Report of the Panel of Experts Established Pursuant
to Resolution 1929 (2010), U.N. Doc. S/2015/401, at 3 (June 1, 2015) (US Annex 119) (“During the current
mandate . . . . the Fajr satellite was launched by a Safir space launch vehicle and the Islamic Republic of Iran’s
annual Great Prophet military exercise reportedly involved the Fateh 110 ballistic missile.”).
115 See, e.g., Panel of Experts, 2011 Final Report, at 2 (US Annex 115) (“Iran’s circumvention of sanctions
across all areas, in particular . . . the transfer of conventional arms and related materiel, is willful and
continuing,” and “IRGC entities and individuals” are “actively involved in the illicit shipment of arms from Iran
to other countries.”); Panel of Experts, 2012 Final Report, at 4 (US Annex 114) (“The Islamic Republic of Iran
has continued to defy the international community through illegal arms shipments.”); Panel of Experts, 2013
Final Report, at 32 (US Annex 117) (“[T]he Islamic Republic of Iran continues to transport concealed and
undocumented shipments of arms and related materiel by sea.”); Panel of Experts, 2014 Final Report, at 9 (US
Annex 118) (Arms transfers “are substantiated by numerous media reports and statements by concerned States
and recipient groups.”); Panel of Experts, 2015 Final Report, at 3 (US Annex 119) (“The Islamic Republic of
Iran’s arms transfers have actively continued.”).
116 UNSC, 6442d Mtg., U.N. Doc. S/PV.6442 (Dec. 10, 2010) (US Annex 120).
117 See Panel of Experts, 2012 Final Report, at 27 (US Annex 114) (noting the shipment of 48 122mm rockets
and 1,000 rounds of ammunition).
118 Panel of Experts, 2014 Final Report, at 17 (US Annex 118)
29
confessed to receiving training from the IRGC.119
iii. Iranian Actions in Violation of Its International Obligations
Continue
3.41 While the JCPOA addressed concerns about Iran’s nuclear program, the UN Security
Council has continued to call on Iran to refrain from undertaking activities related to ballistic
missiles and also has maintained restrictions on the supply, sale, or transfer of certain
ballistic-missile-related items to Iran as well as of arms or related material to and from
Iran.120 There is good reason for this. Iran has continued to launch ballistic missiles, leading
the UN Secretary General in 2016 to express concern and to “call upon the Islamic Republic
of Iran to refrain from conducting such launches.” 121 The United States has sanctioned
individuals and entities responsible for supporting Iran’s ballistic missile program, including
by “obfuscat[ing] the end user of sensitive goods for missile proliferation by using front
companies in third countries to deceive foreign suppliers.”122
3.42 Iran has also continued its policy of arming militants and terrorist entities. For
example, the UN Secretary General expressed “concern[] [over] the reported seizure of an
arms shipment by the United States Navy in the Gulf of Oman in March 2016,” which the
United States concluded had originated from Iran and was bound for Yemen.123 France also
reported an additional intercepted arms shipment, and Israel provided information concerning
the use of commercial flights by the IRGC to transfer arms and related materiel to Hezbollah
119 Id. at 18. This and the other incidents noted are only examples of Iran’s arms trafficking, which also includes
shipments to Yemen. Following the interception of arms on board a vessel bound for Yemen in 2013, analysis
“suggest[ed] that the Islamic Republic of Iran was the origin of these shipments, and that the intended recipients
were the Houthis in Yemen.” Panel of Experts, 2015 Final Report, at 14 (US Annex 119). Other such shipments
bound for Yemen included, among others, an Iranian vessel that unloaded crates of weapons on to Yemeni boats
in April 2009; an Iranian fishing vessel seized in February 2011 carrying 900 Iranian-made anti-tank and antihelicopter
rockets; and an Iranian vessel carrying more than 180 tons of weapons and military equipment that
reportedly arrived in Yemen in March 2015. Id. Annex 1. Nor was Iran only exporting weapons: in December
2009, 35 tons of North Korean weapons were intercepted aboard a transport aircraft bound for Iran. Daniel
Michaels & Margaret Coker, “Seized Arms Iran-bound, Report Says,” Wall St. J. Asia (Dec. 21, 2009) (US
Annex 121).
120 S.C. Res. 2231, Annex B, ¶¶ 3-5, 6(b) (US Annex 122).
121 UN Secretary General, Report on the Implementation of Security Council Resolution 2231 (2015), U.N. Doc.
S/2016/589, at 3 (July 12, 2016) (US Annex 123).
122 U.S. Dep’t of the Treasury Press Release, “Treasury Sanctions Those Involved in Ballistic Missile
Procurement for Iran” (Jan. 17, 2016) (US Annex 124); see also U.S. Dep’t of the Treasury Press Release,
“Treasury Sanctions Supporters of Iran’s Ballistic Missile Program and Terrorism-Designated Mahan Air”
(Mar. 24, 2016) (US Annex 126).
123 UN Secretary General, First Implementation Report, at 3 (US Annex 123).
30
in contravention of UN Security Council resolution 2231.124 The UN Secretary General also
expressed concern as to the statement of Hezbollah’s Secretary-General that Iran had
supplied that organization with weapons and missiles, noting that this may have been
contrary to UN Security Council resolutions.125
* * *
3.43 The facts set forth above and the extensive documentary evidence supporting them, as
annexed to this Memorial, establish an unmistakeable pattern of violent and destabilizing
conduct on the part of the Iranian government that has repeatedly put in jeopardy the peace
and security of the United States and the broader international community. As set forth in
detail in Part II of this Memorial, the admissibility of Iran’s application – raising claims as to
the measures adopted to address this conduct – and the Court’s jurisdiction to hear those
claims in this case must be assessed in light of this factual record.
THE UNITED STATES HAS CHAPTER 4: TAKEN MEASURES TO ADDRESS IRAN’S
SPONSORSHIP OF TERRORISM AND OTHER DESTABILIZING ACTS
4.1 The fractured and unfriendly relations that have existed between the United States and
Iran since 1979 have been defined in large part by Iran’s illicit sponsorship of terrorism and
other internationally destabilizing conduct described above. Actions on both sides within this
context have inevitably altered the commercial relationship between the two countries. For its
part, the United States has acted – consistent with applicable UN Security Council
resolutions, and often in alignment with the actions of other States and multilateral entities –
in a measured and peaceful way through sanctions and other actions aimed at counteracting
and deterring Iran from these destabilizing activities, including by blocking property of the
Government of Iran and certain Iranian entities, and by allowing U.S. victims of terrorism to
pursue litigation against Iran and Iranian entities for their injuries. And the Iranian
government, even beyond its violent and destabilizing behavior, has taken measures targeting
the United States and its nationals and companies that have further constricted economic
relations. In sum, the actions of both States have led to a dramatic contraction in the overall
commercial relationship between them, rendering it a mere shadow of what it was prior to
1979.
124 UN Secretary-General, Second Report on the Implementation of Security Council Resolution 2231 (2015),
U.N. Doc. S/2016/1136, at 2, 7 (Dec. 30, 2016) (US Annex 125).
125 Id. at 6-7.
31
4.2 This Chapter proceeds in two parts. Section A addresses the U.S. measures at issue in
this case, as well as others, both U.S. and international, that provide important context.
Section B explains the consequences of the Parties’ unfriendly relations – including by
reference to measures Iran has taken against the United States – on the U.S.-Iranian
relationship, and particularly on the two States’ commercial relationship.
Section A: The United States and Others Have Taken Measures to Combat Iran’s
Unlawful Conduct
4.3 In an effort to counteract and deter Iran’s sponsorship of terrorism and other
internationally destabilizing conduct described above (e.g., with respect to nuclear nonproliferation,
ballistic missiles, and arms trafficking), the United States has taken a range of
measured legislative and executive actions over the years. In January 1984, only months after
the Beirut Marine barracks bombing, the United States designated Iran as a State sponsor of
terrorism based on the finding that Iran had “repeatedly provided support for acts of
international terrorism.”126 In 1987, President Reagan banned the importation of most Iranian
goods and services into the United States, including oil, due to Iran’s “active[] support[] [for]
terrorism as an instrument of state policy,” and to prevent such imports from “contribut[ing]
financial support to terrorism.”127 In 1995, among other things, President Clinton barred all
new U.S. investment in Iran and broadly prohibited exports to Iran.128
4.4 In 1996, the U.S. Congress amended the Foreign Sovereign Immunities Act of 1976
(FSIA) in relation to States, including Iran, that are designated as sponsors of terrorism.129
The new law provided that such States would not enjoy jurisdictional immunity in certain
126 See Determination Pursuant to Section 6(i) of the Export Administration Act of 1979 – Iran, 49 Fed. Reg.
2836 (Jan. 23, 1984) (US Annex 127). Iran has remained a designated State sponsor of terrorism since 1984.
U.S. Dep’t of State, State Sponsors of Terrorism, https://www.state.gov/j/ct/list/c14151.htm (last visited Apr.
14, 2017) (US Annex 128). Two other States are currently designated as sponsors of terrorism: Syria and Sudan.
Id.
127 Executive Order 12613, 52 Fed. Reg. 41940 (Oct. 30, 1987) (US Annex 129). As the Court has noted, the
sanctions imposed in 1987 suspended all imports of crude oil into the United States from Iran, which was an
essential aspect of the U.S.-Iranian commercial relationship at the time. Oil Platforms (Iran v. United States),
2003 I.C.J. 161, 207, ¶ 98 (Judgment of Nov. 6).
128 See Executive Order 12957, 60 Fed. Reg. 14615 (Mar. 15, 1995) (US Annex 130); Executive Order 12959,
60 Fed. Reg. 24757 (May 6, 1995) (US Annex 131). Executive Order 13059 later revoked Executive Order
12613, noted above, with respect to transactions occurring after Executive Order 13059’s effective date and
consolidated the provisions of Executive Orders 12957 and 12959. Executive Order 13059, 62 Fed. Reg. 44531
(Aug. 19, 1997) (US Annex 132).
129 Antiterrorism and Effective Death Penalty Act of 1996, §221, codified at 28 U.S.C. §§ 1605 et seq. (IM
Annex 10).
32
cases involving acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support for such acts, and it provided exceptions to execution immunity
applicable in such cases.130 (Further amendments to these provisions were made in 2008,
including by providing that certain property in the United States of agencies or
instrumentalities of State sponsors of terrorism would be available for execution upon
judgments entered against such States.131) The ability to bring actions under this exception to
jurisdictional immunity is restricted to U.S. nationals, U.S. military personnel, employees and
contractors of the U.S. government, and their estates.132
4.5 On September 23, 2001, only days after the attacks of September 11, President
George W. Bush issued Executive Order 13224 targeting persons who commit, threaten to
commit, or support terrorism.133 Among other things, the order blocked the property and
interests in property of specific listed persons, as well as persons later determined to have
committed acts of terrorism; prohibited United States persons from engaging in transactions
or dealings with such persons; and afforded greater authority to target those who provide
financial and other support for terrorist acts.134 Five days later, the UN Security Council
issued resolution 1373, which, pursuant to Chapter VII of the UN Charter, imposed an
obligation on all member States to:
1. (a) Prevent and suppress the financing of terrorist acts; . . .
2. (a) Refrain from providing any form of support, active or passive, to
entities or persons involved in terrorist acts, including by suppressing
recruitment of members of terrorist groups and eliminating the supply of
weapons to terrorists; . . .
(c) Deny safe haven to those who finance, plan, support, or commit
terrorist acts, or provide safe havens; [and]
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from
using their respective territories for those purposes against other States or
their citizens[.]135
130 Id.
131 National Defense Authorization Act for Fiscal Year 2008, § 1083 (IM Annex 15).
132 Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A(2)(A)(ii) (2017) (US Annex 133).
133 Executive Order 13224, 66 Fed. Reg. 49077 (Sept. 23, 2001) (US Annex 134).
134 Id.
135 S.C. Res. 1373, ¶¶ 1-2 (US Annex 81). The United States later reported to the UN Security Council on its
actions taken to combat terrorism and comply with resolution 1373, including certain actions taken under
33
4.6 The next year, the U.S. Congress passed the Terrorism Risk Insurance Act of 2002
(TRIA) to further address foreign States’ support for terrorism. 136 Section 201 of TRIA
provides that persons obtaining a judgment against a “terrorist party” (defined to include,
among others, designated State sponsors of terrorism) on a claim “based upon an act of
terrorism,” or for which that party is not immune under the terrorism exception to immunity
in the FSIA, may execute upon, or attach in aid of execution, the blocked assets of the
terrorist party.137 In adopting TRIA, Congress stated that Section 201 was intended “to deal
comprehensively with the problem of enforcement of judgments rendered on behalf of
victims of terrorism.”138
4.7 As noted above, Iran’s years-long refusal to cooperate with the IAEA resulted in a
host of UN Security Council resolutions to address Iran’s nuclear enrichment-related and
reprocessing activities, as well as its efforts to obtain ballistic missiles capable of delivering a
nuclear weapon.139 Resolution 1696, adopted on July 31, 2006, demanded that Iran suspend
its nuclear enrichment program.140 When Iran refused, the UN Security Council adopted
resolution 1737 in December 2006, imposing (i) an obligation on Iran to suspend all
enrichment-related activities and heavy water-related projects; (ii) sanctions requiring States
to prevent the supply, sale, and transfer of items, materials, equipment, goods, and
technology to Iran that would contribute to enrichment-related, reprocessing, or heavy waterrelated
activities or to the development of nuclear weapon delivery systems; and (iii) a freeze
on the assets of Iranian organizations and individuals involved with Iran’s nuclear
programs.141 Subsequently, Iran’s continued non-compliance resulted in the imposition of
Executive Order 13224. See, e.g., UN Security Council, Counter-Terrorism Comm., Report on the
Implementation of Resolution 1373 (2001) by the United States of America, U.N. Doc. S/2001/1220, at 4
(Dec. 19, 2001) (US Annex 135); UN Security Council, Counter-Terrorism Comm., Response of the United
States to the Counter-Terrorism Committee on Security Council Resolution 1373, U.N. Doc. S/2006/69, at 4-5
(Jan. 26, 2006) (US Annex 136) (“Taken together, the [Immigration and Nationality Act] and EO 13224
comprise a comprehensive regime providing for criminal prosecution and economic sanctions against terrorists
and their supporters, both foreign and domestic.”).
136 Terrorism Risk Insurance Act of 2002, § 201, codified at 28 U.S.C. § 1610 note (IM Annex 13).
137 Id.
138 Conference Report on the Terrorism Risk Protection Act, H.R. Rep. No. 107-779, at 27 (2002) (US Annex
137)
139 See supra Chapter 3, Sec. D.
140 S.C. Res. 1696 (US Annex 97) (calling on States to “prevent the transfer of any items, materials, goods and
technology that could contribute to Iran’s . . . ballistic missile programmes”).
141 S.C. Res. 1737 (US Annex 100) (determining to “adopt[] appropriate measures to . . . constrain Iran’s
development of sensitive technologies in support of its nuclear and missile programmes,” and freezing assets of
34
further sanctions and restrictions in UN Security Council resolutions 1747 (2007), 1803
(2008), and 1929 (2010) 142 directed at a wide range of activities, including nuclear
proliferation, ballistic missile development, and arms trafficking.143
4.8 The United States and the EU took a series of actions against Iran’s nuclear and
ballistic missile programs in line with these UN Security Council resolutions. The EU
adopted escalating sanctions targeting, among other things, Iran’s energy and financial
sectors.144 These complemented U.S. measures, such as the Comprehensive Iran Sanctions,
Accountability and Divestment Act of 2010 (CISADA), which, among other things, imposed
sanctions on the sale to Iran of refined petroleum products (such as gasoline) exceeding a
certain value and on Iranian financial institutions whose property was blocked by the United
States in connection with Iran’s proliferation of weapons of mass destruction or support for
international terrorism.145
4.9 In the same general time period, the multilateral Financial Action Task Force (FATF)
issued a series of warnings concerning the terrorism-finance and money-laundering risks
posed by Iran. The FATF is an inter-governmental body with representatives from many
persons and entities involved in Iran’s ballistic missile programme).
142 S.C. Res. 1747 (US Annex 101) (prohibiting the importation by Iran of any missiles or missile systems, and
freezing assets of additional persons and entities involved in ballistic missile activities); S.C. Res. 1803 (US
Annex 102) (widening the scope of restrictive measures taken in S.C. Res. 1737 and 1747); S.C. Res. 1929 (US
Annex 110) (prohibiting Iran from “undertak[ing] any activity related to ballistic missiles capable of delivering
nuclear weapons, including launches using ballistic missile technology”).
143 For example, resolution 1737 required States to prevent the supply, sale, or transfer of certain listed ballistic
missile-related items, materials, equipment, goods and technology to Iran. S.C. Res. 1737, OP3 (US Annex
100). Resolution 1747 was directed at Iran’s persistent arms trafficking, including to terrorist organizations,
providing that “Iran shall not supply, sell or transfer directly or indirectly from its territory or by its nationals . . .
any arms or related material.” S.C. Res. 1747, ¶ 5 (US Annex 101). Resolution 1929 banned Iran from investing
in missile technology abroad and provided that Iran “shall not undertake any activity related to ballistic missiles
capable of delivering nuclear weapons, including launches using ballistic missile technology.” Resolution 1929
also imposed an arms embargo on Iran requiring States to prevent the supply, sale or transfer to Iran of any
battle tanks, armoured combat vehicles, large caliber artillery systems, attack helicopters, warships, missiles, or
missile systems and related materiel. S.C. Res. 1929 (US Annex 110).
144 See Council Common Position No. 2007/140/CFSP of 27 February 2007, 2007 O.J. (L 61) 49 (US Annex
138) (implementing UN Security Council resolution 1737); Council Common Position No. 2007/246/CFSP of
23 April 2007, 2007 O.J. (L 106) 67 (US Annex 139) (implementing UN Security Council resolution 1747);
Council Common Position No. 2008/652/CFSP of 7 August 2008, 2008 O.J. (L 213) 58 (US Annex 140)
(implementing UN Security Council resolution 1803); Council Decision No. 2010/413/CFSP of 26 July 2010,
2010 O.J. (L 195) 39 (US Annex 141) (implementing UN Security Council resolution 1929); see also Council
Decision No. 2012/35/CFSP of 23 January 2012, 2012 O.J. (L 19) 22 (US Annex 142); Council Decision No.
2012/152/CFSP of 15 March 2012, 2012 O.J. (L 77) 18 (US Annex 143); Council Decision No. 2012/635/CFSP
of 15 October 2012, 2012 O.J. (L 282) 58 (US Annex 144).
145 Comprehensive Iran Sanctions, Accountability and Divestment Act § 102(a)(3), Pub. L. No. 111-195 (July 1,
2010), 124 Stat. 1312 (hereinafter “CISADA”) (US Annex 198) (amending section 5(a) of the Iran Sanctions
Act); id. § 104(c).
35
regions of the world (including the United States), whose purpose is to set standards and
promote the effective implementation of legal, regulatory, and operational measures for
combating money laundering, terrorist financing, and related threats to the integrity of the
international financial system. With respect to Iran, in 2007 the FATF instructed financial
institutions to use “enhanced due diligence” in dealings with Iran given Iran’s failure to
implement a comprehensive anti-money laundering or anti-terrorist financing regime, which
represented “a significant vulnerability within the international financial system.”146 In 2009,
the FATF began urging States to apply “[e]ffective counter-measures to protect their financial
sectors from money laundering and financing of terrorism [] risks emanating from Iran.”147
4.10 Based on similar concerns, the United States took progressive steps to respond to
Iran’s support for terrorism. For example, in 2007 the United States designated the IRGC-QF
under Executive Order 13224 (noted above) for providing weapons and financial support to
the Taliban and other designated terrorist organizations, and also designated an Iranian bank,
Bank Melli, for, among other things, sending at least $100 million to the IRGC-QF and
facilitating purchases of sensitive materials for Iran’s nuclear and missile programs.148 The
UN, the EU, Japan, South Korea, and other States likewise targeted the IRGC and its
affiliates for sanctions because of the organization’s illicit activities.149
4.11 The U.S. Treasury Department also published a finding in 2011 that Iran was a
jurisdiction of primary money laundering concern.150 That finding was based on “a growing
body of public information about [Iranian banks’] illicit and deceptive conduct designed to
146 Financial Action Task Force Statement on Iran (Oct. 11, 2007) (US Annex 145).
147 Financial Action Task Force Statement on Iran (Feb. 25, 2009) (US Annex 146).
148 U.S. Dep’t of the Treasury, “Fact Sheet: Designation of Iranian Entities and Individuals for Proliferation
Activities and Support for Terrorism” (Oct. 25, 2007) (US Annex 147); see also U.S. Dep’t of the Treasury,
“Fact Sheet: Treasury Strengthens Preventive Measures Against Iran” (Nov. 6, 2008) (US Annex 148). The
United States in August 2010 designated other individuals and entities to target Iran’s support for terrorism and
terrorist organizations, including Hezbollah, Hamas, Palestinian Islamic Jihad, the Popular Front for the
Liberation of Palestine-General Command, and the Taliban. U.S. Dep’t of the Treasury, “Fact Sheet: U.S.
Treasury Department Targets Iran’s Support for Terrorism; Treasury Announces New Sanctions Against Iran’s
Islamic Revolutionary Guard Corps-Qods Force Leadership” (Aug. 3, 2010) (US Annex 149). Subsequently, the
United States designated other Iranian entities for providing material support for terrorism, including weapons to
Hezbollah on behalf of the IRGC.” U.S. Dep’t of the Treasury, “Fact Sheet: Treasury Designates Iranian
Entities Tied to the IRGC and IRISL” (Dec. 21, 2010) (US Annex 150).
149 U.S. Dep’t of the Treasury, “Fact Sheet: Treasury Sanctions Major Iranian Commercial Entities,” at 2 (June
23, 2011) (US Annex 151).
150 Finding that the Islamic Republic of Iran is a Jurisdiction of Primary Money Laundering Concern, 76 Fed.
Reg. 72756, 72756-63 (Nov. 18, 2011) (US Annex 152); Financial Crimes Enforcement Network; Amendment
to the Bank Secrecy Act Regulations – Imposition of Special Measure Against the Islamic Republic of Iran as a
Jurisdiction of Primary Money Laundering Concern, 76 Fed. Reg. 72878 (Nov. 28, 2011) (US Annex 153).
36
facilitate the Iranian government’s support for terrorism and its pursuit of nuclear and
ballistic missile capabilities.” 151 Specific examples cited in the finding include Bank
Saderat’s transfer of $50 million from the Central Bank of Iran through its subsidiary in
London to its branch in Beirut for the benefit of Hezbollah fronts in Lebanon that support acts
of violence; Ansar Bank and Mehr Bank providing financial services to the IRGC; Bank
Melli employing deceptive banking practices to obscure its involvement when handling
financial transactions on behalf of the IRGC; Iran permitting al-Qaida to funnel funds and
operatives through its territory; and the IRGC-QF providing as much as $200 million in
financial support for Hezbollah per year, and providing the Taliban with weapons, funding,
logistics, and training in support of anti-U.S. and anti-coalition activity.152
4.12 In 2012, in the wake of this U.S. Treasury Department finding and following years of
evasion by Iran and its entities (particularly through the use of Iranian financial institutions)
of sanctions aimed at, among other illicit activities, Iranian proliferation, arms trafficking,
and terrorist financing, President Obama issued Executive Order 13599. That Order blocks all
property and interests in property of the Government of Iran, including the Central Bank of
Iran, and of Iranian financial institutions, where such assets are subject to U.S. jurisdiction.153
4.13 That same year, Congress passed the Iran Threat Reduction and Syria Human Rights
Act of 2012 to further address Iran’s support for terrorism, its pursuit of nuclear weapons and
related delivery systems (e.g., ballistic missiles), and other threatening activities.154 Among
other things, the law imposed sanctions targeting Iran and Iranian entities involved in
terrorism and proliferation activities. 155 It also addressed issues relating to the Peterson
151 76 Fed. Reg. at 72757 (US Annex 152).
152 76 Fed. Reg. at 72758, 72760-61 (US Annex 152).
153 E.O. 13599, 77 Fed. Reg. 6659 (February 5, 2012) (IM Annex 22). For further discussion of Executive Order
13599, see infra Chapter 7. Executive Order 13599 implemented the sanctions required by Section 1245(c) of
the 2012 National Defense Authorization Act. See National Defense Authorization Act for Fiscal Year 2012,
Section 1245(c), Pub. L. 112-81, 125 Stat. 1647 (IM Annex 17). That section also expressed Congress’s
concerns regarding Iran’s continued support for terrorism, its proliferation activity, and its use of deceptive
financial practices to evade sanctions. See id. Sections 1245(a) and (b).
154 See generally Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. 112-158, 126 Stat. 1214,
22 U.S.C. § 8701 (US Annex 154).
155 See, e.g., id. § 203 (expanding sanctions on persons exporting goods or technology that “would contribute
materially to the ability of Iran to (I) acquire or develop . . . nuclear weapons or related technologies; or (II)
acquire or develop destabilizing numbers and types of advanced conventional weapons”), § 208 (noting that
Iran’s energy sector “remains a zone of proliferation concern since the Government of Iran continues to divert
substantial revenues derived from sales of petroleum resources to finance its illicit nuclear and missile
activities” and calling on the President to impose sanctions to address that threat), § 211 (imposing sanctions on
the provision of vessels or shipping services to transport goods “that could materially contribute to the activities
37
enforcement proceeding.156
4.14 On July 14, 2015, the JCPOA – a multilateral arrangement to address the international
community’s concerns with Iran’s nuclear program – was concluded. UN Security Council
resolution 2231 endorsed the JCPOA and provided for the termination of the provisions of
resolutions 1737, 1747, 1803, and 1929 concerning Iran’s nuclear program, but maintained
certain non-nuclear provisions, including calling upon Iran to refrain from undertaking any
activity related to ballistic missiles designed to be capable of delivering nuclear weapons.157
Resolution 2231 also imposed a requirement largely identical to that contained in resolution
1747 with regard to arms trafficking, requiring States to, among other things, “[t]ake the
necessary measures to prevent, except as decided otherwise by the UN Security Council in
advance on a case-by-case basis, the supply, sale, or transfer of arms or related material from
Iran.” 158 U.S., UN, and other multilateral (e.g., FATF) measures and recommendations
related to Iran’s ballistic missile program, arms trafficking, and terrorist financing remain in
place to this day.159
of the Government of Iran with respect to the proliferation of weapons of mass destruction or support for acts of
international terrorism”), § 217 (providing for the continuation of sanctions set out in Executive Order 13599
until the President makes certain certifications).
156 The law specified that, provided the court made certain factual findings relating to assets at issue in the
Peterson enforcement proceeding, those assets would be subject to execution or attachment to satisfy
compensatory damages portions of terrorism-related judgments entered against Iran. Id. at § 502, codified at 22
U.S.C. § 8772. Bank Markazi raised various arguments in opposition to attachment of the funds, including by
challenging the constitutionality of § 8722 – a challenge the U.S. Supreme Court rejected in April 2016. See
Bank Markazi, aka Cent. Bank of Iran v. Peterson, et al., 136 S.Ct. 1310 (2016) (IM Annex 66).
Notably, despite arguing throughout its Memorial that the treatment of Bank Markazi and its funds in the
Peterson enforcement proceeding violated various articles of the Treaty and putting in issue arguments raised in
those proceedings (see, e.g., Iran’s Memorial, ¶¶ 2.43, 5.12), Iran did not annex to its Memorial any of the
pleadings from the District Court proceedings that allegedly support its position. Those filings were sealed
subject to a “Protective Order,” based on protections that U.S. law provides to certain banking and commercial
information. Although Iran was a defendant in that proceeding, the U.S. government was not a party and the
District Court has not previously granted the U.S. government access to the sealed pleadings. On April 20, 2017,
the Court denied the United States’ request for Iran to be ordered to produce the documents in advance of the
United States’ preliminary objections filing. The United States elaborates further below on the relevance of
these undisclosed documents to the United States’ preliminary objections.
157 S.C. Res. 2231, Annex B, ¶ 3 (US Annex 122).
158 Id. Annex B, ¶ 6(b). The restriction is to continue until October 2020, or until the date on which the IAEA
submits its Broader Conclusion report, whichever is earlier. Other restrictions also effectively remained in place
under Resolution 2231, including various restrictions on the supply, sale, and transfer of nuclear-related
materials.
159 Recently, FATF suspended counter-measures for a period of 12 months (ending June 2017) to monitor Iran’s
progress in implementing an action plan to address deficiencies in its anti-money laundering provisions and
actions to combat the financing of terrorism. FATF made clear, however, that until Iran implemented the
necessary measures to address deficiencies in its regulatory system, it would “remain concerned with the
terrorist financing risk emanating from Iran and the threat this poses to the international financial system.” The
38
Section B: The Parties No Longer Maintain Normal, Ongoing Commercial Relations
4.15 Concurrent with the U.S. measures discussed above, the Iranian government has
enacted measures deterring U.S. nationals or companies from engaging in commerce in or
with Iran. For example, 1989 legislation referencing the so-called “terrorist activities” of the
United States government requires the Iranian president to arrest and punish U.S. citizens.160
In 2015, Iran enacted an import ban on U.S. consumer goods, following Ayatollah
Khamenei’s instruction “not to allow import of US consumer goods which symbolize
presence of the USA in the country.”161 A 2016 law directs the Government of Iran to seek
compensation and restitution from the United States for its alleged role in wars and other
purported interferences in Iranian internal affairs.162 Iran has also implemented legislation
allowing Iranian nationals to file claims against a foreign State when that State has
purportedly violated Iran’s immunity.163 The text of that law does not name the United States,
FATF also continues to advise that financial institutions apply “enhanced due diligence” in their dealings with
Iranian companies and individuals. Financial Action Task Force Statement on Iran (Feb. 24, 2017) (US Annex
155). The United States has also made clear that its sanctions relating to ballistic missiles and support for
terrorism would remain in place following implementation of the JCPOA. E.g., U.S. Dep’t of the Treasury Press
Release, “Written Testimony of Adam J. Szubin, Acting Under Secretary of Treasury for Terrorism and
Financial Intelligence, before the U.S. Senate Committee on Banking, Housing, and Urban Affairs” (Aug. 5,
2015) (US Annex 156); U.S. Dep’t of the Treasury Press Release, “Treasury Sanctions Supporters of Iran’s
Ballistic Missile Program and Iran’s Revolutionary Guard Corps” (Feb. 3, 2017) (US Annex 157).
160 RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Law
Intensifying [Countermeasures] Against the United States Government’s Terrorist Activities (1989), No. 13024,
p. 534 (US Annex 159) (referencing the crimes of kidnapping and conspiring against the lives of Iranian
citizens).
161 “Iran bans import of consumer goods from USA,” BBC (Nov 5, 2015) (US Annex 158).
162 Information Site of the Government of the Islamic Republic of Iran, Law Requiring the Government of Iran
to Pursue Damages Resulting from the United States’ Activities and Crimes (2016), pub. June 6, 2016 (US
Annex 163).
163 RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Law
of Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil Claims against Foreign
Governments (2012), No. 19566, p. 769 (US Annex 162) (reenacting, with a few amendments, legislation
originally enacted in 1999 and amended in 2000); see also RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE
OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Law of Jurisdiction of the Justice Dep’t of the Islamic
Republic of Iran for Hearing Civil Claims against Foreign Governments (1999), No. 15950, p. 473 (US Annex
160); RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN],
Law Amending the Law of Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil
Claims against Foreign Governments (2000), No. 16284, p. 1423 (US Annex 161); RUZNAMEHI RASMI JUMHURI
ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Executive Regulations of the Law of
Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil Claims Against Foreign
Governments Enacted in the Year 1999, No. 16905, p. 395 (US Annex 164); RUZNAMEHI RASMI JUMHURI
ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Amendment to the Executive
Regulations of the Law of Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil
Claims Against Foreign Governments Enacted in the Year 1999, No. 16213, p. 1099 (US Annex 165);
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN],
Executive Regulations of the Law of Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for Hearing
Civil Claims Against Foreign Governments (2012), No. 20050, p. 1369 (US Annex 166).
39
but the parliamentary debate on the bill – featuring chants of “Death to America” – makes
clear its purpose and intended target.164 Since its enactment, a large number of cases have
been initiated by Iranian nationals, resulting in significant judgments against the United
States. 165 In short, Iran does not welcome Americans or American firms, and in fact it
actively seeks to deter any such business with Iran.166
4.16 The measures taken by both States are reflective of the rupture in relations that
followed the 1979 attack on the U.S. Embassy in Tehran and the ensuing hostage crisis. The
result has been a fundamental breakdown in the commercial, trade, and investment
relationship that existed between them prior to 1979, and which the Treaty of Amity was
intended to protect and promote. Neither government has taken steps to encourage commerce
between them and their nationals for decades. On the contrary, both countries have taken
measures expressly intended to deter it.
THE APPLICABLE CHAPTER 5: LEGAL FRAMEWORK
5.1 This Chapter sets forth the law that applies in assessing the United States’ preliminary
objections and the law governing Iran’s claims in this case. The United States brings its
objections under Article 79(1) of the Rules of Court, which provides that the respondent may
request a decision on preliminary objections “before any further proceedings on the merits,”
and that such objections may go to the admissibility of the application, the jurisdiction of the
Court, or any other matter requiring resolution prior to the merits.167
5.2 Each of the United States’ objections is exclusively preliminary in character. These
164 RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN],
Parliamentary Debates, Public Session No. 42, pp. 28-30 (Nov. 1, 2000) (US Annex 168); see also RUZNAMEHI
RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Parliamentary
Debates, Public Session No. 323, at pp. 32-33 (Nov. 8, 1999) (US Annex 167) (deputy stating that “fortunately
this bill has been brought before the Islamic Consultative Assembly around November 3 [Aban 13], which is the
day of Death to America.”).
165 See, e.g., Shafiei v. Government of the United States of America, Case No. 987/3/80, Judgment (Tehran
Public Court, Div. 3, Mar. 31, 2003) (US Annex 170) (basing jurisdiction on Iran’s 1999 immunity-stripping
law, and ordering damages in favor of plaintiffs – the survivors of an Iranian deputy commander allegedly killed
in 1987 in an engagement with U.S. armed forces in the Persian Gulf – amounting to 220 billion rials in
compensatory damages, 2 trillion rials [“equivalent to 329 kg of gold”] in punitive damages, 44.4 billion rials as
“procedure cost,” and 221 billion rials as “attorney’s fee”).
166 Iran continues to impose measures on American nationals and companies, even during the pendency of these
proceedings. “In reciprocal act, Iran sanctions 15 American companies,” Iran News Agency (Mar. 26, 2017)
(US Annex 171).
167 Rules, art. 79(1).
40
are not circumstances in which the Court lacks the facts necessary to decide the objections, or
where resolving the objections would involve adjudication of the merits of the dispute.168
Rather, the United States’ objections can be decided without prejudging issues that relate to
the merits of Iran’s claims, and the purpose and effect of the objections is to “to prevent, in
limine, any consideration of the case on the merits.”169
5.3 The Court has broad inherent power to decline to hear a case where doing so would
protect the integrity of the Court’s judicial function. 170 As the Court explained in the
Northern Cameroons case, “[t]here are inherent limitations on the exercise of the judicial
function which the Court, as a court of justice, can never ignore.”171 Thus, as discussed in
greater detail in Chapter 6, the Court has the power and ample grounds to dismiss all of Iran’s
claims as inadmissible at the threshold of the case.
5.4 Further, as explained below and in Chapters 7-9, the Court should dismiss for lack of
jurisdiction ratione materiae important elements of Iran’s claims in this case, which concern
matters that are plainly not governed by the Treaty. This is because the exclusive basis for the
Court’s jurisdiction in this case is the compromissory clause of the Treaty. Yet, Iran wrongly
grounds important aspects of its claims in customary international law, or seeks redress for
measures that either are not governed by the Treaty articles that Iran invokes or fall within
explicit exclusions set out in the text of the Treaty itself.172 Iran claims that its distorted
reading of the Treaty is supported by the general proposition that treaties may “be interpreted
with reference to (and applied in consideration of) relevant rules of customary international
168 Territorial and Maritime Dispute (Nicaragua v. Colombia), 2007 I.C.J. 832, 852, ¶ 51 (Preliminary
Objections Judgment of Dec. 13); Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Preliminary Objection Judgment, ¶ 52 (I.C.J., Sept. 25, 2015); Certain German Interests in Polish Upper Silesia
(Germany v. Poland), Preliminary Objections, 1925 P.C.I.J. (ser. A) No. 6, at 15 (Aug. 25).
169 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libya v. United States), 1998 I.C.J. 115, 131-132, ¶ 46 (Preliminary Objections Judgment
of Feb. 27) (citing Panevezys-Saldutiskis Railway (Estonia v. Lithuania), 1939 P.C.I.J. (ser. A/B) No. 76, at 16
(Feb. 28)).
170 See, e.g., Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), 1932 P.C.I.J. (ser. A/B)
No. 46, at 161-62 (June 7) (declining to adjudicate claims where the Parties sought to subject the Court’s
judgment to their approval).
171 Northern Cameroons (Cameroon v. United Kingdom), 1963 I.C.J. 15, 29 (Dec. 2) (declining to decide a case
where the question was inoperative or moot). See also infra Section 6.A.iii.
172 Iran’s “Applicable Law” section of its Memorial contains a dozen pages detailing “Other Sources of
International Law” that it claims the Court may apply – twice as many pages as Iran devotes to its section on
“The Treaty of Amity.” See Iran’s Memorial, Chapters III.1 and III.2. This notably lopsided distribution is
symptomatic of the fundamental lack of connection between Iran’s claims and the provisions of this commercial
treaty.
41
law,”173 but Iran makes no effort to conduct a proper treaty interpretation analysis that would
establish jurisdiction over its claims. That is presumably because a straightforward
application of the well-established rules of treaty interpretation makes clear that a number of
Iran’s claims fall outside the scope of the Treaty.
5.5 Where, as here, jurisdiction is founded only on a treaty’s compromissory clause
giving the Court jurisdiction over the treaty’s “interpretation and application,” the Court is
empowered only to apply the treaty and not rules of customary international law that exist
apart from the treaty. 174 To do otherwise would be to exceed the basis of the Court’s
jurisdiction, which is the consent of the Parties as expressed within the context of the
treaty.175 A treaty, particularly a treaty such as the Treaty of Amity that governs only a
specific, narrow set of subject matters, cannot be used as a convenient doorway through
which the entire corpus of international law may enter.
5.6 The Court has explained that its jurisdictional inquiry requires the Court to interpret
the relevant provisions of the Treaty at the preliminary objections phase of the case.176 In Oil
Platforms, the Court rejected Iran’s claim that it need only demonstrate, at the jurisdictional
stage, a “bona fide question” as to whether “the Treaty does, or does not, apply to the conduct
of the Respondent which is the subject of the complaint.” 177 Rather, on a challenge to
jurisdiction ratione materiae, the Court made clear that it must “ascertain whether the
173 Iran’s Memorial, ¶ 3.19.
174 See Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), 2006 I.C.J. 6, 32, ¶ 65 (Feb. 3) (“As it recalled in its Order of 10 July 2002, the Court has
jurisdiction in respect of States only to the extent that they have consented thereto . . . . When a compromissory
clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the
treaty who are bound by that clause and within the limits set out therein[.]).
175 Id.; Mutual Assistance in Criminal Matters (Djibouti v. France), 2008 I.C.J. 177, 200-201 & 203, ¶¶ 48 & 60
(June 4); see also Aerial Incident of 10 August 1999 (Pakistan v. India), 2000 I.C.J. 12, 45-46 (June 21)
(Separate Opinion of Judge Koroma) (“[T]he issue whether there is a conflict of legal rights and obligations
between parties to a dispute and the application of international law (justiciability) is different from whether the
Court has been vested with the necessary authority by the parties to a dispute to apply and interpret the law in
relation to that dispute. The Court is forbidden by its Statute and jurisprudence from exercising its jurisdiction
in a case in which the parties have not given their consent. It is on this basis that the Court has reached its
Judgment. . . . [S]uch judgment should not be seen as an abdication of the Court’s function but rather a
reflection of the system within which the Court is called upon to render justice.” (emphasis added)).
176 Oil Platforms, 1996 I.C.J. at 812, ¶ 23; see also Delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary
Objections Judgment, ¶ 33 (I.C.J., Mar. 17, 2016) (“That question [of whether the Court lacks jurisdiction in
respect of the proceedings], has to be answered by the application to the relevant provisions of the Pact of
Bogota of the rules on treaty interpretation enshrined in Article 31 to 33 of the Vienna Convention.”).
177 Compare Oil Platforms, 1996 I.C.J. at 809-810, ¶ 16, with Verbatim Record of the Public Sitting of the I.C.J.
Held on Sept. 20, 1996, at 48, ¶ 18, Oil Platforms (Iran v. United States) (Professor Crawford on behalf of Iran).
42
violations of the Treaty of 1955 pleaded by Iran do or do not fall within the provisions of the
Treaty and whether, as a consequence, the dispute is one which the Court has jurisdiction
ratione materiae to entertain.”178 To make this determination, the Court must consider as a
legal matter whether the measures Iran places in issue fall within the jurisdiction of the Court
by application of the Treaty provisions invoked, or whether Iran is instead attempting to bring
before the Court claims relating to matters that the Treaty does not regulate.179
5.7 Because the Court cannot found its jurisdiction on “an impressionistic basis,” it “must
bring a detailed analysis to bear” when it interprets the articles of the Treaty that are said to
have been violated by the Respondent.180 Determining whether the Treaty governs the claims
before the Court thus requires reference to the customary international law rules of treaty
interpretation enshrined in Articles 31 and 32 of the 1969 Vienna Convention on the Law of
Treaties (VCLT).181 Under those familiar rules, the Treaty of Amity
must be interpreted in good faith in accordance with the ordinary meaning
to be given to its terms in their context and in the light of its object and
purpose. Under Article 32, recourse may be had to supplementary means
of interpretation such as the preparatory work and the circumstances in
which the treaty was concluded.182
5.8 In the preliminary objections phase of Oil Platforms, the Court assessed Iran’s claims
against the text of the particular provisions invoked in light of the object, purpose, context,
and history, including in connection with similar FCN treaties concluded by the United States
during the same time period. The Court observed that the “object [of the treaty] is . . . the
‘encouraging of mutually beneficial trade and investments and closer economic intercourse
generally’ as well as ‘regulating consular relations’ between the two States” 183 and
178 Oil Platforms, 1996 I.C.J. at 809-810, ¶ 16 (emphasis added). The Court took the same approach in the
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia) case, where it concluded that “[t]o found its jurisdiction, the Court must, however,
still ensure that the dispute in question does indeed fall within the provisions of the provisions of Article IX of
the Genocide Convention.” 1996 I.C.J. 595, 615, ¶ 30 (Preliminary Objections Judgment of July 11) (emphasis
added).
179 Oil Platforms, 1996 I.C.J. at 820, ¶ 51. See also id. at 856, ¶ 33 (Separate Opinion of Judge Higgins).
180 Id. at 855, ¶ 29 (Separate Opinion of Judge Higgins); see also Delimitation of the Continental Shelf,
Preliminary Objections Judgment, ¶¶ 31-46 (resolving Colombia’s objection to the Court’s jurisdiction ratione
temporis through a thorough review of the text of the relevant article of the Bogota Pact, in light of its context
and the object and purpose of the Pact, as well as the Parties practice and a review of the travaux preparatoires).
181 Oil Platforms, 1996 I.C.J. at 812, ¶ 23.
182 Id..
183 Id. at 813, ¶ 27.
43
characterized the Treaty as “relating to trade and commerce in general.”184 Reviewing the
Treaty’s substantive provisions, the Court underscored that the Treaty was of a limited and
focused character, and that its object and purpose “was not to regulate peaceful and friendly
relations between the two States in a general sense.”185 The Court thus rejected Iran’s claim
that Article I’s reference to “firm and enduring peace and sincere friendship” between the
Parties could be interpreted “as incorporating into the Treaty all of the provisions of
international law concerning such relations.”186 Further examining the scope of the articles
invoked by Iran in this light, the Court held that claims under one article, IV(1), had to be
rejected as outside the Court’s jurisdiction because the provision did not “lay down any
norms applicable to this particular case.”187
5.9 Hence, the Court has recognized that it may dismiss as a preliminary matter claims
that would require expanding the scope of the Parties’ agreement or importing additional
legal rules into a treaty where, as here, the Treaty text, context, and practice of the Parties do
not support such a reading.
5.10 This basic proposition is illustrated even in cases applying the prima facie
jurisdictional test applicable to provisional measures applications. For example, in Immunities
and Criminal Proceedings (Equatorial Guinea v. France), the Court recently rejected
Equatorial Guinea’s request for the Court to order France to suspend criminal proceedings
against its Vice-President as a provisional measure, based on the Court’s finding that it
lacked prima facie jurisdiction under the compromissory clause of the Convention against
Transnational Organized Crime. In support of its request, Equatorial Guinea cited Article 4 of
that Convention, which provides that “States Parties shall carry out their obligations under
this Convention in a manner consistent with the principles of sovereign equality and
territorial integrity of States and that of non-intervention in the domestic affairs of other
184 Id. at 817, ¶ 41.
185 Id. at 814, ¶ 28; see also id. at 817, ¶ 41 (referencing indications in the Treaty “of an intention of the parties
to deal with trade and commerce in general”). The Court also emphasized that the compromissory clauses of
FCN treaties dating from this period had been “consistently referred to by the Department of State as being
‘limited to differences arising immediately from the specific treaty concerned’, as such treaties deal with
‘familiar subject matter’ in relation to which ‘an established body of interpretation already exists.’” Id. at 814,
¶ 29.
186 Id. at 814, ¶ 28.
187 Id. at 816, ¶ 36.
44
States.”188
5.11 After reviewing the Convention’s text and context and the relevant practice of the
Parties, the Court explained that the purpose of this language was to ensure that States Parties
performed their obligations under the Convention in accordance with the principles outlined
in Article 4.189 Article 4 did not serve “to create new rules concerning the immunities of
holders of high-ranking office in the State or incorporate rules of customary international law
concerning those immunities.” 190 The Court therefore found that it had no prima facie
jurisdiction under the invoked Convention to indicate the measure requested by Equatorial
Guinea.191 Plainly, if the Court will assess and reject jurisdiction based on the scope of the
applicable legal instrument at the provisional measures phase (under a more permissive prima
facie test), it should a fortiori undertake a more rigorous assessment at the preliminary
objections phase where it must determine whether claims “do or do not” fall under a treaty.
5.12 Iran utterly fails to conduct the requisite treaty interpretation analysis in its Memorial
so as to establish a basis for jurisdiction over its claims. Instead, Iran appeals to VCLT
Article 31(3)(c), which provides that “relevant rules of international law applicable in the
relations between the parties” shall be “taken into account, together with the context.” But
this provision of the VCLT does not permit Iran to disregard the result arrived at through
application of the other provisions of Article 31 or to accrete unrelated rules to the treaty text.
Were it employed in such a way, the Parties’ ability to agree on the scope of their obligations
would be effectively nullified. Rather, the sole purpose of Article 31(3)(c) is to assist in
interpreting the treaty text; thus, a rule of international law that is to be used in this
interpretive exercise must be “relevant,” in that it concerns the subject matter of the provision
at issue. As explained authoritatively by Richard Gardiner,
Located in its immediate context of treaty interpretation, article 31(3)(c)
implicitly invites the interpreter to draw a distinction between using rules
of international law as part of the apparatus of treaty interpretation and
applying the rules of international law directly to the facts in the context of
188 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Order on Request for the Indication of
Provisional Measures, ¶¶ 9, 32, 41 (I.C.J., Dec. 7, 2016).
189 Id. ¶¶ 43-50.
190 Id. ¶ 49.
191 Id. ¶ 50.
45
which the treaty is being considered. The former is within the scope of the
Vienna rules, the latter is not.192
5.13 The history of Article 31(3)(c) underscores this limited purpose. During the
negotiation of the 1969 VCLT, States provided comments on a 1964 draft convention
prepared by the International Law Commission (ILC) that included language similar to the
current Article 31(3)(c). The Netherlands proposed to delete the provision in its entirety, out
of a concern that it might invite efforts to consider “the meaning of … concepts elsewhere in
international law and independently of the treaty to be interpreted.” 193 That is, The
Netherlands was concerned about the very type of argument that Iran is making here – that
the provision would be taken as license to import customary international law concepts into a
treaty independently of the terms of the treaty under the guise of interpretation “in light of
rules of general international law.”
5.14 The ILC emphatically rejected the notion that the draft provision was ever intended,
or could properly be understood, to operate in the way The Netherlands feared. Sir Humphrey
Waldock, the ILC Special Rapporteur for the project, explained:
The objection taken by the Netherlands Government . . . does not seem to
the Special Rapporteur to carry conviction; for it involves interpreting the
sub-paragraph in a manner which could hardly be justified as an
interpretation in good faith. Certainly, it is a manner of interpreting the
reference to rules of international law which has not occurred to any other
Government and which did not occur to members of the Commission in
1964 or to members of the Institute of International Law in 1956 when
they adopted the resolution on the interpretation of treaties mentioned in
the Special Rapporteur’s third report. Paragraph 1 has to be read as a
whole and, when this is done, it does little more than say that the terms of
a treaty have to be interpreted in the light of the fact that it is an instrument
concluded under the international legal order existing at the time of its
conclusion.194
5.15 The Court affirmed the narrow purpose of VCLT Article 31(3)(c) in Pulp Mills,
rejecting Argentina’s reliance on Article 31(3)(c) to expand the Court’s jurisdiction under a
1975 Statute between Argentina and Uruguay.195 Argentina urged the Court to interpret the
192 RICHARD K. GARDINER, TREATY INTERPRETATION 320 (2d ed. 2015) (emphasis added).
193 Sixth Report on the Law of Treaties, Sir Humphrey Waldock, Special Rapporteur, [1966] 2 Y.B. INT’L L.
COMM’N 51, 92, U.N. Doc. A/CN.4/SER.A/1966/Add.1 (US Annex 245).
194 Id. at 96.
195 Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14, 42-43 & 46-47, ¶¶ 55 & 66 (Apr.
20).
46
Statute to take account of all “relevant rules” of international law applicable between the
Parties.196 It argued that two of the Statute’s articles could be interpreted to contain “referral
clauses” such that obligations arising under other treaties and international agreements would
fall within the Court’s jurisdiction. 197 The Court rejected these arguments, holding that
“whether these are rules of general international law or contained in multilateral conventions
to which the two States are Parties, nevertheless has no bearing on the scope of the
jurisdiction conferred on the Court under [the compromissory clause] of the 1975 Statute,
which remains confined to disputes concerning the interpretation or application of the
Statute.”198
* * *
5.16 It is thus clear that the Court must determine, as a matter of law, whether Iran’s claims
as pleaded “do or do not fall within the provisions of the Treaty and whether, as a
consequence, the dispute is one which the Court has jurisdiction ratione materiae to
entertain.”199 These questions – and those of admissibility addressed in Chapter 6 – require
resolution at a preliminary stage to avoid abuse of the Court’s jurisdiction, and will not
require the Court to engage with the merits of Iran’s claims.
196 Id. at 42-43, ¶ 55.
197 Id. at 43, ¶ 56.
198 Id. at 46-47, ¶ 66.
199 Oil Platforms, 1996 I.C.J. at 809-810, ¶ 16 (emphasis added).
47
PART II: U.S. OBJECTIONS TO ADMISSIBILITY AND JURISDICTION
U.S. OBJECTIONS CHAPTER 6: TO ADMISSIBILITY
6.1 This Chapter sets forth two objections upon which the Court can and should hold
Iran’s Application inadmissible. The first, described in Section A, explains that Iran’s attempt
to found jurisdiction on the Treaty, notwithstanding the longstanding absence of normal
commercial or consular relations between the Parties, constitutes in the circumstances of this
case an abuse of right, which is meant not to vindicate interests protected by the Treaty but
rather to embroil the Court in the Parties’ broader strategic dispute. The second, addressed in
Section B, details how the U.S. actions at issue in this case derive from Iran’s own unclean
hands – as a sponsor of terrorism and its repeated violations of counter-terrorism, weapons
proliferation, and arms trafficking obligations – thus strongly counseling the Court to decline
any jurisdiction it may have over Iran’s claims.
Section A: The Court Should Decline to Found Jurisdiction on the Treaty of Amity in
the Circumstances of the Present Case
6.2 Apart from the United States’ specific objections to the Court’s jurisdiction under
Article XXI(2) of the Treaty,200 the Court should decline to found jurisdiction on the Treaty
of Amity in the circumstances of the present case. The activity that the Treaty was intended
to govern – namely, normal and ongoing bilateral commercial and consular relations – has
not existed in any meaningful sense between the United States and Iran for nearly four
decades. In these circumstances, Iran’s attempt to found jurisdiction on Article XXI(2) of the
Treaty is disingenuous and should be rejected as an abuse of right. The integrity of the
Court’s judicial function compels the Court to reject Iran’s reliance on the Treaty in this case.
A long-running strategic dispute cannot properly be permitted to masquerade in the costume
of a commercial and consular treaty case.
i. The Fundamental Conditions Underlying the Treaty of Amity
No Longer Exist Between the Parties
6.3 The Treaty provides the sole basis for the Court’s jurisdiction in the present case.201
200 The United States’ objections to the Court’s jurisdiction are stated infra, Chapters 7-9.
201 Article XXI(2) of the Treaty allows only for the submission of disputes arising out of the Treaty itself: “Any
dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not
48
The objective of the Treaty, as confirmed by its text and by the prior decisions of the Court,
was to foster ongoing and amicable commercial and consular relations between the United
States and Iran.202 The situation that exists between the Parties today is far removed from that
contemplated by the Parties in 1955 and crystallized in the text of the Treaty.
6.4 The Parties intended the Treaty to regulate and cultivate friendly “economic relations”
and consular rights. The Treaty’s preamble states the Parties’ desire to “emphasiz[e] the
friendly relations which [had] long prevailed between their peoples” and to “encourag[e]
mutually beneficial trade and investments.” It makes plain that the Treaty was an instrument
to cement relations and put in place a basis and a means of oiling the day-to-day wheels of
the “economic intercourse generally between their peoples, and of regulating consular
relations.”
6.5 The Parties, moreover, agreed that the commercial and consular activity contemplated
in the Treaty would be predicated on a state of peace and friendly relations between Iran and
the United States. Article I of the Treaty states this plainly, providing: “There shall be firm
and enduring peace and sincere friendship between the United States of America and Iran.”
6.6 The Treaty thus protected interests arising from a particular kind of activity –
commercial and consular relations – which the parties anticipated would flow from an
underlying state of persistent peace and friendship. The findings of the Court in its 1996 Oil
Platforms judgment reinforce this conclusion. In a passage that warrants quotation at length,
the Court stated as follows:
Article I is in fact inserted . . . into a treaty of “Amity, Economic Relations
and Consular Rights” whose object is, according to the terms of the
Preamble, the “encouraging [of] mutually beneficial trade and investments
and closer economic intercourse generally” as well as “regulating consular
relations” between the two States. The Treaty regulates the conditions of
residence of nationals of one of the parties on the territory of the other
(Art. II), the status of companies and access to the courts and arbitration
(Art. III), safeguards for the nationals and companies of each of the
contracting parties as well as their property and enterprises (Art. IV), the
conditions for the purchase and sale of real property and protection of
intellectual property (Art. V), the tax system (Art. VI), the system of
transfers (Art. VII), customs duties and other import restrictions (Arts.
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.”
202 See supra Chapter 2.
49
VIII and IX), freedom of commerce and navigation (Arts. X and XI), and
the rights and duties of Consuls (Arts. XII-XIX).
It follows that the object and purpose of the Treaty of 1955 was not to
regulate peaceful and friendly relations between the two States in a general
sense. Consequently, Article I cannot be interpreted as incorporating into
the Treaty all of the provisions of international law concerning such
relations. Rather, by incorporating into the body of the Treaty the form of
words used in Article I, the two States intended to stress that peace and
friendship constituted the precondition for a harmonious development of
their commercial, financial and consular relations and that such a
development would in turn reinforce that peace and that friendship. It
follows that Article I must be regarded as fixing an objective, in the light
of which the other Treaty provisions are to be interpreted and applied.203
6.7 The Court’s conclusion in its 1996 Oil Platforms Judgment, issued more than 20 years
ago, captures the purpose of the Treaty and the nature of the interests protected thereby. The
Treaty was not intended by the Parties to govern all aspects of U.S.-Iranian relations – that is,
relations “in a general sense.” Rather, the Treaty addresses narrower transactional interests:
investment, trade, and consular relations. Moreover, the Parties expected that this commercial
and consular activity would take place on the basis of ongoing peace and friendship between
the two countries.
6.8 Today, the picture could not be more different. There are no meaningful commercial
or consular relations between the United States and Iran as were envisaged in the Treaty.
Friendly relations between the two countries ended 38 years ago, when Iran seized and held
hostage U.S. diplomats in Tehran for 444 days.204 The rupture continued with Iran’s support
for terrorist acts aimed directly at the United States and its nationals.205
6.9 There has been no general economic intercourse between the peoples of the United
States and Iran in any normal sense since then. There have been no consular relations. Both
sides have adopted laws and policies aimed at curtailing, if not eliminating altogether, all
normal economic intercourse and relations between the two countries and their nationals.206
203 Oil Platforms, 1996 I.C.J. at 813-814, ¶¶ 27-28.
204 See supra Chapter 2, Sec. C.
205 See supra Chapter 3.
206 See supra Chapter 4.
50
Even in the period since the filing of Iran’s Memorial in this case, Iran has announced new
sanctions against U.S. companies.207
6.10 In short, the situation that has persisted between the Parties over the better part of four
decades bears little resemblance to the relationship on which the Treaty was based. What has
taken place between the Parties since 1979 is a long-running strategic dispute, which has
involved matters such as Iran’s support for terrorism and its destabilizing pursuit of nuclear
capability and ballistic missiles. Iran may wish to regard the Treaty as a vehicle for waging
this wider strategic dispute. But to permit Iran to do so in the present case would subvert the
purpose of the Treaty and misappropriate the Court’s judicial function.
6.11 Although the Treaty remains in force, the assertion that the compromissory clause of
the Treaty is appropriately invoked to address the rupture between the United States and Iran
today should be treated with considerable caution. The United States’ contention, as detailed
in the following sections, is that Iran’s claim in the present case does not constitute a bona
fide invocation of the Treaty, and the Court accordingly should not assume jurisdiction in this
case.208
ii. Iran’s Claims Are Abusive and Must Be Deemed Inadmissible
6.12 Iran’s claims in this case constitute an abuse of the rights afforded by the Treaty, and
Iran’s assertion of jurisdiction based on the Treaty should therefore be rejected as
inadmissible. Iran’s claims are abusive in the circumstances of the present case because they
subvert the purposes of the Treaty.
6.13 The principle that all treaties in force must be performed in good faith is wellestablished
in customary international law.209 The obligation to act in good faith entails the
correlative principle – widely recognized by international tribunals – that rights shall not be
207 See id. Sec. B.
208 This objection is of necessity a case-specific determination. See, e.g., Mobil Corporation, Venezuela
Holdings, B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction ¶ 177
(June 10, 2010) (US Annex 172) (“Under general international law . . ., abuse of right is to be determined in
each case, taking into account all the circumstances of the case.”).
209 Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S. 331 (“Every treaty in force
is binding upon the parties to it and must be performed by them in good faith.”); Mutual Assistance in Criminal
Matters, 2008 I.C.J. at 229, ¶ 145 (noting that exercise of a treaty right is “subject to the obligation of good
faith”); Third Report on the Law of Treaties, Sir Humphrey Waldock, Special Rapporteur, U.N. Doc.
A/CN.4/167, at pp. 5, 7-8 (1964) (US Annex 173).
51
abused.210 Abuse of right occurs where, inter alia, a party exercises a right in a manner that is
not “genuinely in pursuit of those interests which the right is destined to protect,”211 or where
a party exercises a treaty right or power for an improper purpose.212 Where the initiation of a
legal proceeding is founded on an abuse of rights, the claims in that proceeding are
inadmissible.213
210 See, e.g., Rights of Nationals of the United States of America in Morocco (France v. United States of
America), 1952 I.C.J. 176, 212 (Aug. 27) (finding that, pursuant to the Act of Algeciras, the power to set values
on imported goods for customs purposes “rests with the Customs authorities, but it is a power which must be
exercised reasonably and in good faith”); Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116, 141-142
(Dec. 18) (stating that “manifest abuse” may be taken into account when determining whether general principles
were complied with in the determination of the baseline of territorial waters); Certain German Interests in
Polish Upper Silesia (Germany v. Poland), 1926 P.C.I.J. (ser. A) No. 7, at 30 (Merits Judgment of May 25)
(finding that a “misuse of” Germany’s sovereign right to dispose of property in Upper Silesia pending the
transfer of sovereignty “could endow any act of alienation with the character of a breach” of German’s
international obligations); Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), 1932
P.C.I.J. (ser. A/B) No. 46, at 167 (June 7) (rejecting Switzerland’s argument that a treaty prohibition on customs
duties in the free zones also prohibited France from charging other duties and taxes with respect to Swiss
imports, but stating that a “reservation must be made as regards the case of abuses of a right”); Mobil v.
Venezuela, ¶¶ 169-176 (US Annex 172) (collecting authorities).
211 BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 131-32
(1953) (“It follows from th[e] interdependence of rights and obligations that rights must be reasonably
exercised. The reasonable and bona fide exercise of a right implies an exercise which is genuinely in pursuit of
those interests which the right is destined to protect and which is not calculated to cause any unfair prejudice to
the legitimate interests of another State, whether these interests be acquired by treaty or by general international
law.”).
212 E.g., Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7, 78-79, ¶ 142 (Sept. 25) (stating
that the principle of good faith “implies that, in this case, it is the purpose of the Treaty, and the intentions of the
parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the
Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.”); Mutual
Assistance in Criminal Matters, 2008 I.C.J. at 279, ¶ 6 (Declaration of Judge Keith) (“I now consider the
reasons given by the judge in her soit-transmis against the principles of good faith, abuse of rights and
détournement de pouvoir. Those principles require the State agency in question to exercise the power for the
purposes for which it was conferred and without regard to improper purposes or irrelevant factors.”);
Miroļubovs & autres c. Lettonie, Req. No. 798/05, Arrêt, ¶ 62 (Eur. Ct. H.R., Dec. 15, 2009) (US Annex 174)
(“La Cour considère donc que la notion d’« abus », au sens de l’article 35 § 3 de la Convention, doit être
comprise dans son sens ordinaire retenu par la théorie générale du droit – à savoir le fait, par le titulaire d’un
droit, de le mettre en oeuvre en dehors de sa finalité d’une manière préjudiciable.”); Emmanuel Gaillard, Abuse
of Process in International Arbitration, 32 ICSID REV. 17, 36 (2017) (US Annex 175) (explaining that the
“abuse of process principle could . . . allow for the dismissal of claims initiated for purposes ulterior to the
resolution of a genuine dispute”).
213 See, e.g., Philip Morris Asia Ltd. v. Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12,
Award on Jurisdiction and Admissibility ¶ 588 (Dec. 17, 2015) (US Annex 176) (“[T]he Tribunal cannot but
conclude that the initiation of this arbitration constitutes an abuse of rights [in light of the claimant’s
opportunistic corporate restructuring]. Accordingly, the claims raised in this arbitration are inadmissible and the
Tribunal is precluded from exercising jurisdiction over this dispute.”); Churchill Mining PLC & Planet Mining
Pty Ltd v. Republic of Indonesia, ICSID Case Nos. ARB/12/14 & ARB/12/40, Award ¶ 528 (Dec. 6, 2016) (US
Annex 177) (“[T]he general principle of good faith and the prohibition of abuse of process entail that the claims
before this Tribunal cannot benefit from investment protection under the Treaties and are, consequently, deemed
inadmissible.”); Certain Phosphate Lands in Nauru (Nauru v. Australia), 1992 I.C.J. 240, 255, ¶ 38 (June 26)
(indicating, while rejecting an objection to admissibility, that an objection could have been upheld if the
applicant’s conduct had amounted “to an abuse of process”).
52
6.14 Iran’s claims in this case do not concern disputes arising in the course of ordinary and
friendly economic or consular activity, for the simple reason that, as noted above, such
activity currently does not exist between the parties. Iran’s effort to funnel the claims it seeks
to pursue in the present case into the language of the Treaty thus constitutes an abuse of
rights.
6.15 The claims that Iran raises in this case, by their own terms, do not concern interests
arising out of the kind of activity that the Treaty was designed to protect. For instance, Iran
challenges sanctions imposed by the United States, which, in concert with other U.S. and
multilateral actions, target Iran’s pursuit of ballistic missile capability and its support for and
facilitation of terrorism, including through the provision of arms.214 Iran also challenges
various legislative measures taken by the United States under which individuals may obtain
reparation for injury and death caused by acts of terrorism carried out by or with the support
of State officials, employees, or agents.215
6.16 In this respect, Iran’s claims concerning sovereign immunity are particularly
egregious. Prior to initiating this claim, Iran had repeatedly resisted the notion that the sole
provision of the Treaty that addresses sovereign immunity – the waiver of immunity
contained in Article XI(4) – reaches Iran or any Iranian State entities that are not
“enterprises” within the meaning of that provision. 216 And in the Peterson enforcement
proceeding itself, Bank Markazi went so far as to argue that the Treaty of Amity was not a
“provision of law relating to sovereign immunity.”217 Nevertheless, Iran now asserts that the
Treaty requires the extension of “[g]enerally applicable immunities” under customary
international law to Iran and Iranian entities.218 This attempt to rewrite the Treaty to suit
Iran’s present needs violates basic principles of good faith219 and serves only to demonstrate
the abusive manner in which Iran seeks to manipulate the Treaty in disregard of its object and
purpose.
214 See supra Chapter 4, Sec. A.
215 See id.
216 See infra Chapter 8, Sec. B.
217 Brief for Defendant-Appellant Bank Markazi at 45, Deborah Peterson, et al. v. Islamic Republic of Iran, et
al. (No. 13-2952) (2d Cir. Nov. 19, 2013) (US Annex 233).
218 E.g., Iran’s Memorial, ¶ 5.44(a).
219 See, e.g., CHENG at 141 (“It is a principle of good faith that ‘a man shall not be allowed to blow hot and
cold—to affirm at one time and deny at another.’”).
53
6.17 Despite Iran’s efforts, the present dispute cannot be disguised as a transactional
dispute that simply engages technical questions regarding the application of the Treaty to
ongoing commercial or consular activity. Rather, Iran’s claims concern various actions taken
in the context of long-running antagonism between the parties. This dispute has nothing to do
with the interests protected by the Treaty.
6.18 The Court accordingly should find that Iran’s claims constitute an abuse of the rights
afforded by the Treaty, and should decline to exercise jurisdiction based thereon. To find
otherwise would be to rest on a fiction that the present dispute is no more than a transactional
dispute between States engaged in routine commercial and economic relations. It is not.
iii. Exercising Jurisdiction in this Case Would Undermine the
Integrity of the Court’s Judicial Function
6.19 The integrity of the Court’s judicial function compels the Court to decline to exercise
jurisdiction in the circumstances of the present case. The Court has long recognized that its
judicial functions must be limited by considerations of integrity and propriety. 220 In the
present case, for the reasons stated above, Iran’s claims are incompatible with the Court’s
judicial function.
6.20 In its 1963 Judgment in the Northern Cameroons case, the Court emphasized that the
integrity of the judicial function did not oblige it to exercise jurisdiction in all cases. On the
contrary, the Court observed that if adjudication on the merits “would be inconsistent with its
judicial function, it should refuse to do so.”221 The Court further stated:
It is the act of the Applicant which seises the Court but even if the Court,
when seised, finds that it has jurisdiction, the Court is not compelled in
every case to exercise that jurisdiction. There are inherent limitations on
the exercise of the judicial function which the Court, as a court of justice,
can never ignore. There may thus be an incompatibility between the
desires of an applicant, or, indeed, of both parties to a case, on the one
hand, and on the other hand the duty of the Court to maintain its judicial
character. The Court itself, and not the parties, must be the guardian of the
Court’s judicial integrity.222
220 Frontier Dispute (Burkina Faso v. Niger), 2013 I.C.J. 44, 69, ¶ 45 (Apr. 16); Nuclear Tests Case (New
Zealand v. France), 1974 I.C.J. 457, 477, ¶¶ 60-61 (Dec. 20); Nuclear Tests Case (Australia v. France), 1974
I.C.J. 253, 271, ¶¶ 57-58 (Dec. 20); Northern Cameroons, 1963 I.C.J. at 29.
221 Northern Cameroons, 1963 I.C.J. at 37.
222 Id. at 29.
54
6.21 The Court endorsed this principle more recently in its 2013 Judgment in the Frontier
Dispute (Burkina Faso/Niger) case.223
6.22 In Northern Cameroons, the issue was the interpretation of a treaty that was no longer
in force. The Treaty in the present case has not been terminated, but there should be no
illusion that the Treaty can sustain the weight that Iran now seeks to place on it. It cannot. A
judgment of the Court on the merits of the present case would rest on a fiction.
6.23 To exercise jurisdiction in these circumstances would do no favor to the Parties. It
would not serve or enhance the Court. And it would call into question the credibility of the
judicial settlement of disputes. The integrity of the Court’s judicial function thus counsels
that Iran’s claims be held inadmissible.
* * *
6.24 For the foregoing reasons, the Court should decline to assume jurisdiction on the basis
of the Treaty in the circumstances of the present case.
Section B: Iran’s Unclean Hands, Soiled by Decades of Support for Terrorism and
Other Destabilizing Actions in Violation of International Law, Render Its
Claims Inadmissible
6.25 As established in Chapter 3, Iran has engaged for years in a persistent pattern of
conduct in flagrant violation of international law. Iran’s threatening conduct includes its
sponsorship of terrorist acts against Americans and nationals of many other countries,
including material and financial support for proxies who act on its behalf, such as the terrorist
organization Hezbollah; breaches of its nuclear non-proliferation obligations and defiance of
UN Security Council resolutions adopted to address those breaches; its continuing effort to
obtain and put into use a ballistic missile capability; its trafficking in arms destined for
terrorist organizations and financing of such organizations; and the enlistment of its financial
sector to enable this conduct and conceal it from those who would otherwise seek to block
such efforts.224
6.26 The internationally wrongful nature of Iran’s behavior is indisputable. The terrorist
acts attributable to Iran – through its proxies or otherwise – cannot be justified under
223 Frontier Dispute, 2013 I.C.J. at 69, ¶ 45 (finding that the Court must verify whether the jurisdiction
conferred on it by the Parties’ special agreement “falls within the Court’s judicial function,” and quoting
Northern Cameroons).
224 See supra Chapters 3 & 4.
55
international law, which, pursuant to Security Council resolution 1373 (2001), requires
States, among other things, to “[p]revent and suppress the financing of terrorist acts . . . [and
to] [r]efrain from providing any form of support, active or passive, to entities or persons
involved in terrorist acts.”225 Iran also blatantly violated a multitude of UN Security Council
resolutions and multilateral treaty obligations directed at its nuclear and ballistic missile
programs, and illicit arms trafficking.226
6.27 It beggars belief that Iran now seeks to use a narrow commercial and consular treaty
as a means to ask the Court to shield it from the peaceful measures taken by the United States
(often in alignment with the international community) to confront Iran’s systematic pattern of
unlawful and destabilizing conduct. For example, Iran’s central claim challenges the blocking
and subsequent attachment of assets in which Iran’s central bank, Bank Markazi, had an
interest in the Peterson enforcement proceeding. But that proceeding related to funds blocked
under U.S. law as part of the effort to prevent Iran from evading sanctions targeting its illicit
activities and to compensate U.S. victims of the deadly bombing of the U.S. Marine barracks
225 S.C. Res. 1373, prmbl. and ¶¶ 1-2 (US Annex 81) (reaffirming that “every State has the duty to refrain from
organizing, instigating, assisting or participating in terrorist acts in another State” and deciding that all States
shall “[p]revent those who finance, plan, facilitate or commit terrorist acts from using their respective territories
for those purposes against other States or their citizens”); see also, e.g., S.C. Res. 748, U.N. Doc. S/RES/748,
prmbl. (Mar. 31, 1992) (US Annex 178) (reaffirming States’ duty “to refrain from organizing, instigating,
assisting or participating in terrorist acts”); G.A. Res. 49/60, Measures to Eliminate International Terrorism,
U.N. Doc. A/RES/49/60, prmbl. & ¶¶ 4-5 (Feb. 17, 1995) (US Annex 179) (“Convinced also that the
suppression of acts of international terrorism, including those in which States are directly or indirectly involved,
is an essential element for the maintenance of international peace and security”); S.C. Res. 1189, U.N. Doc.
S/RES/1189, prmbl. (Aug. 13, 1998) (US Annex 180) (noting that “suppression of acts of international terrorism
is essential for the maintenance of international peace and security, and reaffirming the determination of the
international community to eliminate international terrorism in all its forms and manifestations”); G.A. Res.
60/288, United Nations Global Counter-Terrorism Strategy, U.N. Doc. A/RES/60/288, Annex (Sept. 20, 2006)
(US Annex 181) (resolving to undertake measures “to prevent and combat terrorism”); S.C. Res. 2253, U.N.
Doc. S/RES/2253, prmbl. (Dec. 17, 2015) (US Annex 182) (“Recognizing the need to take measures to prevent
and suppress the financing of terrorism . . . even in the absence of a link to a specific terrorist act”); International
Convention for the Suppression of Terrorist Bombings (Dec. 15, 1997), 2149 U.N.T.S. 256 (US Annex 183)
(entering into force in 2001, this treaty has 170 Parties, including the United States, but not Iran); International
Convention for the Suppression of the Financing of Terrorism (Dec. 9, 1999), 2178 U.N.T.S. 197 (US Annex
184) (entering into force in 2002, there are 188 Parties, including the United States, but not Iran).
226 See Treaty on the Non-Proliferation of Nuclear Weapons (July 1, 1968), 729 U.N.T.S. 168 (US Annex 185)
(entered into force on March 5, 1970; broadly requires non-nuclear weapon States Party to that treaty, like Iran,
to accept IAEA safeguards on their nuclear material to prevent diversion of nuclear energy from peaceful uses to
nuclear weapons, among other things). See also supra Chapter 4, Sec. A (setting forth the various UN Security
Council resolutions enacted to deter Iran’s nuclear and ballistic missile programs, as well as impose on it certain
arms trafficking obligations). While it may be true that the UN Security Council’s consideration of the issue of
Iran’s nuclear program (and related violations of international law) is now informed by the JCPOA – only after
years of sanctions brought Iran to the negotiating table – the U.S. measures taken to address those violations in
line with UN Security Council mandates must be viewed in the context of the time in which they were taken.
Moreover, other Iranian conduct – such as its ballistic missile program and arms trafficking, left unaddressed by
the JCPOA – continue to constitute a threat.
56
in Beirut in 1983. This is the very same terrorist attack that was the subject of boastful
speeches by senior Iranian government officials celebrating Iran’s responsibility for the
deaths of hundreds of U.S. nationals.227
6.28 In short, Iran comes to the Court with unclean hands and asks the Court to rule on
U.S. measures, while ignoring Iran’s own conduct giving rise to those measures. In such
circumstances, the Court should refuse to entertain Iran’s claims on the merits in this case.
Iran’s claims against the United States – which derive from Iran’s own violations of
international law – are unsuitable for adjudication by the Court.
6.29 This section is comprised of two parts. Part (i) sets forth the legal basis for the
objection to admissibility of Iran’s Application under well-established general principles of
law forming the “clean hands” doctrine. Part (ii) applies those general principles in the
context of Iran’s illicit conduct, described in Chapter 3, and the U.S. measures taken in
response, described in Chapter 4.
i. General Principles of Law Provide a Basis to Decline to
Examine Iran’s Claims on the Merits
6.30 General principles of law,228 grounded in equity and the requirement of good faith,
should lead the Court to decline to review Iran’s claims on the merits.229 To do otherwise
would be to reward Iran’s internationally wrongful conduct, as a consequence of which the
United States took the very measures that Iran complains of now. These general principles,
making up the “clean hands” doctrine, have been expressed in a variety of ways, including
nullus commodum capere de sua injuria propria (“no one can be allowed to take advantage
of his own wrong”) (hereinafter nullus commodum) and ex delicto non oritur actio (“an
227 See supra Chapter 3.
228 The Court is empowered to, and “shall apply: . . . the general principles of law recognized by civilized
nations.” Statute of the International Court of Justice, art. 38.
229 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 1998 I.C.J. 275,
296, ¶ 38 (June 11) (“the principle of good faith is a well-established principle of international law”); Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), 1993 I.C.J. 38, 191
(June 14, 1993) (Separate Opinion of Judge Shahabuddeen) (“Equity itself being part of the law, there is no
question either of equity correcting law or law correcting equity.”); Margaret White, Equity – A General
Principle of Law Recognised by Civilised Nations?, 4 QUEENSLAND U. TECH. L. & JUST. J. 103, 109 (2004) (US
Annex 186) (“The general understanding of the drafters of Article 38 appears to have been that . . . particular
equitable principles, as recognised within the various legal systems of the world, might play a role as ‘general
principles’ of international law.”).
57
unlawful act cannot serve as the basis of an action”) (hereinafter ex delicto).230 The premise
of these principles – that even a claimant seeking relief for purportedly unlawful actions may
be barred from obtaining that relief where those actions resulted from the claimant’s own
wrongful conduct231 – has been recognized by members of the Court, in the practice of States,
and by many highly regarded scholars.
6.31 Members of the Court have on several occasions confirmed the general principle that
a Party should not be permitted to benefit from its own wrong. For example, Judge Ajibola,
in his separate opinion in Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, asserted that “an applicant who ‘wants equity must do equity’
implying that the applicant ‘must come with clean hands.’”232 And notably, in evaluating the
conduct of Iran and the United States under the Treaty of Amity in Oil Platforms, the Court
did not rule out the possibility of finding – had circumstances been different – that Iran’s
230 Similar principles include ex injuria . . ., ex turpi . . ., ex malo . . ., and ex dolo malo non oritur actio (i.e., “a
wrong . . ., an immoral act . . ., a bad act . . ., a fraud cannot serve as the basis of an action”); inadimplenti non
est adimplendum (“he who seeks equity must do equity”); and “he who comes for relief must come with clean
hands.” See, e.g., Gerald G. Fitzmaurice, The General Principles of International Law Considered from the
Standpoint of the Rule of Law, 92 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 1,
117-119 (1957); CHENG at 149-158. The late Judge Anzilotti called the principle inadimplenti non est
adimplendum “so just, so equitable, so universally recognized, that it must be applied in international relations
also . . . It is one of these ‘general principles of law recognized by civilized nations’ which the Court applies in
virtue of Article 38 of its Statute.” Diversion of Water from the River Meuse (Belgium v. Netherlands), 1937
P.C.I.J. (ser. A/B) No. 70, at 50 (June 28) (Dissenting Opinion of Judge Anzilotti).
231 See Gabčíkovo-Nagymaros Project, 1997 I.C.J. at 67, ¶ 110 (stating that the Court could not “overlook” that
Czechoslovakia’s act was “a result of Hungary’s own prior wrongful conduct,” and finding that “Hungary, by its
own conduct, had prejudiced its right to terminate the Treaty”) (citing Factory at Chorzów (Germany v.
Poland), 1927 P.C.I.J. (ser. A) No. 9, at 31 (Judgment on Jurisdiction of July 26) (adopting related clean hands
principle in finding a Party could not avail itself of the other Party’s failure to fulfill an obligation where it had
caused that Party, through some illegal act, to be unable to fulfill it)). Both cases stand for the more general
proposition that a Party will not be permitted under international law to object to actions that were undertaken in
direct response to its own internationally wrongful conduct.
232 Application of the Convention and Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), 1993 I.C.J. 325, 395 (Order on Further Requests for the
Indication of Provisional Measures of Sept. 13) (Separate Opinion of Judge Ajibola); see also Legal Status of
Eastern Greenland (Denmark v. Norway), 1933 P.C.I.J. (ser. A/B) No. 53, at 95 (Apr. 5) (Dissenting Opinion of
Judge Anzilotti) (stating that “an unlawful act cannot serve as the basis for an action at law.”). Other members
of the Court have expressed similar views. For example, Judge Read declared in his dissenting opinion in
Interpretation of Peace Treaties that “in any proceeding which recognized the principles of justice,” no state
would be allowed to “profit from its own wrong.” Interpretation of Peace Treaties with Bulgaria, Hungary, and
Romania, Advisory Opinion (Second Phase), 1950 I.C.J. 221, 244 (July 18) (Dissenting Opinion of Judge
Read). Likewise, Judge Schwebel asserted in dissent in Military and Paramilitary Activities that Nicaragua’s
illegal conduct should have barred it from complaining about corresponding illegalities alleged to have been
committed by the United States, “especially because, if these were illegalities, they were consequential on or
were embarked upon in order to counter Nicaragua’s own illegality[.]” Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14, 394, ¶ 272 (Merits Judgment of June 27)
(Dissenting Opinion of Judge Schwebel). The Court declined to address the question of the clean hands doctrine
in that case, after finding that the facts as adduced would not support its application.
58
claims should be rejected because the actions of the United States had been the consequence
of Iran’s own unlawful conduct.233
6.32 The practice of States similarly supports the continuing vitality of these general
principles of law and equity, as States continue to invoke forms of the “clean hands” doctrine
in a variety of circumstances.234 The Legality of Use of Force cases provide a good example
of this, in which several States asserted a clean hands argument, often explicitly as an
objection to admissibility, both in the context of Yugoslavia’s request for provisional
measures and in later preliminary objections to Yugoslavia’s application.235 Iran itself has
relied on the doctrine before the Iran-U.S. Claims Tribunal, calling it a “universal, equitable
doctrine . . . which is supported by a vast and diverse body of international legal literature,
State practice and international case law.”236
6.33 The clean hands doctrine has also been recognized widely by scholars. 237 Edwin
233 See Oil Platforms, 2003 I.C.J. at 177, ¶ 29.
234 See, e.g., Preliminary Objections of the Kingdom of Belgium (July 5, 2000), ¶¶ 481-483, Legality of Use of
Force (Serbia and Montenegro v. Belgium) (in which Belgium argued that since “[Yugoslavia] has acted, and
continues to act, in bad faith . . . [its] application must be considered inadmissible”); Verbatim Record of the
Public Sitting of the I.C.J. Held on May 11, 1999, at 23, ¶ 3.17, Legality of Use of Force (Yugoslavia v. United
States) (United States argued that provisional measures would be inappropriate because Yugoslavia “does not
come to the Court with clean hands”); Verbatim Record of the Public Sitting of the I.C.J. Held on May 11, 1999,
at 15-16, ¶ 24, Legality of Use of Force (Serbia and Montenegro v. United Kingdom) (in which the United
Kingdom argued that the clean hands doctrine is “deeply rooted in the essential nature of the judicial function”
and “should be regarded as a ‘general principle of law’ within the meaning of Article 38 of the Statute”);
Verbatim Record of the Public Sitting of the I.C.J. Held on May 11, 1999, at 11, ¶ 3.1.4, Legality of Use of
Force (Serbia and Montenegro v. Portugal) (in which Portugal argued that “[b]earing in mind the ‘clean hands’
criterion, the request of the Federal Republic of Yugoslavia is not legitimate” since the facts at the origin of
Yugoslavia’s request were caused by Yugoslavia’s “illicit conduct”); Verbatim Record of the Public Sitting of
the I.C.J. Held on May 11, 1999, at 15-16, ¶¶ 44, 48(d), Legality of Use of Force (Serbia and Montenegro v.
Netherlands) (The Netherlands asserted the Court should deny Yugoslavia’s request because of Yugoslavia’s
“extremely dirty hands”); Verbatim Record of the Public Sitting of the I.C.J. Held on May 11, 1999, at 10, ¶ 1.6,
Legality of Use of Force (Serbia and Montenegro v. Germany) (Germany argues that Yugoslavia “does not
come to the Court with ‘clean hands’”); Verbatim Record of the Public Sitting of the I.C.J. Held on May 10,
1999, at 7, ¶ 5, Legality of Use of Force (Serbia and Montenegro v. Canada) (same for Canada).
235 See id.
236 Aryeh v. Iran, Case Nos. 842, 843 & 844, Respondent’s Hearing Memorial and Written Evidence, Vol. III,
(Mar. 23, 1993) (Doc. 80), Exhibit C, p. 44 (Iran-U.S. Claims Tribunal) (US Annex 187). See also Mohtadi v.
Iran, Case No. 271, Award No. 573-271-3 (Dec. 2, 1996), 32 IRAN-U.S. CL. TRIB. REP. 124, 134 (US Annex
188) (noting that Iran had raised clean hands as a reason to dismiss a claim); Karubian v. Iran, Case No. 419,
Award No. 569-419-2 (Mar. 6, 1996), 32 IRAN-U.S. CL. TRIB. REP. 3, 36 (US Annex 189) (asserting that claims
were barred by clean hands doctrine, among other things).
237 See, e.g., Fitzmaurice at 119; CHENG at 149-58 (surveying the application of nullus commodum and ex
delicto); CHRISTOPHER R. ROSSI, EQUITY AND INTERNATIONAL LAW: A LEGAL REALIST APPROACH TO
INTERNATIONAL DECISION MAKING 164-65 (1993); C. WILFRED JENKS, THE PROSPECTS OF INTERNATIONAL
ADJUDICATION 412-14 (1964); Stephen M. Schwebel, Clean Hands in the Court, 31 STUD. TRANSNAT’L LEGAL
POL’Y 74, 74 (1999) (US Annex 244). Notably, the UN Special Rapporteur on State Responsibility, James
Crawford, found “no basis for including the clean hands doctrine as a new circumstance precluding
59
Borchard wrote in 1915 that “it is an established maxim of all law, municipal and
international, that no one can profit by his own wrong, and that a plaintiff or a claimant must
come into the court with clean hands.”238 Sir Gerald Fitzmaurice observed in 1957 that “a
State which is guilty of illegal conduct may be deprived of the necessary locus standi in
judicio for complaining of corresponding illegalities on the part of other States, especially if
these were consequential on or were embarked upon in order to counter its own illegality – in
short were provoked by it.”239 Bin Cheng, in his 1953 treatise on general principles applied
by international courts and tribunals, noted that the principle ex delicto is “generally upheld
by international tribunals.” 240 And international tribunals other than the Court have also
applied the clean hands doctrine, in some form, since at least the mid-nineteenth century.241
ii. Iran’s Sponsorship of Terrorism and Other Destabilizing
Conduct Should Cause the Court to Decline to Hear Iran’s
Claims
6.34 Applying the general principles of law described above to this case, the Court should
find Iran’s Application inadmissible and refuse as a preliminary matter to entertain Iran’s
claims. Unlike in Oil Platforms,242 the Court need not engage in a review of the merits of this
case to reach a judgment about the appropriate legal consequences of Iran’s conduct. The
wrongfulness.” Second Report on State Responsibility, Mr. James Crawford, Special Rapporteur, [1999] 2 Y.B.
INT’L L. COMM’N 3, 83, U.N. Doc. A/CN.4/SER.A/1999/Add.1 (Part 1) (US Annex 190). In reaching this
conclusion, Professor Crawford reasoned that the concept of clean hands related to “such procedural questions
as locus standi or the admissibility of claims,” which were not addressed in detail by the Draft Articles. Id. In
commentaries to the Articles, the ILC further explained that “[t]he principle that a State may not benefit from its
own wrongful act is capable of generating consequences in the field of State responsibility but it is rather a
general principle than a specific circumstance precluding wrongfulness.” Report of the International Law
Commission on the Work of Its Fifty-Third Session, [2001] 2 Y.B. INT’L L. COMM’N 1, 72, U.N. Doc.
A/CN.4/SER.A/2001/Add.1 (Part 2) (US Annex 191).
238 EDWIN BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD 713 (1915).
239 Fitzmaurice at 119.
240 CHENG at 155. Among other things, Bin Cheng cites The Montijo Case for the proposition that “no one can
be allowed to take advantage of his own wrong.” Id. at 149, citing 2 MOORE INT’L ARB. 1421, 1437 (1875).
241 See, e.g., Plama Consortium Ltd. v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Award ¶¶ 142-46
(Aug. 27, 2008) (US Annex 192) (relying on the principle of good faith and the “clean hands” principles ex turpi
causa non oritur actio and nemo auditur propriam turpitudinem allegans (“nobody can benefit from his own
wrong”) to bar an investor’s claim as a result of its bad acts); Tippetts et al. v. Iran et al., Case No. 7, Award No.
141-7-2 (June 22, 1984), 6 IRAN-U.S. CL. TRIB. REP. 219, 228 (US Annex 194) (recognizing the principle of
nullus commodum) (citing CHENG at 149); The Medea and The Good Return Cases (1865), 2 MOORE INT’L ARB.
1572, 1573 (because the claims “arose out of a transaction” – acts of piracy – “in which [the claimants] violated
the laws of the United States [and] disregarded solemn treaty obligations,” claimants forfeited their standing as
U.S. citizens before the claims commissioners).
242 See Oil Platforms, 2003 I.C.J. at 177-178, ¶¶ 29-30 (deciding that it could not make the findings sought by
the United States without delving into the merits of the case).
60
Court may – for the sole purpose of this preliminary “unclean hands” determination – accept
as true Iran’s allegations as to the measures taken by the United States. It need only review
the abundant evidence of Iran’s misconduct to find that the U.S. measures are insulated from
judicial scrutiny under the Treaty of Amity because they represent the United States’ attempt
to respond peacefully to Iran’s repeated unlawful actions.
6.35 Contrary to Iran’s suggestion in its Memorial, its unlawful actions are established by
far more than “mere allegation[s] of involvement by Iran in alleged terrorist acts”243 and do
not reflect simply the unilateral findings of the United States. Rather, evidence from a
multiplicity of sources – documented in the materials annexed to this Memorial – establishes
Iran’s sponsorship of, and support for, terrorist acts, including through proxies such as
Hezbollah, as well as its repeated violations of UN Security Council resolutions aimed at
Iran’s nuclear and ballistic missile programs and illicit arms trafficking.244 The United States’
position is fully consistent with, and supported by, the detailed judicial proceedings in the
Mykonos case in Germany, and the conclusions reached by organs of the UN, the EU, and
others as to Iran’s sponsorship of terrorism, which has resulted in terrorist bombings such as
the one in Beirut in 1983 that killed some 241 U.S. peacekeepers, the assassinations of
Iranian political dissidents and others in foreign countries, kidnappings, airplane hijackings,
and other violent acts aimed at the United States, its nationals, and others.245
6.36 The evidence of Iran’s internationally unlawful conduct makes plain the threat to the
international community that Iran’s actions have posed over the last three-plus decades – a
threat that continues to exist today.246 Recognizing that threat, and the specific threat to itself
and its nationals, the United States has taken a series of progressive measures intended to
counteract Iran’s actions and deter it from continuing on the course of conduct it has
undertaken.247 The United States’ right to invoke such measures as a means to peacefully
address Iran’s terroristic foreign policy must be viewed through the prism of Iran’s persistent
(and dangerous) refusal to conduct itself in accordance with international law.
243 Iran’s Memorial ¶ 5.44(f).
244 See supra Chapters 3 & 4.
245 See supra Chapter 3.
246 See supra Chapters 3 & 4.
247 See supra Chapter 4, Sec. A.
61
* * *
6.37 In his well-known opinion in Diversion of Water from the River Meuse, Judge Hudson
acknowledged the Court’s “freedom to consider principles of equity as part of the
international law it must apply,” and in doing so highlighted an “important principle of
equity” representative of the clean hands doctrine.248 The opinion stressed, however, the need
to make only “sparing application” of this general principle.249 The United States concurs in
this assessment. And “[y]et, in a proper case, and with scrupulous regard for the limitations
which are necessary, a tribunal bound by international law ought not to shrink from applying
a principle of such obvious fairness.”250
6.38 The United States submits that this case presents exactly the sort of exceptional
circumstances for which the clean hands doctrine was intended. It is difficult to fathom a
more extraordinary set of circumstances – in which a State that has sponsored terrorist attacks
and financed and supported terrorist organizations since at least 1983, and continues to be
regarded by its neighbors, the UN Security Council, and the broader international community
as a serial violator of international law, seeks to pursue claims before the Court alleging that
peaceful measures taken to respond to its own violations entitle it to reparations. Iran’s
claims, which derive directly from its own violations of international law, should therefore be
deemed inadmissible.251
248 Diversion of Water from the River Meuse (Netherlands v. Belgium), 1937 P.C.I.J. (ser. A/B), No. 70, at 77
(June 28) (Individual Opinion of Judge Hudson) (addresses the circumstance where two Parties, having
“assumed an identical or reciprocal obligation,” and where one Party seeks to take advantage of the nonperformance
of the other despite its own non-performance of the same obligation). While these are not precisely
the circumstances of this case, Judge Hudson’s opinion stands in support of the clean hands doctrine more
broadly, such as expressed in the Latin maxims nullus commodum capere de sua injuria propria and ex delicto
non oritur actio referenced above.
249 Id.
250 Id. (emphasis added).
251 Should the Court decide not to uphold, or otherwise withhold judgment on, this preliminary objection to the
admissibility of Iran’s Application, the United States reserves its right to raise these arguments again with
respect to the merits or to any reparation to which Iran asserts it is entitled.
62
MEASURES COVERED BY ARTICLE XX OF CHAPTER 7: THE TREATY OF AMITY FALL
OUTSIDE THE JURISDICTION OF THE COURT
7.1 Although Iran’s claims in this case largely concern U.S. measures relating to
terrorism-related litigation in U.S. courts, Iran also challenges Executive Order 13599.252
That Order blocks (or “freezes”) the property and interests in property of the Government of
Iran and Iranian financial institutions when such assets are subject to the United States’
jurisdiction. Iran claims that Executive Order 13599 breaches several provisions of the
Treaty,253 but it is evident as a threshold matter that the Executive Order is outside the scope
of the Treaty by the Treaty’s own terms.
7.2 As part of the United States’ sanctions program, Executive Order 13599 works in
conjunction with other U.S. and international sanctions and regulations that together address
a wide range of Iranian illicit activities, including arms trafficking, support for international
terrorism, and the pursuit of ballistic missile capabilities. Executive Order 13599 is thus
outside the scope of the Treaty of Amity by virtue of Article XX(1)(c) and (d), which supply
general exclusions for measures regulating the production and trafficking of arms and
military supplies and for measures protecting essential security interests.
7.3 Article XX(1) of the Treaty provides:
The present Treaty shall not preclude the application of measures:
(a) regulating the importation or exportation of gold or silver;
(b) relating to fissionable materials, the radio-active by-products thereof,
or the sources thereof;
(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly or
indirectly for the purpose of supplying a military establishment; and
(d) necessary to fulfill the obligations of a High Contracting Party for the
maintenance or restoration of international peace and security, or
necessary to protect its essential security interests.
7.4 First, as discussed in Section A and as the chapeau text makes plain, any measure
covered by any one of the subsections of Article XX(1) is excluded from the ambit of the
Treaty, and hence from the Court’s jurisdiction. Second, as discussed in Section B, Article
252 Executive Order 13599, Feb. 5, 2012, 77 Fed. Reg. 6659 (IM Annex 22). Executive Order 13599 is the only
U.S. blocking measure specifically referenced in Iran’s Memorial.
253 See Iran’s Memorial, ¶¶ 4.29, 5.12-5.14, 6.5-6.9, 6.19.
63
XX(1)(c) applies to Executive Order 13599 because the Order addresses Iran’s evasion of
U.S. and international sanctions targeting its support for terrorism, arms trafficking to
militant and terrorist groups, and pursuit of ballistic missile capabilities. Third, as discussed
in Section C, Article XX(1)(d) also applies to Executive Order 13599, because the Order is
necessary to protect the United States’ essential security interests in (1) preventing and
deterring terrorism and the financing and arming of terrorist groups; and (2) preventing the
advancement of Iranian ballistic missile capabilities.
Section A: The Exceptions in Article XX(1) Exclude Qualifying Measures from the
Court’s Jurisdiction
7.5 Article XX(1) states that “[t]he present Treaty shall not preclude the application of”
covered measures, thus placing such measures outside the scope of the Treaty. Therefore,
once Article XX(1) is determined to apply to a given measure, there can be no further dispute
as to the “interpretation or application” of any other Treaty provisions with respect to that
measure. Accordingly, where Article XX(1) is invoked, the Court’s jurisdiction is limited to
deciding, as an initial matter, whether the exclusions therein apply to the challenged
measure.254 If the answer is affirmative, jurisdiction ceases to exist with respect to any claims
predicated on the excluded measures.
7.6 In the Oil Platforms case, the United States left the invocation of the Article XX(1)(d)
“essential security” clause to the merits phase,255 but did so without conceding that this was
the only proper way to plead the provision (i.e., that Article XX(1)(d) could never pose a
jurisdictional question). In fact, the United States took care not to make such a categorical
254 Accord, e.g., EnCana Corp. v. Republic of Ecuador, UNCITRAL, LCIA Case No. UN3481, Award ¶¶ 140-
149 (Feb. 3, 2006) (US Annex 195) (excluding as outside the scope of the treaty and hence outside the tribunal’s
jurisdiction a claim arising out of a measure to which a similarly worded exception in the relevant treaty
applied).
255 Verbatim Record of the Public Sitting of the I.C.J. Held on Sept. 17, 1996, at 32-33, Oil Platforms (Iran v.
United States) (Mr. Crook for the United States). In Oil Platforms, the United States made a broader preliminary
objection to the effect that the entire subject matter of the dispute was outside the Treaty’s scope, because “the
1955 Treaty does not regulate the conduct of military hostilities, and therefore, that such conduct should never –
never – be the subject of any merits proceedings in this Court under the Treaty.” Verbatim Record of the Public
Sitting of the I.C.J. Held on Sept. 23, 1996, at 35-36, Oil Platforms (Iran v. United States) (Mr. Crook for the
United States). The United States cited Article XX(1)(d) as evidence that the Parties intended security matters
such as the use of force to fall outside the Treaty: the United States’ “preliminary objection suggested that, as a
jurisdictional matter, [the essential security] provision helped to show that Articles I, IV, and X, those invoked
by Iran, were not designed or intended to govern Iran’s claims regarding the use of force. This is because Article
XX(1)(d) manifested the parties’ intent to keep such matters outside the scope of the Treaty. We believe that
jurisdictional point remains valid.” Verbatim Record of the Public Sitting of the I.C.J. Held on Sept. 17, 1996, at
32-33, Oil Platforms (Iran v. United States) (Mr. Crook for the United States).
64
claim, arguing that essential security “neither authorizes nor disallows any particular measure
that is necessary to protect a Party’s essential security interest,” but rather “removes such
measures from the scope, operation and application of the Treaty.”256
7.7 Here, the Court need make no findings going to the merits of Iran’s claims in order to
hold that Executive Order 13599 is excluded under Article XX(1).257 As the Court held in its
Oil Platforms Preliminary Objections Judgment, Article XX(1)(d) of the Treaty
could be interpreted as excluding certain measures from the actual scope
of the Treaty and, consequently, as excluding the jurisdiction of the Court
to test the lawfulness of such measures.258
The Court in Oil Platforms went on to note that it had treated a substantively identical clause
in the Nicaragua case as affording a defense on the merits, and that the United States was
content to leave the issue to the merits phase in the case before it. The Court “accordingly
[took] the view” that the provision “does not restrict its jurisdiction in the present case, but is
confined to affording the Parties a possible defence on the merits to be used should the
occasion arise.”259
7.8 The earlier Nicaragua Merits Judgment similarly did not bar consideration of the
equivalent clause as a jurisdictional objection. The Court in that case did not explicitly
engage with the question of whether a measure, once found to fall within an exception, could
be excluded from the Court’s jurisdiction. Rather, the Court held that it had jurisdiction to
determine whether the exceptions article applied to the challenged measures.260
7.9 In light of the above, the Court may consider a preliminary jurisdictional objection
based on Article XX(1) in this case. Moreover, even were Article XX(1) found not to afford a
jurisdictional objection, this would not bar the Court from considering an objection under the
article as a preliminary matter. Article 79(1) of the Rules refers to the submission of “[a]ny
objection by the respondent to the jurisdiction of the Court or to the admissibility of the
256 Rejoinder Submitted by the United States of America (Mar. 23, 2001), ¶ 4.02, Oil Platforms (Iran v. United
States).
257 This is particularly so with regard to Article XX(1)(c) (which was not invoked in Oil Platforms), as to which
the Court need only make a finding that the Executive Order was a measure regulating arms production, arms
trafficking, or military supply, without considering any of the facts that Iran has alleged as the basis for its
claims.
258 Oil Platforms, 1996 I.C.J. at 811, ¶ 20.
259 Id. (emphasis added).
260 Military and Paramilitary Activities, 1986 I.C.J. at 116, ¶ 222.
65
application, or other objection the decision upon which is requested before any further
proceedings on the merits.” As a successful invocation of Article XX(1) would remove any
need for the Court to further consider the measures excluded under the article, the Court
should decide the question before proceeding to any merits phase, whether or not it ultimately
considers the question to be jurisdictional in nature. Given that a decision on the issue will
not require the Court to engage with the merits of Iran’s claims, it is suitable for decision
now, as a preliminary matter, without joinder to the merits.
Section B: Executive Order 13599 Is Excluded from the Treaty Pursuant to
Article XX(1)(c) as a Measure Regulating Arms Production, Arms
Trafficking, and Military Supplies
7.10 Executive Order 13599 is excluded from the scope of the Treaty pursuant to Article
XX(1)(c). Subsection (c) supplies a general exclusion for any measures “regulating the
production of or traffic in arms, ammunition and implements of war, or traffic in other
materials carried on directly or indirectly for the purpose of supplying a military
establishment.” This exclusion applies to Executive Order 13599 because the Order was
imposed to address Iran’s evasion of U.S. and international sanctions relating to its
development of ballistic missiles and its provision of arms and other support to militant and
terrorist groups.
7.11 Iran’s pursuit of ballistic missile capabilities is by now well-documented. At the time
of Executive Order 13599, it was widely known that Iran was developing ballistic missiles in
violation of multiple resolutions of the UN Security Council.261 For example, at a meeting of
the UN Security Council, the representative from France stated, “[t]he facts are
overwhelming; there is no room for doubt . . . Iran has developed a programme for missiles
capable of carrying nuclear warheads.”262 UN Security Council resolution 2231 (endorsing
the JCPOA) specifically called upon Iran to refrain from undertaking any activity related to
261 See supra Chapter 3, Sec. D & Chapter 4, Sec. A. See also, e.g., S.C. Res. 1929, ¶¶ 1, 9 (US Annex 110); 76
Fed. Reg. at 72758 (US Annex 152) (Annex 152) (“Iran also continues to defy the international community by
pursuing nuclear capabilities and developing ballistic missiles in violation of seven UNSCRs.” (emphasis
added)).
262 UNSC, 6335th Mtg., U.N. Doc. S/PV.6335, at p. 7 (June 9, 2010) (US Annex 196) (statement of France)
(also noting that “Iran has worked on advanced military studies that are the missing link between enrichment
and the ballistic missile programme, in particular on building a delivery vehicle in which a nuclear warhead can
be placed . . . .”).
66
ballistic missiles capable of delivering nuclear weapons.263 Nevertheless, Iran today persists
in developing and testing ballistic missiles.264 Reflective of the serious concerns over Iran’s
pursuit of ballistic missiles, the United States continues to impose sanctions relating to Iran’s
ballistic missile program.265
7.12 Iran also has a longstanding history of supplying arms and other support to militant
and terrorist groups abroad.266 Iran has routinely provided arms and ammunition, as well as
funding and training, to a number of terrorist or militant organizations, including the Taliban,
Hezbollah, Hamas, Palestinian Islamic Jihad, and, more recently, the Houthis in Yemen.267
Iran’s arms trafficking activities are undertaken in violation of binding resolutions of the UN
Security Council, which since 2007 has sharply restricted all sales or transfers of
conventional arms by the Iranian government and Iranian nationals.268
7.13 In particular, Iran relies on the IRGC-QF – a branch of the Iranian Revolutionary
Guards Corps and an element of the Iranian military establishment – to cultivate and support
terrorist and militant groups abroad.269 The United States has blocked the assets of the IRGCQF
pursuant to Executive Order 13224, one of its terrorism-related sanctions authorities,
263 See, e.g., S.C. Res. 2231, ¶ 7 & Annex B, ¶ 3 (US Annex 122) (calling upon Iran “not to undertake any
activity related to ballistic missiles designed to be capable of delivering nuclear weapons”). See also id., ¶ 7 &
Annex B ¶ 4 (requiring States to obtain the UN Security Council’s permission “in advance on a case-by-case
basis” before providing to Iran items, materials, equipment, goods and technology listed in the Missile Control
Technology Regime, and any other items “that the State determines could contribute to the development of
nuclear weapon delivery systems”).
264 See supra Chapter 3, Sec. D.
265 See supra ¶ 4.14.
266 See supra Chapter 3, Secs. C & D.
267 See, e.g., 76 Fed. Reg. at 72757-72758 (US Annex 152) (“Iran remains the most active of the listed state
sponsors of terrorism, routinely providing substantial resources and guidance to multiple terrorist organizations.
Iran has provided extensive funding, training, and weaponry to Palestinian terrorist groups, including Hamas
and the Palestinian Islamic Jihad (“PIJ”). . . . The Qods Force [of the Islamic Revolutionary Guards Corps]
reportedly has been active in the Levant, where it has a long history of supporting [Hezbollah’s] military,
paramilitary, and terrorist activities, and provides [Hezbollah] with as much as $200 million in funding per year.
Additionally, the Qods Force provides the Taliban with weapons, funding, logistics, and training in support of
anti-U.S. and anti-coalition activity. Information dating from at least 2006 indicates that Iran has arranged
frequent shipments to the Taliban of small arms and associated ammunition, rocket propelled grenades, mortar
rounds, 107 mm rockets, and plastic explosives.” (emphasis added)). See also supra Chapter 4, Sec. A.
268 See, e.g., S.C. Res. 2231, ¶ 7 & Annex B, ¶ 6(b) (US Annex 122) (providing that all States are to “[t]ake the
necessary measures to prevent, except as decided otherwise by the UN Security Council in advance on a caseby-
case basis, the supply, sale, or transfer of arms or related materiel from Iran by their nationals or using their
flag vessels or aircraft, and whether or not originating in the territory of Iran,” for a specified period) (Annex
122); S.C. Res. 1747, ¶ 5 (US Annex 101) (deciding “that Iran shall not supply, sell or transfer directly or
indirectly . . . any arms or related material, and that all States shall prohibit the procurement of such items from
Iran ”).
269 See, e.g., 76 Fed. Reg. at 72757-72758 (Annex 152).
67
since 2007, in response to the unit’s provision of support, including frequent arms shipments,
to the Taliban, Hezbollah, and other terrorist or militant organizations.270 Just before the
adoption of Executive Order 13599, the U.S. Treasury Department noted that the IRGC and
the IRGC-QF nonetheless continued to use deceptive financial practices to evade sanctions,
engaging “in seemingly legitimate activities that provide cover for intelligence operations and
support terrorist groups such as [Hezbollah], Hamas, and the Taliban.”271
7.14 Executive Order 13599 builds on and complements earlier international and U.S.
sanctions addressing these illicit activities.272 Prior to Executive Order 13599, these measures
included requirements to block the assets of specific Iranian agencies, institutions, and
individuals that engaged in or supported terrorism or Iran’s ballistic missile program.273 The
United States has long used blocking measures as a means to deter illicit conduct,274 and the
UN Security Council has both required States to apply asset freezing measures in a number of
circumstances and recognized in various contexts that asset freezes are a “significant tool” for
combatting activity that it has determined constitutes a threat to international peace and
security.275
270 U.S. Treasury Dep’t Oct. 25, 2007 Fact Sheet (US Annex 147); see also S.C. Res. 1747 (Annex 101)
(imposing sanctions on the commander of the IRGC-QF).
271 76 Fed. Reg. at 72762 (Annex 152).
272 See supra Chapter 4, Sec. A. In particular, Executive Order 13599 refers to the earlier Executive Order
12957, declaring a national emergency with respect to Iran. That Order was issued “in response to actions and
policies of the Government of Iran, including support for international terrorism, efforts to undermine the
Middle East peace process, and the acquisition of weapons of mass destruction and the means to deliver them.”
President William J. Clinton, Message to the Congress on Iran, 34 WEEKLY COMP. PRES. DOCS. 446 (Mar. 16,
1998) (US Annex 193).
273 See, e.g., Executive Order 13224 (US Annex 134) (blocking property and prohibiting transactions with
persons who commit, threaten to commit, or support terrorism); Executive Order 13382, 70 Fed. Reg. 38567
(June 28, 2005) (US Annex 197) (blocking property of those who engage in or support proliferation of
“weapons of mass destruction or their means of delivery (including missiles capable of delivering such
weapons)”). The UN Security Council also imposed asset freezes relating to these activities. See, e.g., S.C. Res.
1737, ¶ 12 (US Annex 100) (deciding that “all States shall freeze the funds, other financial assets and economic
resources . . . that are owned or controlled” by designated persons and entities involved in the nuclear and
ballistic missile program); S.C. Res. 1747 (US Annex 101) (adding additional entities and persons, including
IRGC affiliates, to the list of sanctioned persons); S.C. Res. 1803 (US Annex 102) (further intensifying
sanctions); S.C. Res. 1929 (US Annex 110) (similar); S.C. Res. 2231, ¶ 7(b) & Annex B ¶ 6(c) (US Annex 122)
(deciding that, for a period of time following adoption of the JCPOA, all States shall continue asset freezes of
certain designated individuals and entities).
274 See, e.g., Szubin Testimony (US Annex 156) (explaining that, following the JCPOA, the United States would
maintain and vigorously enforce longstanding sanctions targeting, inter alia, Iran’s support for terrorist groups,
Iran’s missile program, and the Iranian Revolutionary Guards Corps).
275 E.g., S.C. Res. 1373, ¶ 1 (US Annex 81) (requiring States to “freeze without delay funds and other financial
assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or
facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons;
68
7.15 In the period leading up to Executive Order 13599, the international community’s
sanctions on Iran became increasingly strict in response to Iran’s intransigence, and Iran
increased its efforts to evade detection using complex financial transactions and front
companies to mask its unlawful activities. The U.S. Treasury Department in November 2011
found that Iran was relying on an array of agencies, instrumentalities, and financial
institutions to evade sanctions and to further its support for terrorism abroad and its pursuit of
ballistic missiles domestically.276 These entities included a number of well-known Iranian
financial institutions, such as Bank Sepah,277 Bank Melli,278 Bank Mellat,279 Bank Saderat,280
and the Central Bank of Iran (Bank Markazi),281 among others.282 The UN Security Council
also recognized that Iranian banks were being used to pursue illicit activity, calling on all
and of persons and entities acting on behalf of, or at the direction of such persons and entities”); S.C. Res. 1989,
U.N. Doc. S/RES/1989, prmbl. & ¶ 1 (June 17, 2011) (US Annex 199) (“Emphasizing that sanctions are an
important tool under the Charter . . . and stressing in this regard the need for robust implementation of the [asset
freeze] measures in paragraph 1 of this resolution as a significant tool in combating terrorist activity”); S.C. Res.
1807, U.N. Doc. S/RES/1807, prmbl. & ¶ 11 (Mar. 31, 2008) (US Annex 200) (determining that the situation in
the DRC continues to constitute a threat to international peace and security in the region, deciding that all States
shall freeze the funds, other financial assets and economic resources on their territories of persons and entities
designated by the sanctions committee); S.C. Res. 2293, U.N. Doc. S/RES/2293, ¶ 5 (June 23, 2016) (US Annex
201) (renewing resolution 1807); S.C. Res. 2140, U.N. Doc. S/RES/2140, prmbl. & ¶ 11 (Feb. 26, 2014) (US
Annex 202) (determining that the situation in Yemen constitutes a threat to international peace and security in
the region, and deciding that all Member States shall freeze without delay all funds, financial assets and
economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the
individuals or entities designated by the sanctions committee); S.C. Res. 2342, U.N. Doc. S/RES/2342, ¶ 2 (Feb.
23, 2017) (US Annex 203) (renewing resolution 2140).
276 76 Fed. Reg. at 72756 (US Annex 152) (designating Iran as a “jurisdiction of primary money laundering
concern” on the basis of its support for terrorism, pursuit of nuclear and ballistic missile capability, use of
deceptive financial practices to evade sanctions, serious deficiencies in its controls to combat money laundering
and terrorist finance, and lack of cooperation with U.S. law enforcement and regulatory officials).
277 Id. at 72759 (noting that Bank Sepah provided “direct and extensive financial services to Iranian entities
responsible for developing ballistic missiles,” including the Aerospace Industries Organization and the Shahid
Hemat Industrial Group).
278 Id. (noting that Bank Melli “facilitated numerous purchases of sensitive materials for Iran’s nuclear and
missile programs on behalf of UN-designated entities”).
279 Id. (noting public findings by the United States, the United Kingdom, and the UN Security Council that Bank
Mellat had been extensively involved in financing Iran’s ballistic missile program).
280 Id. at 72758 (noting that Bank Saderat had been used to support terrorist organizations, and that from 2001 to
2006 it “transferred $50 million from the Central Bank of Iran through its subsidiary in London to its branch in
Beirut for the benefit of [Hezbollah] fronts in Lebanon that support acts of violence”).
281 Id. at 72760 (finding that the Central Bank of Iran had used a variety of payment schemes to evade terrorismand
proliferation-related sanctions and had deliberately attempted to conceal the involvement of sanctioned
Iranian banks in international transactions).
282 Id. (referring to Post Bank, which operated on behalf of Bank Sepah; the Iranian-owned German bank EIH
which served Bank Mellat, Post Bank, and others; Bank Refah, which provided services to the sanctioned
Iranian Ministry of Defense and Armed Forces Logistics; the Bank of Industry and Mines, which provided
services to Bank Mellat and EIH; and Ansar Bank and Mehr Bank, which served the IRGC).
69
States to exercise vigilance with respect to Iranian banks,283 and identifying certain banks that
were involved in Iran’s nuclear and ballistic missile programs.284
7.16 In light of this evidence, the U.S. Treasury Department concluded that Iran and
Iranian financial institutions were engaged in a concerted effort to evade U.S. and multilateral
sanctions targeting, inter alia, weapons proliferation and the provision of support to terrorist
groups. In November 2011, the Treasury Department stated:
As a result of the strengthened U.S. sanctions and similar measures taken
by the United Nations and other members of the global community, Iran
now faces significant barriers to conducting international transactions. In
response, Iran has used deceptive financial practices to disguise both the
nature of transactions and its involvement in them in an effort to
circumvent sanctions. This conduct puts any financial institution involved
with Iranian entities at risk of unwittingly facilitating transactions related
to terrorism, proliferation, or the evasion of U.S. and multilateral
sanctions. Iranian financial institutions, including the Central Bank of Iran
(“CBI”), and other state-controlled entities, willingly engage in deceptive
practices to disguise illicit conduct, evade international sanctions, and
undermine the efforts of responsible regulatory agencies around the
world.285
7.17 These findings concerning Iran’s efforts to evade sanctions targeting its illicit activity
– in particular the provision of arms and other support to terrorist groups and the continued
pursuit of ballistic missile capabilities – led directly to the blocking measures established by
Executive Order 13599. This cause and effect is evident from the fact that Section 1245 of
the 2012 National Defense Authorization Act (2012 NDAA), which Executive Order 13599
implemented, refers directly to the U.S. Treasury Department’s November 2011 findings that
the entire Iranian financial sector posed risks relating to the support of terrorism and to
283 S.C. Res. 1929, prmbl. (US Annex 110) (“recalling in particular the need to exercise vigilance over
transactions involving Iranian banks, including the Central Bank of Iran, so as to prevent such transactions
contributing to proliferation-sensitive activities, or to the development of nuclear weapon delivery systems”);
S.C. Res. 1803, ¶ 10 (US Annex 102) (“Calls upon all States to exercise vigilance over the activities of financial
institutions in their territories with all banks domiciled in Iran, in particular with Bank Melli and Bank Saderat,
and their branches and subsidiaries abroad, in order to avoid such activities contributing to the proliferation
sensitive nuclear activities, or to the development of nuclear weapon delivery systems” (emphasis added)).
284 See, e.g., S.C. Res. 1929, Annex I, p. 11 (US Annex 110) (“Over the last seven years, Bank Mellat has
facilitated hundreds of millions of dollars in transactions for Iranian nuclear, missile, and defense entities.”);
S.C. Res. 1747, Annex I, p. 5 (US Annex 101) (finding that Bank Sepah was a key provider of financial services
to two Iranian firms listed by the UN Security Council for their role in Iran’s ballistic missile programs).
285 76 Fed. Reg. at 72760 (US Annex 152) (emphasis added).
70
weapons proliferation.286 The relevant section of the 2012 NDAA therefore directed the
President, pursuant to applicable law, to block all assets of Iranian financial institutions
within the United States or in the possession or control of U.S. persons.287 The Act explicitly
recognized the connection between the deceptive financial practices used by Iranian
institutions and the underlying illicit activities of the Iranian government, stating:
The financial sector of Iran, including the Central Bank of Iran, is
designated as a primary money laundering concern . . . because of the
threat to government and financial institutions resulting from the illicit
activities of the Government of Iran, including its pursuit of nuclear
weapons, support for international terrorism, and efforts to deceive
responsible financial institutions and evade sanctions.288
7.18 Executive Order 13599 directly addressed these concerns by blocking all property
within the United States’ jurisdiction of the Iranian government and Iranian financial
institutions.289 In stating the motivations for these asset freezes, the Order refers specifically
to “the deceptive practices of the Central Bank of Iran and other Iranian banks to conceal
transactions of sanctioned Parties.”290 The focus on “deceptive practices” stated in the Order
follows from the concern, documented extensively in the above findings, that Iran, with the
assistance of Iranian financial institutions, had bolstered its efforts to hide its provision of
material support (including arms) to terrorist and militant organizations and its pursuit of
ballistic missile capability.291
7.19 In light of the foregoing, the blocking requirements imposed in Executive Order
13599 constitute measures “regulating the production of or traffic in arms, ammunition or
286 National Defense Authorization Act for Fiscal Year 2012, Section 1245(a)-(b), Pub. L. 112-239, 126 Stat.
2006 (IM Annex 17) (quoting the findings of the Treasury’s Financial Crimes Enforcement Network, and
adding that “[o]n November 22, 2011, the Under Secretary of the Treasury for Terrorism and Financial
Intelligence, David Cohen, wrote, ‘Treasury is calling out the entire Iranian banking sector, including the
Central Bank of Iran, as posing terrorist financing, proliferation financing, and money laundering risks for the
global financial system.”).
287 Id., § 1245(c).
288 Id., § 1245(b) (emphasis added).
289 Subsequently, the Secretary of the Treasury, acting pursuant to Executive Order 13599, has identified
additional Iranian entities that assisted in circumventing existing sanctions. See, e.g., U.S. Dep’t of the Treasury
Press Release, “Treasury Targets Iranian Attempts to Evade Sanctions” (May 9, 2013) (US Annex 204); U.S.
Dep’t of the Treasury Press Release, “Treasury Exposes Iranian Attempts to Evade Oil Sanctions” (Sept. 6,
2013) (US Annex 205).
290 Exec. Order No. 13599, 77 Fed. Reg. 6659 (Feb. 5, 2012) (IM Annex 22).
291 See 76 Fed. Reg. at 72756 (US Annex 152); National Defense Authorization Act for Fiscal Year 2012,
Section 1245(a)-(b), Pub. L. 112-239, 126 Stat. 2006 (IM Annex 17).
71
implements of war, or traffic in other materials carried on directly or indirectly for the
purpose of supplying a military establishment,” within the meaning of Article XX(1)(c).
These blocking measures form part of a regulatory scheme – encompassing U.S and
international sanctions – designed to address Iranian arms trafficking, its ballistic missile
program, and its support for terrorism. The asset freezes imposed by the United States on Iran
and Iranian entities are designed to deter these activities by means of financial pressure.
Executive Order 13599 thus works in conjunction with other proliferation- and terrorismrelated
measures to deter – and thus to “regulate” within the meaning of the Treaty – Iranian
pursuit of ballistic missiles, its traffic in such missiles or their component parts, its traffic in
arms and supplies to terrorist and militant organizations abroad, and traffic in arms and other
military supplies to sanctioned entities within the Iranian military establishment, such as the
IRGC-QF.
7.20 For these reasons, the blocking measures challenged by Iran fall within the exclusion
in Article XX(1)(c) of the Treaty of Amity, and the Court therefore has no jurisdiction to
decide whether these measures are consistent with any other provisions of the Treaty.
Section C: Executive Order 13599 Is Excluded from the Treaty Under Article XX(1)(d)
as a Measure Necessary to Protect the United States’ Essential Security
Interests
7.21 In addition to being excluded from the Treaty’s scope pursuant to the provisions of
Article XX(1)(c), Executive Order 13599 is also placed outside the Treaty by virtue of
Article XX(1)(d) because it is a measure necessary to protect the United States’ essential
security interests in preventing terrorism and the financing and arming of terrorist groups, and
in halting the advancement of Iran’s ballistic missile capability.
i. The United States Has Essential Security Interests in
Preventing Terrorism and Terrorist Financing, and in Halting
the Advancement of Iran’s Ballistic Missile Program
7.22 The United States unquestionably has an essential security interest in preventing
terrorist attacks, including by preventing the provision of arms, materiel, training, and funds
to terrorist groups and suppressing the use of money laundering and other deceptive financial
practices to finance terrorism. It has a similarly clear essential security interest in halting Iran
from advancing its ballistic missile program.
7.23 Thousands of U.S. nationals have been killed or wounded in terrorist attacks in the
past decades, including in attacks carried out by groups and individuals sponsored and
72
directed by Iran.292 The international community has long condemned such acts of terrorism,
and State involvement in terrorism, in the strongest possible terms. For example, in 1994 the
UN General Assembly adopted a resolution urging States “to take all appropriate measures at
the national and international levels to eliminate terrorism,” stating that the General
Assembly was
Deeply disturbed by the world-wide persistence of acts of international
terrorism in all its forms and manifestations, including those in which
States are directly or indirectly involved, which endanger or take innocent
lives, have a deleterious effect on international relations and may
jeopardize the security of States, . . . [and]
Convinced . . . that the suppression of acts of international terrorism,
including those in which States are directly or indirectly involved, is an
essential element for the maintenance of international peace and
security.293
7.24 The UN Security Council reaffirmed its determination that acts of international
terrorism constitute a threat to international peace and security in 2001, and declared that the
“acts, methods, and practices of terrorism are contrary to the purposes and principles of the
United Nations” and that “knowingly financing, planning and inciting terrorist acts are also
contrary to the purposes and principles of the United Nations.”294 It accordingly mandated
that States “[p]revent and suppress the financing of terrorist acts” and that they freeze “funds
and other financial assets or economic resources” of those who commit or support
terrorism.295 The Council also recognized the need for States to complement international
cooperation by taking additional measures to prevent and suppress, in their territories through
all lawful means, the financing and preparation of any acts of terrorism.296 The UN Security
Council has since repeatedly recognized that terrorism poses a threat to international peace
292 See supra Chapter 3. See also, e.g., The Foreign Sovereign Immunities Act: Hearing Before the Subcomm. on
Courts and Admin. Practice of the S. Comm. on the Judiciary, 103rd Cong., at p. 22-23 (1994) (statement of
Senator Arlen Specter, sponsor of Senate Bill 825 amending the Foreign Sovereign Immunities Act) (noting
that, between 1980 and 1992, American casualties in international terrorist incidents amounted to over one
thousand dead or wounded) (US Annex 206).
293 G.A. Res. 49/60, at 1-3 (US Annex 179) (underlining in original; italics added); see also S.C. Res.
S/RES/1373, ¶ 3 (US Annex 81) (“reaffirming” that acts of international terrorism “constitute a threat to
international peace and security”).
294 S.C. Res. 1373, prmbl & ¶ 5 (US Annex 81).
295 Id. ¶ 1.
296 Id., prmbl.
73
and security, 297 and that “countering this threat requires collective efforts on national,
regional, and international levels.”298
7.25 The international community also recognizes the danger of permitting Iran’s pursuit
of ballistic missile capabilities. As discussed in the preceding section, the UN Security
Council has explicitly called upon Iran “not to undertake any activity related to ballistic
missiles designed to be capable of delivering nuclear weapons.”299 In the wake of Iran’s
March 2016 ballistic missile launches, the UN Secretary General called on Iran “to refrain
from conducting such launches.”300 For its part, the United States has been clear in voicing its
conviction that Iran’s ballistic missile program poses a “fundamental threat[] to the region
and beyond.”301
7.26 As the Court held in Nicaragua, the concept of essential security interests “certainly
extends beyond the concept of an armed attack, and has been subject to very broad
interpretations in the past.”302 The interests identified here – the prevention of terrorism and
terrorist financing and the prevention of ballistic missile proliferation – must on any view
297 S.C. Res. 1455, U.N. Doc. S/RES/1455, prmbl. (Jan. 17, 2003) (US Annex 207); S.C. Res. 1963, U.N. Doc.
S/RES/1963, prmbl. (Dec. 20, 2010) (US Annex 208); S.C. Res. 2129, U.N. Doc. S/RES/2129, prmbl. (Dec. 17,
2013) (US Annex 209); S.C. Res. 2178, U.N. Doc. S/RES/2178, prmbl. (Sept. 24, 2014) (US Annex 210); S.C.
Res. 2253, prmbl. (US Annex 182); S.C. Res. 2341, U.N. Doc. S/RES/2341, prmbl. (Feb. 13, 2017) (US Annex
211).
298 S.C. Res. 2253, prmbl. (US Annex 182); S.C. Res. 2341, prmbl. (US Annex 211).
299 S.C. Res. 2231, ¶ 7 & Annex B, ¶ 3 (US Annex 122).
300 UN Secretary General, First Implementation Report, at 3 (US Annex 123).
301 Statement of Thomas A. Shannon, Jr., Under Secretary for Political Affairs, U.S. Dep’t of State, Before the
Senate Foreign Relations Comm., Iran’s Recent Actions and Implementation of the JCPOA, at 1 (Apr. 5, 2016),
available at https://2009-2017.state.gov/p/us/rm/2016/255510.htm (last visited Apr. 23, 2017) (US Annex 212)
(“While we are encouraged by Iran’s adherence to its nuclear commitments thus far, I assure you that the
Administration shares your concerns about the government of Iran’s actions beyond the nuclear issue, including
its destabilizing activities in the Middle East and its human rights abuses at home. Iran’s support for terrorist
groups like [Hezbollah], its assistance to the Assad regime in Syria and the Houthi rebels in Yemen, and its
ballistic missile program are at odds with U.S. interests, and pose fundamental threats to the region and
beyond.”) (emphasis added); see also Szubin Testimony (US Annex 156); United States Mission to the United
Nations, Remarks of U.S. Ambassador Power at the Security Council Stakeout Following Consultations on Iran
(Mar. 14, 2016), available at https://2009-2017-usun.state.gov/remarks/7187 (last visited Apr. 23, 2017) (US
Annex 213) (condemning Iran’s ballistic missile launches as “dangerous, destabilizing, and provocative,” and
stating that “[g]iven the multiple, interrelated conflicts in the Middle East today, such launches – accompanied
by strident and militaristic rhetoric – undermine prospects for peace. . . . Beyond just destabilizing the region,
these launches were also in defiance of provisions of UN Security Council Resolution 2231, the resolution that
came into effect on January 16, on Implementation Day for the JCPOA.”); U.S. Treasury Dep’t Jan. 17, 2016
Press Release (US Annex 124) (quoting Under Secretary Adam J. Szubin’s statement that “Iran’s ballistic
missile program poses a significant threat to regional and global security, and it will continue to be subject to
international sanctions.”).
302 Military and Paramilitary Activities, 1986 I.C.J. at 117, ¶ 224.
74
qualify under the provision. They have been recognized as essential not only by the United
States, but by the UN Security Council and the broader international community.
ii. Executive Order 13599 Is Necessary to Protect the United
States’ Essential Security Interests in Preventing and Deterring
Terrorist Attacks and Preventing the Advancement of Iran’s
Ballistic Missile Program
7.27 Executive Order 13599 is a measure necessary to protect the essential security
interests identified in the preceding section, and the Court should accord substantial
deference to the United States’ own determination to that effect. As the Court noted in its
2008 Judgment in Djibouti v. France, the Treaty of Amity’s essential security clause affords
the invoking State “wide discretion”:
[W]hile it is correct, as France claims, that the terms of Article 2 [of the
treaty at issue in the case] provide a State to which a request for assistance
has been made with a very considerable discretion, this exercise of
discretion is still subject to the obligation of good faith codified in Article
26 of the 1969 Vienna Convention on the Law of Treaties [citations
omitted]; for the competence of the Court in the face of provisions giving
wide discretion, see [citations to Nicaragua Merits Judgment ¶ 222, Oil
Platforms Merits Judgment ¶ 43].303
7.28 The history of this Treaty and similar FCN treaties confirms the Court’s
interpretation. The Sullivan Study, a study commissioned by the U.S. Department of State to
provide commentary and analysis concerning the provisions of U.S. FCN treaties, discusses
the “broad freedom of action extended to each treaty partner by the essential security
reservation.”304 The negotiating history of the present Treaty is consistent with that view of
the clause: in responding to a proposed Iranian amendment to Article II(1) of the Treaty to
provide the Parties with latitude with respect to internal safety regulations, the State
Department noted that “[s]ecurity interests” were already “provided for in XX-1-d,” and that
the “Treaty fully recognizes [the] paramount right [of the] state [to] take measures to protect
303 Mutual Assistance in Criminal Matters, 2008 I.C.J. at 229, ¶ 145 (emphasis added); see also Rejoinder
Submitted by the United States of America (Mar. 23, 2001), ¶¶ 4.24-4.35, Oil Platforms (Iran v. United States)
(arguing that the Court “should allow the Party invoking Article XX(1)(d) a measure of discretion in its
application”).
304 CHARLES H. SULLIVAN, U.S. DEP’T OF STATE, STANDARD DRAFT TREATY OF FRIENDSHIP, COMMERCE AND
NAVIGATION: ANALYSIS AND BACKGROUND 308 (1981) (hereinafter “SULLIVAN STUDY”) (US Annex 214).
Both parties have submitted excerpts from the Sullivan Study. Iran has submitted pages 1-2, 11, 59-68, 98-123,
170-83, 206-21, 270-97, 315-26, and 369-73 in its Annex 20, and the United States here submits pages 124-28,
260-69, and 302-09 as its Annex 214. Where the Sullivan Study is referenced in this pleading, the appropriate
citation is provided to the annex containing the relevant pages.
75
itself and public safety.”305
7.29 As the United States previously stated in the Oil Platforms briefing concerning the
history and context of Article XX(1)(d), records concerning other FCN treaties from the same
time period also make clear that the essential security clause affords the treaty parties ample
space to adopt national security measures. 306 For example, in FCN negotiations with
Germany carried out in the same year as the start of the negotiations with Iran, the United
States explained that the essential security clause’s “language had been drafted in such a
manner as to leave a wide area of discretion to both parties in order to allow for necessary
action over an indefinite future,” emphasizing that the words “necessary” and “essential” had
been “added to emphasize that the reservation was not to be invoked in a frivolous
manner.”307 In response to a question from the German side as to whether the clause was
justiciable, the United States responded that “national as well as international courts would
probably give very heavy weight to arguments presented by the government invoking the
reservation and would have difficulty in finding a justiciable issue.”308
7.30 In short, while the essential security clause in this Treaty is not “self-judging,” its
history and context, taken together with the Court’s own view as expressed in Mutual
305 Telegram No. 1561 from U.S. Dep’t of State to U.S. Embassy Tehran (Feb. 15, 1955) (US Annex 215).
306 See Counter-Memorial and Counter-Claim Submitted by the United States of America (June 23, 1997),
¶¶ 3.23-3.38, Oil Platforms (Iran v. United States); Message from the President of the United States
Transmitting a Treaty of Friendship, Commerce, and Navigation Between the United States of America and the
Republic of China, at 3, 80th Cong. (Mar. 20, 1947) (US Annex 216) (State Department report to the U.S.
Senate on the China FCN, noting that “exceptions also are included to give the two parties the requisite freedom
of action in times of national emergency” (emphasis added)); Hearing Before a Subcomm. of the S. Comm. on
Foreign Relations on a Treaty of Friendship, Commerce, and Navigation Between the United States of America
and the Republic of China, at 30, 80th Cong. (1948) (statement of Charles Bohlen, Dep’t of State) (US Annex
217) (noting that “certain important subjects, notably . . . the ‘essential interests of the country in time of
national emergency’, are specifically excepted from the purview of the Treaty. In view of the above, it is
difficult to conceive of how [the compromissory clause] could result in the Government’s being impleaded in a
matter in which it might be embarrassed.”); 99 CONG. REC. 8577, 9315 (1953) (US Annex 218) (in debate
concerning ratification of several FCN treaties, U.S. Senator Hickenlooper states that “[t]hese treaties have been
formulated . . . to avoid any interference with or qualifications of the right of the United States to apply such
security measures as it may find necessary. . . . Each of the treaties [then under consideration] . . . contains a
general reservation making it clear that nothing in the treaty shall be deemed to affect the right of either party to
apply measures ‘necessary to protect its essential security interests.’”); Dispatch No. 238 from U.S. Embassy
The Hague to U.S. Dep’t of State, at 2 (Sept. 15, 1954) (US Annex 219) (in negotiating the Dutch FCN treaty,
the U.S. delegation “emphasized that the presence in the Treaty of an ample security reservation was . . .
deemed essential by the United States,” resisting any attempt to narrow it and “emphasiz[ing] that each Party
would have to determine, according to its own discretion, what was essential from the viewpoint of its security
interests”).
307 Dispatch No. 2254 from U.S. High Commission, Bonn to U.S. Dep’t of State, at 1-2 (Feb. 17, 1954) (US
Annex 220) (emphasis added).
308 Id. at 3 (emphasis added).
76
Assistance, indicate that invocation of the clause calls for a deferential review.
7.31 With respect to the present case, the essential-security rationale for adopting
Executive Order 13599 is evident. As indicated in the preceding section, Executive Order
13599 implements the sanction required by Section 1245(c) of the 2012 NDAA.309 Among
the Congressional findings included in Section 1245 is a reference to the U.S. Treasury
Department’s November 2011 finding (discussed in the preceding section) identifying Iran as
a jurisdiction of “primary money laundering concern,” and the statement of the Under
Secretary of the Treasury for Terrorism and Financial Intelligence that the “entire Iranian
banking sector, including the Central Bank of Iran” posed “terrorist financing, proliferation
financing, and money laundering risks for the global financial system.”310
7.32 The U.S. Treasury Department’s conclusions accorded with findings of the
multilateral Financial Action Task Force (FATF), discussed in Chapter 4 above, to the effect
that Iran’s financial sector posed serious risks with regard to terrorism finance.311 By way of
example, on October 28, 2011, the FATF indicated “with a renewed urgency” that it was
“particularly and exceptionally concerned about Iran’s failure to address the risk of terrorist
financing and the serious threat this poses to the integrity of the international financial
system[.]”312 Iran is on FATF’s list of “high-risk and non-cooperative jurisdictions”; in fact,
it is one of only two jurisdictions (together with the Democratic People’s Republic of Korea)
on FATF’s “call to action” list of countries against which States are advised to take
measures.313
7.33 As this history makes clear, Executive Order 13599 was adopted to protect the United
States’ interest in combatting Iranian support for terrorism and terrorist financing, and
309 Notably, Iran cites this authority but not the Congressional findings that underpin it. Iran’s Memorial, n.81.
310 National Defense Authorization Act for Fiscal Year 2012, Section 1245(a), Pub. L. 112-239, 126 Stat. 2006
(IM Annex 17).
311 76 Fed. Reg. at 72757-58 (US Annex 152) (“Iran remains the most active of the listed state sponsors of
terrorism, routinely providing substantial resources and guidance to multiple terrorist organizations. . . . Iran is
known to have used state-owned banks to facilitate terrorist financing.”); 76 Fed. Reg. at 72879-80 (US Annex
153) (discussing findings concerning Iran’s role in terrorist financing, as well as multilateral findings or actions
by the UN Security Council and the FATF).
312 Financial Action Task Force (FATF), Public Statement –28 October 2011, available at http://www.fatfgafi.
org/publications/high-riskandnon-cooperativejurisdictions/documents/fatfpublicstatement-
28october2011.html (last visited Apr. 23, 2017) (US Annex 222); see supra ¶ 4.9 (discussing the FATF’s
findings and recommendations concerning Iran).
313 See Financial Action Task Force, High-risk and non-cooperative jurisdictions, available at http://www.fatfgafi.
org/countries/#high-risk (last visited Apr. 23, 2017) (US Annex 223). See also supra n.159.
77
thereby preventing future acts of terrorism. It is a measure necessary to the achievement of
that purpose. As the UN Security Council has recognized, asset freezes are an important
method of “prevent[ing] and suppress[ing] the financing of terrorist acts” – which States are
obliged to do under UN Security Council Resolution 1373314 – “even in the absence of a link
to a specific terrorist act[.]”315
7.34 In addition to its purpose of combatting terrorism financing, Section 1245 of the 2012
NDAA makes plain that Executive Order 13599 was also adopted as a measure necessary to
protect against the “proliferation financing” risks posed by Iran and the Iranian financial
sector. 316 The United States is not alone in its concern regarding Iran’s ballistic missile
program and the involvement of Iran’s financial sector in contributing to Iranian proliferation
efforts. The UN Security Council called upon States to “exercise vigilance” over transactions
involving Iranian banks, including Bank Markazi and Bank Melli, “so as to prevent such
transactions contributing to Iran’s proliferation-sensitive nuclear activities or to the
development of nuclear weapon delivery systems.”317 And in its 2015 resolution endorsing the
JCPOA, the UN Security Council continued to impose measures restraining Iranian efforts to
develop a ballistic missile that could serve as a delivery vehicle for a nuclear weapon.318
7.35 Furthermore, as discussed in the previous section, the United States adopted
Executive Order 13599 only after Iran persisted in violating, through the use of deceptive
practices, an array of more targeted sanctions relating to its support for terrorism and its
pursuit of vehicles for delivering weapons of mass destruction. Iran had also ignored repeated
314 See S.C. Res. 1373, ¶ 1 (US Annex 81) (deciding that States shall “[f]reeze without delay funds or other
financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate
in or facilitate the commission of terrorist acts[.]”).
315 S.C. Res. 2253, prmbl ¶ 24 (US Annex 182).
316 National Defense Authorization Act for Fiscal Year 2012, Sections 1245(a) and (b), Pub. L. 112-239, 126
Stat. 2006 (IM Annex 17); see also 76 Fed. Reg. at 72757-62 (discussing evidence “that organized criminal
groups, international terrorists, or entities involved in the proliferation of weapons of mass destruction or
missiles, have transacted business in that jurisdiction” (emphasis added)).
317 S.C. Res. 1929, prmbl. & ¶ 23 (US Annex 110) (“recalling in particular the need to exercise vigilance over
transactions involving Iranian banks, including the Central Bank of Iran” and calling upon States to take
“appropriate measures” that prohibit financial institutions within their territories providing certain financial
services if they have reasonable grounds to believe that such services “could contribute to Iran’s proliferationsensitive
nuclear activities or the development of nuclear weapon delivery systems”); S.C. Res. 1803, ¶ 10 (US
Annex 102) (“[c]all[ing] upon all States to exercise vigilance over the activities of financial institutions in their
territories with all banks domiciled in Iran, in particular with Bank Melli and Bank Saderat . . . in order to avoid
such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear
weapon delivery systems . . . .”).
318 S.C. Res. 2231, ¶ 7 & Annex B, ¶ 4 (US Annex 122).
78
calls to address the serious terrorist financing risks posed by its financial sector. 319 The
Executive Order thus became necessary, and was adopted, due to Iran’s own concerted
efforts to frustrate these earlier measures targeting Iran’s illicit conduct.
7.36 In light of the above, Executive Order 13599 is removed from the scope of the Treaty
as a measure necessary to protect the United States’ essential security interests.
* * *
7.37 For all of the above reasons, Executive Order 13599 is placed firmly outside the four
corners of the Treaty and hence outside the Court’s jurisdiction. It cannot form the basis for
any of Iran’s claims in this case.
IRAN’S SOVEREIGN IMMUNITY-RELATED CHAPTER 8: CLAIMS FALL OUTSIDE THE
SCOPE OF ARTICLE XXI(2) OF THE TREATY
8.1 At the core of Iran’s case is its claim that many of the U.S. measures at issue offend
customary international law principles of sovereign immunity. Under almost every article of
the Treaty it invokes, Iran complains that rules of State immunity have been disregarded in
connection with terrorism-related litigation in U.S. courts – ranging from the denial of Iran’s
own sovereign immunity, 320 to the immunity of its central bank, Bank Markazi, 321 to
immunities of other Iranian State entities.322 These claims must be dismissed at a preliminary
stage because they “do not fall within the provisions of the Treaty.” 323 Applying wellestablished
treaty interpretation rules to the provisions Iran invokes – as the Court indicated
was the appropriate approach to determining jurisdiction ratione materiae in its Preliminary
Objections Judgment in Oil Platforms – makes clear that the Treaty does not afford sovereign
immunity protections and therefore does not “lay down any norms applicable to” those
claims.324 Because the Treaty alone supplies the applicable law in this case, all of Iran’s
319 See, e.g., Financial Action Task Force (FATF), Public Statement –28 October 2011 (US Annex 222).
320 See Iran’s Memorial, ¶¶ 5.13, 5.44, 6.19 (asserting that Iran’s sovereign immunity was improperly denied in
connection with claims under Articles XI(4), IV(1), and X(1) of the Treaty).
321 See Iran’s Memorial, ¶¶ 5.13, 5.17, 5.44-48, 5.57-60, 6.19 (asserting that Bank Markazi’s sovereign
immunity was improperly denied in connection with claims under Articles IX(4), III(2), IV(1), IV(2), and X(1)
of the Treaty).
322 See Iran’s Memorial, ¶ 5.18 (asserting that other Iranian State-owned companies were not afforded sovereign
immunity protections available under U.S. law to agencies and instrumentalities of foreign States that are not
designated State sponsors of terrorism, in connection with claims under Article III(2) of the Treaty).
323 Oil Platforms, 1996 I.C.J. at 809-810, ¶ 16.
324 Id. at 816, ¶ 36.
79
sovereign immunity claims must be dismissed as a preliminary matter.
8.2 As discussed in Section A below, the Treaty does not confer sovereign immunity.
This is clear from the Treaty text, as well as its object and purpose of protecting individuals
and companies – primarily private companies – conducting commercial activities in, or
commerce with, the other State. Apart from a single provision barring State-owned business
enterprises from raising a sovereign immunity defense in the other State’s courts (Article
XI(4)), the Treaty does not govern, and was not intended to govern, questions relating to
sovereign immunity of the State as such or other State entities. The subsequent practice of
both Parties reviewed in Section B further confirms this conclusion. Iran and Iranian State
entities have passed up numerous opportunities in litigation before U.S. courts to claim
sovereign immunity as a Treaty right. The United States’ practice similarly reflects the view
that the Treaty is not a source of sovereign immunity entitlements.
8.3 Section C explains that Iran’s efforts to shoehorn its sovereign immunity-related
claims into inapposite Treaty provisions would work a gross distortion of the Treaty and
contravene settled rules of treaty interpretation. Iran puts forward three theories: (1) that
Article XI(4) of the Treaty creates a broad implied obligation to afford sovereign immunity
protections; (2) that customary international law immunity rules have “direct application”
because Article IV(2) of the Treaty refers to “international law”; and (3) that VCLT Article
31(3)(c) permits customary international law immunity rules to be imported wholesale into
unrelated provisions of the Treaty. Iran’s case fails on all counts, as none of these theories is
tenable when viewed against the Treaty text, placed in its proper context and viewed in light
of the Parties’ practice.
8.4 None of the jurisdictional analysis set forth below intrudes upon issues that go to the
merits of Iran’s claims. The analysis does not turn on the facts relating to Iran’s sovereign
immunity claims in particular contexts, whether such facts would sustain a violation of the
purported rules laid down by the Treaty, or whether any defenses would be available.325 The
Court recently made clear that it can conduct an analysis of treaty provisions to determine its
subject matter jurisdiction at an even earlier stage in Immunities and Criminal Proceedings
(Equatorial Guinea v. France), where it rejected a similarly unfounded effort to import
customary international law immunity rules into an unrelated treaty in its decision on
325 See id. at 856-857, ¶ 34 (Separate Opinion of Judge Higgins).
80
provisional measures.326 The same result is warranted here. All of Iran’s claims concerning
the alleged sovereign immunity rights of the Government of Iran, of Bank Markazi, or of
Iran’s other State entities must be dismissed as outside the scope of the Treaty and the
Court’s jurisdiction.
Section A: It Is Clear from the Text and Context of the Treaty of Amity That It Does
Not Confer Sovereign Immunity
8.5 Iran does not identify any text in the Treaty providing that the Parties themselves or
other State entities shall enjoy sovereign immunity in any respect. This is because no such
text exists. FCN treaties are not, and were never intended to be, vehicles for codifying
sovereign immunity protections enjoyed by States or other State entities; these questions were
left to be regulated by other rules existing separate from these treaties.
8.6 None of the articles of the Treaty Iran relies upon to bring its sovereign immunity
claims in this case – namely, Articles III(2), IV(1), IV(2), X(1), and XI(4) – say anything
about providing sovereign immunity protections. Articles III(2), IV(1), and IV(2) set out
certain rights that citizens and companies of one High Contracting Party will have in respect
of their treatment by the other Party, including access to the courts and protections for their
property, enterprises, and other legally acquired rights. Article X(1) states that there shall be
“freedom of commerce and navigation” between the territories of the two Parties. And Article
XI(4) limits any immunity a State-owned enterprise might attempt to claim in the other
Party’s territory.
8.7 Had the Parties chosen to codify sovereign immunity protections in this commercial
treaty, they would have done so simply and directly. The Treaty explicitly provides
immunities to consular officers and employees of the Parties. In particular, Articles XII(1)
and XVIII state that consular officers and employees “shall enjoy the privileges and
immunities accorded to officers and employees of their rank or status by general international
usage,” and “are not subject to local jurisdiction for acts done in their official character and
within the scope of their authority.” No similar provisions were added to establish sovereign
326 See Immunities and Criminal Proceedings, Order on Request for the Indication of Provisional Measures, ¶ 49
(ruling that the alleged dispute concerning “whether the Vice-President of Equatorial Guinea enjoys immunity
ratione personae under customary international law and, if so, whether France has violated that immunity by
instituting proceedings against him” is a “distinct issue” that does not relate to the manner in which France
performed its obligations under the referenced articles of the United Nations Convention against Transnational
Organized Crime).
81
immunity protections – neither a general provision stating that sovereign immunity shall be
enjoyed by the Parties and other State entities and their property in accordance with
customary international law, nor any specific provisions setting out particular circumstances
in which immunity will be enjoyed.
8.8 The absence of any treaty text conferring an entitlement to sovereign immunity is
unsurprising, given that codifying sovereign immunity protections does not logically relate to
the Treaty’s object and purpose. The Treaty is concerned with the commercial and consular
relations between the two countries and sets forth regulations that pertain to activities in those
spheres.327 As the Court observed in Oil Platforms, the Treaty
regulates the conditions of residence of nationals of one of the parties on
the territory of the other (Art. II), the status of companies and access to the
courts and arbitration (Art. III), safeguards for the nationals and companies
of each of the contracting parties as well as their property and enterprises
(Art. IV), the conditions for the purchase and sale of real property and
protection of intellectual property (Art. V), the tax system (Art. VI), the
system of transfers (Art. VII), customs duties and other import restrictions
(Arts. VIII and IX), freedom of commerce and navigation (Arts. X and
XI), and the rights and duties of Consuls (Arts. XII-XI).328
8.9 The Treaty does not set out to govern how the Parties treat each other in their
sovereign capacities, or to regulate the bilateral relationship between the governments in any
general sense. That is why the Court recognized in Oil Platforms that Article I’s reference to
“firm and enduring peace and sincere friendship between the United States . . . and Iran”
could not be interpreted “as incorporating into the Treaty all of the provisions of international
law concerning such relations”; such a result would expand the Treaty well beyond the
“specific fields” provided for in this and other similar FCN treaties.329 Rules relating to the
immunity of States and State entities acting in a sovereign capacity are likewise outside the
scope of activities addressed by the Treaty.
8.10 The context for the waiver of immunity in Article XI(4) further confirms that it would
327 Oil Platforms, 1996 I.C.J. at 813-814, ¶ 27 (describing the Treaty’s object as “encouraging mutually
beneficial trade and investments and closer economic intercourse generally” and “regulating consular relations”
between the two States).
328 Id.
329 Id. at 814, ¶ 28 (noting that this conclusion is in conformity with the one the Court reached with respect to
the Treaty of Friendship of 1956 between the United States and Nicaragua). Iran acknowledges that the Treaty
of Amity is similar to other FCN treaties, and references the Sullivan Study in its Memorial. See Iran’s
Memorial, ¶¶ 3.7, 4.6.
82
be at odds with the overall scheme of the Treaty for it to be treated as a source of sovereign
immunity guarantees. Like other similar FCN treaties, the Treaty of Amity includes
provisions designed to address issues arising from government control over economic
enterprises – provisions that seek to reduce any unfair advantages that State-owned
companies might claim in the commercial sphere by virtue of their State ownership.330 Thus,
Article XI(1) of the Treaty enables nationals and companies of each Party to compete or bid
on certain purchases or sales by State enterprises of the other Party, and Article XI(3)
provides that, where State manufacturing and trading enterprises enter into competition with
private enterprises of the other Party, those private enterprises will be entitled to the same tax
and other economic advantages, with certain exceptions. Article XI(4) further ensures that if
State-owned enterprises engage in commercial or business activities in the other Party’s
territory, they will not enjoy immunity and will be subject to the same liabilities “to which
privately owned and controlled enterprises are subject therein.”331 Article XI(4) is thus a key
element of the Treaty’s effort to level the playing field between State enterprises and their
private counterparts engaged in activities in the specific fields governed by the Treaty.332 The
inclusion of Article XI(4) in no way indicates that the Treaty was also intended to be a source
of affirmative sovereign immunity rights.
8.11 Finally, the historical context surrounding questions of State immunity also confirms
that the Treaty cannot be understood as silently regulating matters of State immunity in the
absence of express text. At the time the United States was negotiating the Treaty of Amity
and similar FCN treaties, there was a diversity of views internationally regarding the absolute
330 See Hearing Before a Subcomm. of the S. Comm. on Foreign Relations on Treaties of Friendship,
Commerce, and Navigation Between the United States and Colombia, Israel, Ethiopia, Italy, Denmark, and
Greece, 82nd Cong. (1952) (statement of Harold F. Linder, Dep’t of State) (US Annex 224) (“Another
significant feature of the postwar treaties of interest to the prospective investor is the body of provisions which
deals with problems arising from the state ownership of economic enterprise. There is a growing tendency
abroad for the real competitor of private business to be the government itself. The Department of State has,
accordingly, endeavored to work out treaty provisions designed to reduce the hazards of unfair competition from
state-controlled businesses”); SULLIVAN STUDY, p. 270 (IM Annex 20) (“Although Article XVIII [in the
standard draft – Article XI here], taken in its entirety, may seem to be made up of disparate elements, it has a
unifying theme, which is the restraint of unfair competition.”).
331 See R.R. WILSON, UNITED STATES COMMERCIAL TREATIES AND INTERNATIONAL LAW 21-22 (1960) (“Where
there is specific mention of state trading and public control of commercial enterprises, it is, typically, for the
purpose of securing assent to the application of ‘commercial considerations’ (as in connection with purchases
and sales) or operation on a plane of legal equality with private enterprises (as in connection with waivers of
jurisdictional immunity).”). See generally SULLIVAN STUDY, pp. 270-82 (IM Annex 20).
332 Even Iran acknowledges that the purpose of the provision is to ensure that State enterprises engaging in
commercial activities do not enjoy a competitive advantage over privately owned companies. See Iran’s
Memorial, ¶ 5.8.
83
and restrictive theories of sovereign immunity in international law.333 In light of these two
schools of thought and the general uncertainty about the applicable international law rules,
specificity in the Treaty text would have been necessary to confirm what view of sovereign
immunity the Parties were memorializing as the operative one between the two countries.
8.12 The record of negotiations lends additional support to this point (should the Court feel
it needs to look to the Treaty’s travaux).334 The negotiating documents do not reflect any
discussion of either Party’s views on questions of State immunity under international law.
Nor do they include any statements indicating that the Treaty would affect the sovereign
immunity of the States as such or afford immunity to State-owned companies in
circumstances in which immunity was not waived.335 In this context, inferring that the Treaty
silently codifies sovereign immunity rights is not tenable.
Section B: The Subsequent Practice of the Parties Confirms That the Treaty of Amity Is
Not a Source of Sovereign Immunity Rights
8.13 The subsequent practice of the Parties further confirms that the Treaty of Amity is not
a source of sovereign immunity rights. The Court acknowledged in Oil Platforms the
significance of past failures by the Parties to rely upon the Treaty of Amity for a claimed
right.336 Iran and Iranian State entities have faced a range of litigation in U.S. courts in the
decades since the Treaty was concluded. Yet, Iran has repeatedly declined to assert that the
Treaty provides it with sovereign immunity protections in circumstances where it would have
been expected to do so, including in connection with the terrorism-related proceedings that it
places in issue in this case. Iran has also taken the position that the waiver of immunity
contained in Article XI(4) does not reach Iran or any Iranian State entities that are not
“enterprises,” even in connection with their commercial activities, and indicated that the
Treaty is not relevant to questions of sovereign immunity outside the four corners of Article
333 See, e.g., Letter from Jack B. Tate, Acting Legal Adviser, to Philip B. Perlman, Acting Attorney General
(May 19, 1952), in 26 DEP’T. STATE BULL. 984 (1952) (US Annex 225) (the “Tate Letter”). In the Tate Letter,
the State Department announced its decision to abandon the absolute theory in favour of the restrictive theory of
immunity in international law.
334 See Oil Platforms, 1996 I.C.J. at 814-815, ¶ 29 (noting in relation to Iran’s argument about Article I that “it
may be thought that, if that Article had the scope that Iran gives it, the Parties would have been led to point out
its importance during the negotiations or the process of ratification”).
335 See, e.g., Cable from American Embassy, Tehran, to the Department of State, Oct. 16, 1954, Ref:
Department Instruction No. A-18, no.15 (IM Annex 2); Cable from U.S. Dep’t of State to U.S. Embassy Tehran
(Dec. 4, 1954) (US Annex 226); Cable from U.S. Dep’t of State to U.S. Embassy Tehran (Dec. 18, 1954) (US
Annex 227).
336 Oil Platforms, 1996 I.C.J. at 815, ¶ 30.
84
XI(4).
8.14 By way of example, in defending against a contract action brought against Iran, its
Social Security Organization, and its Ministry of Health and Welfare in the late 1970s and
early 1980s, Iran argued that the Treaty did not waive the immunity of Iran or of its noncommercial
agencies or instrumentalities. It did not, however, suggest that the lower court’s
alleged failure to respect the defendants’ immunity amounted to a violation of the Treaty,
instead taking the position that the FSIA, not the Treaty, governed the question of the
defendants’ immunity.337 Iran explained to the U.S. Court of Appeals for the Fifth Circuit that
the Treaty of Amity, like other FCNs, serves a different, narrower purpose than the FSIA, in
that the Treaty does not seek to regulate sovereign immunity issues generally but instead bars
immunity claims for only a specific type of State actor: State-owned businesses “that are
counterparts of, and are in competition with, private enterprises.”338 In particular, Iran stated:
[I]t has never been considered to be within the province of any U.S.
commercial treaty to provide the legal basis for establishing jurisdiction
with respect to conduct of a foreign state or its agencies arising from
proprietary functions, even though that conduct relates “to purchases and
sales, to all types of contracts, and torts…”339 . . . From the foregoing, it is
submitted that the Treaty of Amity between Iran and the United States
does not constitute a waiver of sovereign immunity either explicitly or
implicitly by any of the Defendants. The Treaty does not apply to the
Government of Iran but only to its “enterprises” that are engaged “in
commercial, industrial, shipping or business activities within the
territories of” the United States, and there was no evidence before the
District Court to even suggest that either [the Social Security
Organization] or the Ministry were engaged in activities of that nature.340
337 Brief for Appellants Soc. Sec. Org. of Gov’t of Iran, Ministry of Health & Welfare of Gov’t of Iran, & Gov’t
of Iran at 13-14, 36-42, Elec. Data Sys. Corp. Iran v. Soc. Sec. Org. of Gov’t of Iran, et al. (No. 79-2641) (5th
Cir. Aug. 15, 1979) (US Annex 228). See also id. at 44 (“Plaintiff has openly and unquestionably violated the
Foreign Sovereign Immunities Act of 1976 in every respect.”) (emphasis added).
338 Id. at 33.
339 Id. at 34. Iran’s brief cited extensively to the writings of Vernon Setser, who was the Chief of the
Commercial Treaties Branch in the State Department’s Bureau of Economic & Business Affairs at the time the
Treaty was negotiated, including for the point that “commercial treaties such as the Treaty of Amity do not
apply to proprietary acts of a sovereign but govern only economic enterprises controlled by a foreign state that
are in competition with private enterprises for economic profits.” Id. (citing Vernon G. Setser, The Immunity
Waiver for State-Controlled Business Enterprises in United States Commercial Treaties, 55 AM. SOC. INT’L L.
PROC. 89 (1961) (US Annex 229)).
340 Id. at 35 (emphasis added).
85
8.15 In a later brief in the same case, Iran further stated:
The United States entered into the FCN treaties, including the Treaty of
Amity with Iran, during the decade following World War II. Recognizing
the extensive nationalization of previously private enterprises, the
contracting states, through the immunity waiver provisions, sought to put
state enterprises on an equal footing with private enterprises. Thus the
FCN treaties serve different purposes and express different policies than
the Foreign Sovereign Immunities Act. The treaties are concerned with the
nature of the entity involved, and waive immunity only for state-owned
businesses. They do not waive the immunity of the contracting states and
their non-commercial agencies and instrumentalities, even for commercial
activity. The Act, on the other hand, is addressed to the nature of the
activity involved and, accordingly, withdraws immunity for commercial
activity regardless of which governmental agency engages in it or its
purpose.341
8.16 Iran emphasized that its views on these points were aligned with those of the United
States, and it urged the Court of Appeals to adopt the U.S. government’s interpretation of the
Treaty.342 In support of its position, Iran submitted to the Court of Appeals a brief the U.S.
government had filed in a related case, which underscored that Article XI(4) “manifestly does
not reveal an intent on the part of the contracting parties to deal with the sovereign immunity
of the Contracting State as such.”343 Like Iran, the U.S. brief indicated that the FSIA, rather
than FCN treaties, provided the governing framework for questions of sovereign immunity
relating to the State and other State entities beyond the narrow confines of the treaty waiver
provisions.344
8.17 In connection with the later terrorism-related litigation against Iran that is at issue in
the present case, Iran and Iranian entities have passed up numerous opportunities to assert
that alleged failures to properly accord sovereign immunity protections amounted to
341 Brief for Defendants-Appellants at 30, Elec. Data Sys. Corp. Iran v. Soc. Sec. Org. of Gov’t of Iran, et al.
(No. 80-1641) (5th Cir. Oct. 1, 1980) (US Annex 230).
342 See id. at ii (listing as Addendum A the Brief of the United States in Electronic Data Systems Corp. Iran v.
The Social Security Organization of the Government of Iran, et al.) & 25-36 (setting out and urging the court to
adopt the U.S. view).
343 Brief for the United States as Amicus Curiae at 8, Elec. Data Sys. Corp. Iran v. Soc. Sec. Org.of Gov’t of
Iran, et al. (No. 79-7696) (2d Cir. Oct. 18, 1979) (US Annex 231) (emphasis added).
344 Id. at 24-26. The U.S. brief reviews additional practice evidencing that the United States did not view FCN
treaties as codifying sovereign immunity rules in any general sense. For example, the brief notes that, in
response to a query about whether Iranian air force property was subject to state taxes in California in 1979, the
Department of State explained that Article XI(4)’s waiver did not apply and indicated that that the property’s
immunity would derive from customary international law, not the Treaty. See id. at 12 & Appendix B (Letter
from David Small, Assistant Legal Adviser for Near Eastern and South Asian Affairs to Ralph Long, Deputy
County Counsel, County of Santa Clara, July 24, 1979).
86
violations of the Treaty. Notably, Iran made no reference to the Treaty in its 1998 diplomatic
note objecting to one of the initial judgments entered against Iran under the FSIA’s terrorism
exception.345 Nor do the parliamentary debates surrounding legislation enacted by Iran to
strip the United States of immunity in Iranian courts refer to those measures as a response to
perceived violations of the Treaty.346
8.18 And where Iran and Iranian entities have appeared in terrorism-related U.S. court
proceedings, they have not argued that the courts’ denial of their immunity claims amounted
to a violation of a right to sovereign immunity contained in the Treaty. For example, in the
Peterson enforcement proceeding, Bank Markazi asserted before the U.S. Court of Appeals
for the Second Circuit that turnover of the assets at issue contravened several different
provisions of the Treaty of Amity but did not allege a breach based on the lower court’s
denial of Iran’s claim that the assets enjoyed sovereign immunity.347 To the contrary, Bank
Markazi argued that the Treaty was not a “provision of law relating to sovereign
immunity.” 348 Consistent with Iran’s views in the earlier cases described above, Bank
Markazi’s only immunity-based argument was cast exclusively in terms of the FSIA.349 Nor
did Iran specify that it believed the denial of immunity to Bank Markazi’s property to be a
violation of the Treaty in diplomatic correspondence sent in February 2016.350 And while Iran
345 See Message from the Ministry of Foreign Affairs of I.R. Iran to the United States, July 14, 1998 (IM Annex
89) (referring to sovereign immunity protections as “principles of international law”). The only reference to the
United States’ treaty obligations in the note concerns the United States’ successful opposition to plaintiff’s effort
to attach Iran’s diplomatic properties, which the United States argued was barred by the Vienna Convention on
Diplomatic Relations. See id. See also Stephen Flatow, et al. v. Islamic Republic of Iran, et al., 76 F. Supp. 2d
16, 20-22 (D.D.C. 1999) (US Annex 232).
346 See Parliamentary Debates on 1999 Law Stripping Immunity, Public Session No. 323 pp. 32-33 and Public
Session No. 324 at pp. 32-33 (US Annex 167); RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL
GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Parliamentary Debates, Public Session No. 41, pp. 24-25 (Oct.
31, 2000) & Public Session No. 42, pp. 28-30 (Nov. 1, 2000) (US Annex 168); RUZNAMEHI RASMI JUMHURI
ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE ISLAMIC REPUBLIC OF IRAN], Parliamentary Debates, Session No.
403, pp. 15-18 (Mar. 6, 2012) & Session No. 404, p. 2 (Mar. 7, 2012) (US Annex 169).
347 Brief for Defendant-Appellant at 44-48, Peterson (2d Cir. Nov. 19, 2013) (US Annex 233) (citing Articles
IV(1), V(1), III(2), IV(2), and III(1)).
348 In particular, Bank Markazi argued that 22 U.S.C. § 8722 should not be understood to abrogate the Treaty
and its protections because the statute’s use of “particularized” language in its “notwithstanding clause” (which
provides that § 8722 applies “notwithstanding any other provision of law, including any provision of law
relating to sovereign immunity and preempting any inconsistent provision of State law”) did not include the
Treaty. Id. at 43 (emphasis in original); Reply Brief for Defendant-Appellant Bank Markazi, Cent. Bank of Iran,
at 13, Deborah Peterson, et al. v. Islamic Republic of Iran, et al. (No. 13-2952) (2d Cir. Feb. 18, 2014) (US
Annex 234).
349 Brief for Defendant-Appellant at 34-35, Peterson (2d Cir. Nov. 19, 2013) (US Annex 233).
350 See Note Verbale of the Iranian Ministry of Foreign Affairs to the U.S. Department of State, dated Feb. 3,
2016 (IM Annex 91) (containing no reference to the Treaty of Amity, instead describing State immunity as “a
87
did not annex copies of Bank Markazi’s District Court pleadings in Peterson to its Memorial
– meaning neither the United States nor the Court has a complete picture of what arguments
Bank Markazi raised at that stage – there is no indication in public materials that it took a
different approach in those pleadings.351 Finally, in a related enforcement proceeding brought
by the Peterson plaintiffs, Bank Markazi similarly argued questions of immunity under the
FSIA, not the Treaty, and took the position that Article XI(4)’s immunity waiver was not a
basis for attaching its funds because that provision does not reach State entities that do not
qualify as “enterprises.”352
8.19 This practice accords with the Treaty’s text and context described above. Sovereign
immunity protections are not codified in the Treaty, and any claims relating to the denial of
sovereign immunity thus fall entirely outside the Court’s jurisdiction.
Section C: Iran’s Theories for Converting Sovereign Immunity into a Treaty Right Are
Untenable
8.20 The Court should reject Iran’s attempts, through overreaching theories offered under
the guise of treaty interpretation, to circumvent a straightforward reading of the Treaty text,
in its proper context and in accordance with the practice of the Parties described above.
i. The Restriction on Claims of Sovereign Immunity by State
Enterprises in Article XI(4) of the Treaty Does Not “A
Contrario” Amount to a Grant of Sovereign Immunity Rights
8.21 Iran invites the Court to adopt an “a contrario” reading of Article XI(4) such that the
provision would silently guarantee immunity “so far as concerns acts jure imperii and/or
long-established principle of customary international law” and stating that the principle “has also been codified
in international law of treaties and in the United Nations Convention on Jurisdictional Immunities of States and
Their Property (2004),” and urging that the United States “cease all measures taken and comply with its
obligations under the relevant international instruments and, in particular, the United Nations Convention on
Jurisdictional Immunities of States and Their Property”).
351 The District Court’s February 28, 2013 Opinion and Order nowhere suggests that Bank Markazi argued that
the funds enjoyed sovereign immunity under the Treaty. See Opinion and Order at 51-54, 63, Deborah
Peterson, et al. v. Islamic Republic of Iran, et al., No. 10 civ. 4518 (S.D.N.Y. Feb. 28, 2013) (IM Annex 58).
352 Brief for Defendant-Appellee Bank Markazi, aka Cent. Bank of Iran, at 37-40, Deborah Peterson, et al. v.
Islamic Republic of Iran, et al. (No. 15-0690) (2d Cir. Aug. 31, 2015) (US Annex 235) (arguing that the Article
XI(4) immunity waiver “applies solely to state-owned business enterprises doing business in the United States,
not to Iran’s agencies or instrumentalities arguably engaged in a ‘commercial activity’ in the United States
within the meaning of Section 1610 of the FSIA,” and emphasizing that the waiver “looks to the nature and
function of the entity in question and applies only to ‘enterprises’ engaged in a ‘business activity,’ not to
instrumentalities acting in a sovereign capacity (such as Bank Markazi) irrespective of the commercial nature of
the acts they engage in while performing their sovereign functions.”) (citing and attaching Setser, 55 AM. SOC.
INT’L L. PROC 89 (US Annex 229)).
88
where State of Iran and Iranian State-owned companies did not engage in commercial
activities within the United States.” 353 But as the Court made clear in its Preliminary
Objections Judgment in Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast, an “a
contrario reading of a treaty” is “only warranted . . . when it is appropriate in light of the text
of all the provisions concerned, their context and the object and purpose of the treaty.”354 Iran
cites this case in its Memorial but neglects to explain how Iran’s a contrario reading satisfies
this standard. More generally, Iran has not supplied any authorities supporting the novel
proposition that when States agree to a waiver of sovereign immunity, such waivers are
understood to create binding treaty obligations conferring sovereign immunity in
circumstances not addressed.
8.22 Article XI(4) of the Treaty of Amity protects private, not sovereign, prerogatives, and
it would be inappropriate to read Article XI(4)’s restriction on claims of immunity by State
enterprises as a grant of immunity in all, or some, other circumstances. The text of Article
XI(4) provides in full:
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.
A plain reading of Article XI(4) does not reveal (nor even suggest) any intent to address the
immunity of the contracting governments or other government-related entities falling outside
of the provision’s scope. It refers only to State “enterprise[s]” engaged in business or other
commercial activities in the other Party’s territory, and does not pertain to the “Part[ies]”
themselves or to their non-commercial agencies or instrumentalities.
8.23 The context for Article XI(4) is equally dispositive. As discussed above, Article XI(4)
appears in an article of the Treaty that contains several provisions that seek to restrict unfair
competition from State-owned or controlled enterprises operating in competition with private
enterprises. Paragraph 4 is addressed to one of the specific problems relating to such
353 Iran’s Memorial, ¶ 5.13. See also id. ¶¶ 5.7-5.8.
354 See Delimitation of the Continental Shelf, Preliminary Objections Judgment, ¶ 35.
89
enterprises and arising in the sphere of activities governed by the Treaty. That is, if State
enterprises are to obtain protections under the Treaty when they engage in commercial
activities in the United States, it would be unfair for them to be able to avoid the same
burdens and liabilities as private companies under domestic law.355 By barring immunity
broadly for all such enterprises and their property (i.e., “from taxation, suit, execution of
judgment or other liability”), Article XI(4) insures against this result.356 In the U.S. court
litigation described above, Iran embraced this context for Article XI(4) and vigorously
disputed the proposition that Article XI(4) could implicitly affect the immunity of the States
themselves or other State entities outside of its textual scope.357 Negotiating documents do
not reflect any agreement that Article XI(4) supplies rules governing other questions of
immunity or contains the broad implied obligation Iran now asserts, nor has Iran pointed to
any support for its theory in the literature relating to these FCN provisions.358 The Court
should therefore reject Iran’s proposed “a contrario” reading of Article XI(4) as
inappropriate.
ii. Article IV(2) of the Treaty Does Not Import International Law
Rules Unrelated to the Protection and Security of Private
Property
8.24 Iran further contends that the Court has a basis for adjudicating sovereign immunity
355 Setser explained the context for these provisions in 1961, stating “[i]f treaty assurances are to be given to
foreign economic enterprises, then it is reasonable and appropriate to provide for equalization of the situation in
the event that foreign state enterprises become competitors of American or the treaty-protected alien private
enterprises.” Setser, 55 AM. SOC. INT’L L. PROC. at 99, 104 (US Annex 229). Likewise, the Sullivan Study
observed that the immunity waiver included in FCNs was aimed at “ensur[ing] that state-owned enterprises with
a claim to treaty rights would not be able to escape the liabilities to which private United States enterprises in
competition with them were subject.” SULLIVAN STUDY at 272 (IM Annex 20).
356 As noted earlier, Iran acknowledges that the purpose of the provision is to ensure that State enterprises
engaging in commercial activities do not enjoy a competitive advantage over privately owned companies. Iran’s
Memorial, ¶ 5.8.
357 See supra at Chapter 8, Sec. B. Iran’s briefs in earlier litigation referenced documents relating to other FCN
treaties concluded during this time period which further confirm that the limited immunity waivers in these
treaties were not intended to govern additional issues relating to sovereign immunity between the treaty partners
and were “without prejudice” to those larger questions. For example, Iran’s brief in Elec. Data Sys. Corp. Iran
(5th Cir. Oct. 1, 1980) (US Annex 230), referred to Herman Walker’s annotation of a similar provision in the
draft FCN with Portugal, which explained “[t]he waiver of immunity is only for ‘business enterprises.’ The
situation of other types of government entities, agents and activities is left open, without prejudice. Beds for the
government’s tourist hotel are covered, but those for the Army are not.” Id. at 31.
358 See e.g., Setser, 55 AM. SOC. INT’L L. PROC. at 101 (US Annex 229) (noting that it was not “considered the
province of the United States commercial treaty to provide the legal basis for establishing jurisdiction” over
private acts of the governments themselves); SULLIVAN STUDY 272 (IM Annex 20) (explaining that the policy
represented by the FCN immunity waiver “antedated, and had no direct connection with the issuance of the Tate
letter,” which announced the State Department’s general adoption of the restrictive theory of immunity).
90
claims based on customary international law in this case because Article IV(2) of the Treaty
refers to “international law.” Iran claims that the protection and security assured to property
of nationals and companies “in no case less than that required by international law” under
Article IV(2) includes the application of any customary international law immunity rules
relating to the availability of such companies’ property for execution (including, in its view,
property of the Parties’ central banks).359 Iran’s theory founders when considered against the
text of the Treaty, its context, and the shared practice of the Parties. Where Iranian Stateowned
entities have rights under Article VI(2), it is on the same basis as private companies,
which have no claim to sovereign immunity, and Article XI(4) further ensures that any
immunity from execution is waived. Moreover, in construing Article IV(2) of this
commercial treaty to govern issues well beyond its scope, Iran’s theory would lead to bizarre,
anomalous results.
8.25 Article IV(2) provides:
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.
A straightforward reading of this provision does not indicate that extending the “most
constant protection and security . . . in no case less than that required by international law” to
property of nationals and companies is intended to extend sovereign immunity protections to
property of sovereign entities. A reference to “international law” in a treaty does not sweep in
areas of customary international law that lie beyond and are simply irrelevant to the Parties’
agreement as memorialized in the Treaty. Here, the international law rules suggested by the
text are those that pertain to the applicable minimum standard of treatment for the property of
aliens in the host State and not those that concern State-to-State matters.360
359 Iran’s Memorial, ¶¶ 3.13, 3.14, 3.20, 5.57, 5.60, 5.70.
360 The negotiating history relating to Article IV(2) indicates that the Parties agreed it would reflect the
minimum standard for the treatment of aliens and their property and contain no reference to sovereign
immunity. See Cable from American Embassy, Tehran, to the Department of State, Nov. 27, 1954 (IM Annex 4)
(reporting that the Iranian negotiators wanted to include the “in no case less than that required by international
law” phrase because “They said they saw advantages in including minimum standard of protection and security
91
8.26 The context for Article IV(2) confirms this reading. Article IV(2) appears among
provisions in the Treaty (Articles III through V) that provide basic protections to both
nationals and companies of each Party. These articles regulate “the status of companies and
access to the courts and arbitration (Art. III), safeguards for the nationals and companies of
each of the contracting parties as well as their property and enterprises (Art. IV), [and] the
conditions for the purchase and sale of real property and protection of intellectual property
(Art. V).”361 Like the provisions of Article IV(1) that the Court addressed in Oil Platforms,
these articles are “aimed at the way in which the natural persons and legal entities in question
are, in the exercise of their private or professional activities, to be treated by the State
concerned.”362 They seek to ensure that nationals and companies of the other Party will not be
unduly disadvantaged in the other Party’s territory by virtue of their nationality when
conducting their private and business affairs. Iran itself has previously asserted that the
provisions of Article IV “set the legal standards on the treatment of Iranian nationals and
companies engaged in commercial activities and that of their properties in the United
States.”363 Because customary international law rules pertaining to circumstances in which
property of State-owned companies may enjoy sovereign immunity do not apply to private
companies – nor even to State-owned companies engaged in commercial activities – there is
no basis to inject such rules into Article IV(2).
8.27 In any event, Iran’s reading of Article IV(2) would be wholly at odds with the text
and context of Article XI(4) described above, under which State-owned entities acting in the
of property,” and with this addition the article would be in closer conformity with what the United States had
agreed to in the U.S.-Irish FCN treaty); Cable from U.S. Dep’t of State to U.S. Embassy Tehran (Dec. 8, 1954)
(US Annex 236) (agreeing to this phrasing). In relation to a substantially similar provision in the U.S.-Ethiopia
FCN, the Department of State sent a diplomatic note to the Ethiopia’s Foreign Ministry explaining that the
purpose of the “international law” language in the protection and security provision “was simply to reaffirm the
rules of international law with respect to protection and security of aliens and their property.” See Diplomatic
Note from U.S. Department of State to Ato Ketema Yifru, Minister of Foreign Affairs of the Imperial Ethiopian
Government (Apr. 14, 1966) (US Annex 237).
361 See Oil Platforms, 1996 I.C.J. at 813-814, ¶ 27 (providing an overview of the Treaty’s provisions).
362 Id. at 816, ¶ 36 (emphasis added); see also id. at 858, ¶ 39 (Separate Opinion of Judge Higgins) (explaining
that Article IV(1) uses the “language of foreign investment protection,” employing “legal terms of art well
known in the field of overseas investment protection, which is what is there addressed”).
363 See Letter from the Agent of Iran to the Iran-U.S. Claims Tribunal to the Agent of the United States to the
Iran-U.S. Claims Tribunal, Feb. 12, 2008 (IM Annex 90) (emphasis added) (asserting that the attachment of
Bank Melli’s property in the Weinstein proceeding “violates the rules of international law and specifically the
provisions of Article III(1) and IV of the Treaty of Amity of 1955 which set the legal standards on the treatment
of Iranian national and companies engaged in commercial activities and that of their properties in the United
States. In particular, the blocking and potential execution of the said property is taking not for a public purpose
and without prompt payment of just compensation.”).
92
marketplace alongside private companies and with a claim to treaty rights were not to be able
to claim sovereign immunity for their property.364
8.28 Iran’s theory that the reference to “international law” in Article IV(2) encompasses
principles of State immunity law would in effect require constructing two types of obligations
that would flow from Article IV(2): one set supported by the Treaty, and the other invented
from whole cloth. The first set of obligations would be grounded in the Treaty’s text, object,
and purpose, and would provide certain rights to property of all “companies” on the same
terms, regardless of their State or private ownership – rights that may be interpreted and
understood by the Parties based on authorities interpreting treaty provisions of this type.365
The second set of purported obligations would be unmoored from the text and overall scheme
of the Treaty, and would provide that certain State-owned companies, depending on the
circumstances, would have a claim to sovereign protections for their property that derive
from an entirely different source of law, which governs activities outside the sphere of private
and commercial activities to which this provision is addressed.
8.29 As the Court recognized in Oil Platforms, the compromissory clause in similar FCN
treaties was “consistently referred to by the Department of State as being ‘limited to
differences arising immediately from the specific treaty concerned,’ as such treaties deal with
‘familiar subject matter’ in relation to which ‘an established body of interpretation already
exists.’”366 Iran has offered no indications from the Parties’ practice or the travaux suggesting
that the Parties ever understood Article IV(2) to be a source of sovereign immunity
guarantees for the property of State-owned companies. 367 To the contrary, the Parties’
practice and the travaux reviewed above support the proposition that the Treaty is not a
source of sovereign immunity rights. Nor has Iran identified in the jurisprudence and
literature interpreting “protection and security” provisions in FCN treaties any suggestion that
such provisions have been understood to contain sovereign immunity protections. In sum,
Iran has pointed to no source that supports, or even suggests the possibility of, a second,
contradictory set of “shadow” obligations relating to sovereign immunity in Article IV(2).
364 See SULLIVAN STUDY 272 (IM Annex 20); Setser, 55 AM. SOC. INT’L L. PROC. at 99 (US Annex 229).
365 See, e.g., Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), 1989 I.C.J.
15, 66-67, ¶ 111 (July 20) (“The primary standard laid down by Article V [of the U.S.-Italian FCN treaty] is ‘the
full protection and security required by international law’, in short, the ‘protection and security’ must conform
to the minimum international standard”).
366 Oil Platforms, 1996 I.C.J. at 814-815, ¶ 29.
367 See supra n.360 (discussing the Article IV(2) negotiating history).
93
iii. VCLT Article 31(3)(c) Does Not Import International Law
Unrelated to the Treaty Provisions Being Interpreted and Does
Not Transform Articles III(2), IV(1), or X(1) of the Treaty Into
Sources of Sovereign Immunity Rights
8.30 Lastly, Iran makes a sweeping appeal to VCLT Article 31(3)(c) for the importation of
customary international law principles of State immunity into this case. Iran claims that the
specific protections afforded to “companies” under both Articles III(2) and IV(1) may be
interpreted as preventing the other Party from denying State-owned companies (including, in
its view, its central bank) any immunities recognized under customary international law,368
and that Article X(1) (relating to “freedom of commerce and navigation” between the
territories of the two Parties) may be interpreted even more broadly – to encompass an
obligation to afford sovereign immunity protections to the Parties themselves, as well as to
State-owned companies and their property.369 Again, this theory simply is not tenable when
assessed in light of the conventional treaty interpretation analysis set forth in Sections A and
B above. Iran’s use of Article 31(3)(c) amounts to an effort to rewrite the Treaty, rather than
to interpret the text of the Treaty that the Parties actually concluded.
8.31 As discussed Chapter 5, VCLT Article 31(3)(c) is a rule of treaty interpretation and
cannot function as an independent source of substantive obligations for the treaty Parties, or
as a basis for supplementing what the treaty Parties themselves agreed to in the treaty. Its sole
purpose is to assist in interpreting the treaty text. None of the articles of the Treaty cited by
Iran in connection with its VCLT Article 31(3)(c) theory contain any reference to sovereign
immunity, nor can those provisions be properly understood as laying down rules establishing
sovereign immunity guarantees. VCLT Article 31(3)(c) cannot change that result.
8.32 The protections set out in Articles III(2) and IV(1) – as with Article IV(2) discussed
above – provide certain rights to “nationals and companies” of the other Party in their private
and professional activities, including in relation to access to the courts and treatment of their
368 As to Article III(2), see Iran’s Memorial ¶¶ 3.15-3.16, 3.20, 5.5-5.9, and as to Article IV(1), see Iran’s
Memorial, ¶¶ 5.36, 5.39, 5.41. These claims necessarily cannot include any claims relating to the treatment of
Iran itself or any Iranian-government entities that are not properly considered companies under the Treaty. In
relation to Article IV(1), however, Iran goes so far as to suggest that this article provides the Court with
jurisdiction to consider issues of sovereign immunity relating to Iran itself. See Iran’s Memorial, ¶¶ 5.36, 5.44.
Iran provides no support for such a proposition, which is flatly inconsistent with the Court’s ruling in Oil
Platforms, and the Court should reject such claims out of hand. See Oil Platforms, 1996 I.C.J. at 816, ¶ 36
(ruling that the provision concerns “the way in which the natural persons and legal entities in question are, in the
exercise of their private or professional activities, to be treated by the State concerned”).
369 Iran’s Memorial, ¶ 3.15, 6.19(a), 6.19(e).
94
property, enterprises, and other legally acquired rights and interests. To that end, the articles
provide that the other Party’s nationals and companies can claim certain protections for their
private and business activities and property, and they specify where treatment must be no less
favorable than that provided to nationals and companies of the host State or third countries.370
8.33 As with Article IV(2), where Iranian State-owned companies have rights under these
articles, it is both (a) on the same basis as private companies, which have no claim to
sovereign immunity, and (b) in connection with commercial activities, such that Article XI(4)
ensures that any immunity is waived. Iran has pointed to no practice of the Parties, travaux,
or even secondary sources that would support reading either of these standard FCN
provisions as a source of sovereign immunity protections. Because the protections set out in
those articles do not include sovereign immunity rights that State-owned companies may
have in particular circumstances, it would be inappropriate to import such rules via VCLT
Article 31(3)(c).371
8.34 Iran’s effort to bring sovereign immunity claims under Article X(1) is similarly
unavailing. Article X(1) relates to “freedom of commerce and navigation”; it provides no
foundation for a treaty obligation to afford sovereign immunity protections based on
customary international law. Iran acknowledges in its Memorial that the restrictive theory of
sovereign immunity in international law distinguishes between a sovereign’s public acts (jure
imperii), and commercial or private acts (jure gestionis).372 Yet Iran fails to explain how a
commercial treaty provision relating to freedom of commerce between the territories of the
two Parties can coherently be understood to create obligations relating to the circumstances in
which the Parties will afford sovereign immunity protections to each other’s sovereign acts.
Such protections are not commonly understood to involve “activities integrally related to
370 See generally SULLIVAN STUDY 124 (US Annex 214) (“National treatment . . . best expresses in realistic
terms the essential equity sought by the treaty as the underlying principle for the conduct of economic activities
in a foreign country; that is, the alien enterprise shall be equated with the like domestic enterprise”); id. at 319
(IM Annex 20) (for purposes of national treatment, an “alien company is entitled to be equated with the
domestic companies with which it is in like situation, namely, domestic companies organized under the general
corporation laws of the treaty partner and engaged in the same type of activity.”).
371 As a result, contrary to Iran’s contention that Bank Markazi is entitled under Article III(2) to the same
treatment as central banks of other foreign States, see Iran’s Memorial, ¶ 5.17, the relevant point of comparison
under that article would be to private U.S. or foreign companies in connection with their private and business
activities.
372 Iran’s Memorial, ¶ 3.21(c).
95
commerce.”373
8.35 Moreover, and not surprisingly given the context, Iran has pointed to no practice of
the Parties or negotiating documents indicating that Article X(1) provides affirmative
sovereign immunity protections, which in any event would have been at odds with the
Treaty’s overall aim and scope. Again, VCLT Article 31(3)(c) cannot be used to import
unrelated international law rules.
* * *
8.36 As demonstrated above, the Treaty of Amity does not codify sovereign immunity
protections for Iran, Bank Markazi, or any other Iranian State entities, and Iran cannot rely on
Articles III(2), IV(1), IV(2), X(1), or XI(4) as a basis for jurisdiction over sovereign
immunity-related claims. The Court should dismiss all such claims from the case.
IRAN CANNOT REBRAND BANK MARKAZI CHAPTER 9: AS A “COMPANY” ENTITLED TO
RIGHTS UNDER ARTICLES III, IV, AND V OF THE TREATY
9.1 Iran’s distortions of the Treaty do not end with its unsustainable sovereign immunity
claims. In tacit acknowledgment of the frailty of its case on sovereign immunity, Iran
paradoxically claims that its Central Bank, Bank Markazi, is both a sovereign entity entitled
to immunity and a “company” entitled to the protections set out in Articles III, IV, and V of
the Treaty.374 On this basis, Iran brings claims alleging breaches of Bank Markazi’s purported
rights as a “company” to recognition of juridical status, access to courts, most constant
protection and security, compensation for expropriation, and other protections arising out of
Bank Markazi’s treatment in connection with the Peterson enforcement proceeding in U.S.
courts.375 Iran’s opportunistic rebranding of Bank Markazi as a “company” whose treatment
373 Oil Platforms, 1996 I.C.J. at 819-820, ¶¶ 49-50 (concluding that Article X(1) restricts acts impeding freedom
of commerce, which it interpreted as including “commercial activities in general – not merely the immediate act
of purchase and sale, but also the ancillary activities integrally related to commerce.”).
374 Compare Iran’s Memorial, ¶¶ 5.13, 5.17, 5.44-48, 5.57-60, 6.19 (asserting that Bank Markazi’s sovereign
immunity was improperly denied in connection with claims under Articles XI(4), III(2), IV(1), IV(2), and X(1)
of the Treaty) with id. Chapter IV(1)(B), ¶¶ 4.4-4.7 (claiming that Bank Markazi is a “company” under Article
III(1) of the Treaty).
375 These claims range well beyond the question of Bank Markazi’s purported sovereign immunity rights. See,
e.g., Iran’s Memorial, ¶ 4.35 (arguing that the U.S. courts in the Peterson enforcement proceeding violated the
Article III(1) obligation to recognize juridical status with respect to Bank Markazi); id. ¶¶ 5.14-5.16 (alleging
violation of the Article III(2) obligation regarding access to courts, on multiple bases, including with specific
respect to Bank Markazi); id. ¶¶ 5.44-5.47 (alleging abrogation of the Article IV(1) obligations regarding fair
and equitable treatment, unreasonable or discriminatory measures, and effective means of enforcement,
including with specific respect to Bank Markazi); id. ¶¶ 5.60 & 5.69 (alleging abrogation of Article IV(2)
96
is governed by these provisions must also be dismissed as a threshold matter.
9.2 As set out in Section A below, both Iran and Bank Markazi itself characterize Bank
Markazi as a traditional central bank, exercising sovereign functions. According to Iran, Bank
Markazi is not a commercial entity and does not compete with ordinary commercial
enterprises. In light of this characterization, Iran’s attempt to simultaneously claim
“company” rights for Bank Markazi under the Treaty cannot succeed. As indicated in
Section B, it is clear from the Treaty’s context, object, and purpose, and from the Court’s
own jurisprudence on the interpretation of this Treaty, that Articles III, IV and V were never
intended to govern the treatment of sovereign entities such as Bank Markazi claims to be.
Rather, Articles III, IV, and V provide assurances to “companies” or “nationals and
companies” of the other High Contracting Party in their performance of private and
commercial activities. These articles do not supply rules governing the treatment to be
accorded to High Contracting Parties themselves or to their State entities carrying out
sovereign functions.376
9.3 Iran’s claims in this case based on its own or Bank Markazi’s purported entitlements
under Articles III, IV, and V therefore fall outside the scope of the articles and hence outside
the Court’s jurisdiction. The Court need not engage with the merits of Iran’s claims in order
to find that Iran cannot base any part of its claims on allegations – such as those relating to
22 U.S.C. § 8772 and the Peterson enforcement proceeding – that treatment accorded to the
Government of Iran or to its Central Bank violated Articles III, IV, or V of the Treaty. Such
claims must be dismissed for lack of jurisdiction.377
obligations regarding protection and security and compensation for expropriation, including with specific
respect to Bank Markazi); id. ¶ 5.75 (alleging abrogation of Article V(1) obligation concerning the lease,
acquisition, and disposal of property).
376 The United States made this point to the U.S. Supreme Court when its views as amicus curiae were solicited
in the course of the Peterson litigation. Brief for the United States as Amicus Curiae at 22, Bank Markazi, aka
Cent. Bank of Iran v. Deborah Peterson, et al. (No. 14-770) (S. Ct. Aug. 2015) (US Annex 238) (stating that the
Treaty’s “companies” definition “is not naturally read to include entities like [Bank Markazi],” as the “central
bank of Iran is an agency of the state that carries out sovereign functions”).
377 Because of the lack of specificity in Iran’s Memorial, it is not clear precisely what claims of what other
Iranian entities Iran seeks to espouse as claims of “companies” in this case. For example, Iran references in the
first section of its Memorial several companies that are incorporated outside of Iran, such as Bank Sepah
International PLC, Bank Melli PLC UK, and IRISL Benelux. See Iran’s Memorial, ¶ 1.17 & n.116; Bank Sepah
International PLC, About Us, available at http://www.banksepah.co.uk/?page=2 (last visited Apr. 22, 2017) (US
Annex 239) (“Based in the City of London. . . [Bank Sepah International plc] is a UK incorporated bank
specialising in providing finance and services for international trade worldwide.”); Melli Bank plc, Welcome to
Melli Bank plc, available at http://www.mellibank.com/ (last visited Apr. 22, 2017) (US Annex 240) (indicating
incorporation in the United Kingdom); Articles of Association of IRISL Benelux NV (IM Annex 88) (indicating
97
Section A: On Iran’s Own Case, Bank Markazi Is a Sovereign Entity Exercising
Sovereign Functions, Including in the Context of These Claims
9.4 Throughout its Memorial,378 Iran emphasizes Bank Markazi’s role as its central bank,
and the immunity that Bank Markazi is allegedly owed as a “specific entitlement” due to that
status.379 Iran places particular emphasis on the sovereign functions of a central bank such as
Bank Markazi:
The essential duty of a central bank is to serve as the guardian and
regulator of the monetary system and currency of that State both internally
and internationally. Central banks therefore play a key role in the exercise
of a State’s monetary sovereignty.380
9.5 As Iran states in its Memorial, Bank Markazi receives its personality from Iran’s 1972
Monetary and Banking Act.381 That Act provides that Bank Markazi “shall have the task of
formulating and implementing monetary and credit policies on the basis of the general
economic policy of the State,” and that the “objectives of the Central Bank of the Islamic
Republic of Iran are to maintain the value of the currency and the equilibrium in the balance
of payments, to facilitate trade transactions, and to assist the economic growth of the
country.”382 The chapter of that Act setting out the Bank’s “functions and powers” states that
the Central Bank serves “as the regulatory authority of the monetary and credit system of the
State” and “as the banker to the Government,”383 and that the Bank also has the power to
incorporation in Belgium). To the extent that any of Iran’s claims relate to purported Treaty breaches concerning
such entities, they must be dismissed as outside the Court’s jurisdiction. Article III(1) of the Treaty refers to
“[c]ompanies constituted under the applicable laws and regulations of either High Contracting Party,” and
Articles III(2), IV, and V each extend only to “nationals and companies of either High Contracting Party.” Iran
appears to acknowledge that the Court lacks jurisdiction over these claims, as it does not mention these three
entities in the section of its Memorial describing the purported “Iranian entities at issue” in this case (Iran’s
Memorial, ¶¶ 4.7-4.15), but it is not clear why these entities are referenced elsewhere in its Memorial, or why
Iran annexed the articles of association of one of the entities. Moreover, should any portion of Iran’s case be
held over to the merits, the United States reserves all rights to raise additional objections to Iran’s claims.
378 Because this objection to jurisdiction may be resolved as a legal matter on the face of Iran’s case as it is
pleaded, it is not necessary for the United States to take, and it does not take, any position with regard to Bank
Markazi’s status or its activities at issue in this case.
379 Iran’s Memorial, ¶ 1.25; see also id. ¶ 2.34 (central bank should receive special immunity); id. ¶¶ 3.23, 3.25
(central bank should be immune regardless of whether it is a separate juridical person from the State); id. ¶ 3.40
(special protection for central bank).
380 Id. ¶ 3.24 (emphasis added).
381 Id. ¶ 4.7; id. Monetary and Banking Act, art. 10(c) (IM Annex 73).
382 Monetary and Banking Act (IM Annex 73), art. 10(a) & (b).
383 Id. arts. 11 & 12.
98
“intervene in and supervise over monetary and banking affairs.”384 Further, the Governor of
the Central Bank is to serve as “the representative of the State at the International Monetary
Fund,” and the “liaison of the State with the International Monetary Fund shall be through the
Central Bank[.]”385
9.6 Structurally, the 1972 Act makes clear that Bank Markazi, while having juridical
status as an entity,386 will be subject to the control of the Iranian government. The President
of Iran serves directly as Chairman of the Bank’s General Assembly – the powers of which
include election of members of the Bank’s Supervisory Board and setting the salaries of the
Bank’s Governor and Vice-Governor – and each of the remaining members of the Assembly
is a cabinet-level minister. 387 The Governor of the Central Bank is nominated by the
President of Iran, confirmed by the Central Bank’s General Assembly, and then appointed by
decree of the President.388
9.7 With specific regard to the Peterson enforcement proceeding that Iran places at issue
here, Bank Markazi explicitly took the position that it acted in a sovereign – not commercial
– capacity in all relevant respects. While the United States does not have access to all of Bank
Markazi’s pleadings because it was not a party and relevant filings before the District Court
were sealed, there is certainly no indication that Bank Markazi contended that it was
operating in the manner of a private company in any relevant respect. Bank Markazi argued
that the assets at issue were not subject to attachment and enjoyed central bank immunity
because they were purportedly being “used for the classic central banking purpose of
384 Id. art. 14.
385 Id. art. 15; see International Monetary Fund, IMF Members’ Quotas and Voting Power, and IMF Board of
Governors, available at http://www.imf.org/external/np/sec/memdir/members.aspx#I (listing Valiollah Seif,
Governor of the Central Bank of Iran, as Iran’s IMF Governor, and Gholamali Kamyab, the Central Bank’s Vice
Governor for Foreign Exchange Affairs, as alternate) (last visited Apr. 22, 2017) (US Annex 241); see also
Central Bank of the Islamic Republic of Iran, Executive Board and Vice Governors, available at
http://www.cbi.ir/simplelist/1389.aspx (last visited Apr. 22, 2017) (US Annex 242).
386 Monetary and Banking Act (IM Annex 73), art. 10(c) (the Central Bank “enjoys legal personality and shall
be governed by the laws and regulations pertaining to joint-stock companies in matters not provided for in this
Act”).
387 Id. arts. 17 & 20 (note that the translation provided by Iran uses the term “General Meeting,” while the
English webpage of the Central Bank of Iran uses “General Assembly.” The latter has been adopted here.);
Central Bank of the Islamic Republic of Iran, Organization, available at http://www.cbi.ir/page/1383.aspx (last
visited Apr. 22, 2017) (US Annex 243). In addition to the President, the General Assembly includes the Minister
of Economic Affairs and Finance, the Head of the State Management and Planning Organization, the Minister of
Industry, Mines, and Trade, and one further minister selected by the Council of Ministers.
388 Monetary and Banking Act, art. 19(a), note 35 (IM Annex 73); Central Bank of Iran, Organization (US
Annex 243).
99
investing Bank Markazi’s currency reserves.”389 In a related but separate proceeding, Bank
Markazi similarly argued to the U.S. Court of Appeals for the Second Circuit that the waiver
of sovereign immunity contained in Article XI(4) of the Treaty did not apply to it because the
waiver “applies only to ‘enterprises’ engaged in ‘business activity,’ not to instrumentalities
acting in a sovereign capacity (such as Bank Markazi), irrespective of the commercial nature
of the acts they engage in while performing their sovereign functions.”390
9.8 Iran’s and Bank Markazi’s position is therefore clear: Bank Markazi has acted, at least
in the context of this case, in its sovereign capacity as a traditional central bank, performing
classic central-bank functions. According to Iran, Bank Markazi does not operate on the same
plane as ordinary commercial enterprises; rather, it is a sovereign entity, with no privatesector
counterpart.
Section B: As an Entity Purportedly Exercising Exclusively Sovereign Functions, Bank
Markazi Cannot Claim Protections as a “Company” Under the Treaty
9.9 Iran’s claims relating to the treatment of Bank Markazi in its role as a central bank
purportedly carrying out entirely sovereign functions are outside the scope of the protections
provided to “companies” under Articles III, IV, and V of the Treaty, and should therefore be
dismissed as a preliminary matter. These articles do not govern how the Parties treat entities
of the other Party carrying out sovereign functions. This is the inevitable conclusion flowing
from a good-faith review of the articles’ plain text, in context and in light of the Treaty’s
object and purpose.391 It is confirmed by the negotiating history of this and other similar
treaties. Iran, for its part, has cited no sources at all in support of its novel view that a State
entity exercising sovereign functions should qualify as a “company” whose treatment is
governed by these Treaty articles.
9.10 As Iran acknowledges in its Memorial, 392 Articles III, IV, and V impose certain
obligations on the Parties concerning the treatment of “companies” or “nationals and
389 Brief for Defendant-Appellant at 35-36, Peterson (2d Cir. Nov. 19, 2013) (US Annex 233). See also Opinion
and Order at 40, Peterson (S.D.N.Y. Feb. 28, 2013) (IM Annex 58) (referencing Bank Markazi’s argument that
the assets “are immune central banking assets under FSIA § 1611(b)(1)”).
390 Brief for Defendant-Appellee at 38, Peterson (2d Cir. Aug. 31, 2015) (US Annex 235) (emphasis added).
391 VCLT, art. 31.
392 Iran’s Memorial, Chapter IV (“Iran’s Entitlement to the Recognition of the Separate Juridical Status of Its
Companies Under Article III(1) of the Treaty of Amity”) & Chapter V (“Breach of Protections Under Articles
III(2), IV(1), IV(2), and V(1) of the Treaty of Amity Granted Expressly in Respect of Nationals and
Companies”).
100
companies,”393 but impose no such obligations with regard to treatment of the other Party in
its own right. Iran accordingly makes no attempt to argue that the Government of Iran should
itself be considered a “company,”394 nor could it be heard to do so.
9.11 The term “companies” is defined in Article III(1) of the Treaty to mean “corporations,
partnerships, companies and other associations, whether or not with limited liability and
whether or not for pecuniary profit.” Contrary to what Iran would have the Court believe, the
analysis as to whether a State entity is eligible for the protections granted to “companies” in
Articles III, IV, and V cannot simply begin and end with the question of whether the entity
has separate juridical status, and so sweep in even State entities carrying out sovereign
functions, such as traditional central banks or other government bodies. 395 The term
“companies” is not naturally read to include such entities, nor do the protections provided by
the Treaty to “companies” pertain to how the Parties will treat each other’s government
entities carrying out sovereign functions. Only by reading Article III(1) in complete isolation,
ignoring context, object, purpose, and negotiating history, could such a result be achieved.
Whether a government entity is entitled to protections as a “company” within the meaning of
the Treaty does not depend on its name or its articles of incorporation, but rather on the
functions it performs. This functional understanding is the only way to make sense of the
Treaty’s provisions.
9.12 As discussed in Chapters 2 and 8, this Treaty – like similar FCN treaties – sought to
further commercial relations between the Parties by codifying various basic treatment
obligations that each Party would observe with respect to each other’s “nationals” and
393 In context, the Treaty makes clear that a “national” is a natural person, a point which Iran apparently does not
dispute. See Treaty Articles II(1) (nationals may enter and remain in territories); II(2) (nationals may be
permitted to travel and reside, enjoy freedom of conscience and the right to hold religious services, may engage
in the practice of professions); II(4) (nationals when in custody shall receive reasonable and humane treatment,
consular representation, prompt information of accusations, and “a prompt and impartial disposition of his
case”); XIX (consular officers have the right to assist their nationals, and nationals have the right to
communicate with and visit consular officers).
394 Nonetheless, as indicated supra n.368, Iran inexplicably includes arguments under Article IV(1) concerning
treatment of Iran itself. See Iran’s Memorial, ¶¶ 5.36, 5.44. Such arguments are at odds with the plain text of the
article and cannot be accepted. Article IV(1) provides protections to “nationals and companies,” not to the High
Contracting Parties themselves. Moreover, to the extent Iran bases its Article III, IV, or V claims on the Ministry
of Defense of Iran et al. v. Cubic Defense System case discussed at paragraph 2.62 of its Memorial, those claims
must also be dismissed for lack of jurisdiction. The Iranian Ministry of Defense is unquestionably a part of the
Government of Iran, and cannot be a “company” afforded rights under the Treaty.
395 Cf. Iran’s Memorial, ¶¶ 4.4-4.6.
101
“companies,” creating an environment conducive to investment and commerce.396
9.13 In pursuance of the Treaty’s objectives, and recognizing the increasing role of Stateowned
business enterprises in the economic sphere, the Parties to this and other FCN treaties
agreed that State-owned enterprises acting in the marketplace alongside private companies –
and only those enterprises, as Iran has previously accepted397 – would enjoy such treaty
rights, but that they should not occupy a privileged position by virtue of their government
ownership.398 Accordingly, such enterprises were singled out in several provisions that have
the “unifying theme” of “restraint of unfair competition.”399 The relevant provisions are set
out in Article XI of the Treaty of Amity (titled “Cartels and State Business Practices” in the
Standard Draft FCN Treaty400). As previously discussed in Chapter 8, the immunity waiver
provision (Article XI(4)) sought to “ensure that state-owned enterprises with a claim to treaty
rights would not be able to escape the liabilities to which private United States enterprises in
competition with them were subject.”401
9.14 As Setser explained, “[i]f treaty assurances are to be given to foreign economic
enterprises, then it is reasonable and appropriate to provide for equalization of the situation in
the event that foreign state enterprises become competitors of American or the treatyprotected
alien private enterprises.” 402 Where State entities are concerned, Article XI
396 Oil Platforms, 1996 I.C.J. at 813-814, ¶ 27 (noting protections pertaining to “the status of companies and
access to the courts and arbitration (Art. III), safeguards for the nationals and companies of each of the
contracting parties as well as their property and enterprises (Art. IV), the conditions for the purchase and sale of
real property and protection of intellectual property (Art. V). . . .”).
397 See Brief for Appellants at 35, Elec. Data Sys. Corp. Iran (5th Cir. Aug. 15, 1979) (US Annex 228) (arguing
that “commercial treaties such as the Treaty of Amity do not apply to proprietary acts of a sovereign but govern
only economic enterprises controlled by a foreign state that are in competition with private enterprises for
economic profits” (emphasis added)). See also Setser, 55 AM. SOC. INT’L L. PROC at 101 (US Annex 229) (“The
commercial treaties do not concern themselves in any very significant way with the regulation of the normal
functions of government in its proprietary capacity.”).
398 See supra Section Chapter 8, Sec. A. See also SULLIVAN STUDY at 263-64 (US Annex 214) (use of term
“commercial considerations” in article on State trading [Article XI(1) in the Iran Treaty] indicates rules “are not
intended to apply to transactions by a government in its sovereign capacity, as for example, in the purchase of
arms, but to transactions by the Government in the capacity of a merchant or entrepreneur. . . . [T]he intent is to
seek to ensure that state trading organizations act as though they were private companies interested solely in
making the best possible business deals”; provision is intended to “establish certain rules to enable private
businesses to co-exist with state trading organizations”); and 266 (article on government contracting [Article
XI(2) in the Iran Treaty] “seeks to regulate situations in which private enterprise directly faces the state”).
399 SULLIVAN STUDY 270 (IM Annex 20).
400 Id.
401 Id. at 272.
402 Setser, 55 AM. SOC. INT’L L. PROC. at 101, 104 (US Annex 229).
102
therefore provides indispensable context for interpreting the Treaty’s treatment obligations,
including those set out in Articles III, IV, and V.
9.15 When government entities carry out sovereign functions, rather than operating as
commercial enterprises, the very nature of such functions means that they cannot be acting
like private companies. They are instead operating in a realm that is not the subject of a
commercial treaty.403 Such functions are simply not regulated by the Treaty’s “nationals and
companies” treatment provisions, which as discussed in Chapter 8 apply to private and State
entities on the same basis in conducting their private and business affairs. Articles III, IV, and
V do not set out rules governing how the Parties will treat traditional central banking
activities of the other Party any more than they can be understood to regulate activities
relating to government agencies carrying out foreign assistance or military activities.404 Nor
is it even clear how such provisions could be coherently applied to such activities. As the
Court held in its Oil Platforms Judgment on Preliminary Objections (with regard to
Article IV(1)),
The whole of these provisions is aimed at the way in which the natural
persons and legal entities in question are, in the exercise of their private or
professional activities, to be treated by the State concerned. In other
words, these detailed provisions concern the treatment by each party of the
nationals and companies of the other party, as well as their property and
enterprises. Such provisions do not cover the actions carried out in this
case by the United States against Iran.405
9.16 Given that State entities exercising sovereign functions were never intended to fall
within the “private and professional activities” scope of the Treaty’s “nationals and
companies” provisions, such entities were also logically considered to fall outside the scope
of the Treaty’s immunity waiver: the waiver applied only to those State entities in
competition with private enterprises. For example, in the case of a central bank, the U.S.
negotiators of the analogous Netherlands FCN treaty noted:
There can be said to be a presumption . . . that a State’s “central bank”
which acts as an arm of the Government in executing the Government’s
403 See supra Chapter 2, Sec. A; Chapter 8, Secs. A & C.
404 In fact, where the Treaty of Amity does expressly address central banking activities, in Article VII
concerning the application of exchange restrictions, it does so in a provision addressed to the High Contracting
Parties themselves. Had the Parties wanted the protections in Articles III, IV, and V to pertain to the treatment
of government entities acting in a sovereign capacity, presumably they would similarly have made such
provision explicit by including a reference to the High Contracting Parties.
405 Oil Platforms, 1996 I.C.J. at 816, ¶ 36 (emphasis added).
103
monetary control and fiscal policy represents the Government in its
sovereign capacity, and is not a commercial (or business) enterprise within
the purview of the [immunity waiver] provision. This presumption is, of
course, rebuttable if the evidence in the instance of a given central bank
does not bear it out.406
9.17 It is thus of great significance for purposes of the Treaty’s application whether the
State entity in question is exercising what Iran has referred to in prior litigation as
“proprietary functions” of the government407 or if it instead acts like a private commercial
enterprise. For example, in the prior litigation in U.S. federal court described in Chapter 8
concerning a contract claim against Iran, its Social Security Organization (SSO), and its
Ministry of Health and Welfare, Iran argued that the SSO – a separate juridical entity from
the government itself408 – could not be an “enterprise” under Article XI(4) of the Treaty
because it was not “established for commercial purposes” and had “never engaged in
competition with domestic enterprises.”409 Were such an entity insulated from the obligations
of Article XI, including the waiver of immunity, but simultaneously considered a “company”
entitled to protection under the Treaty’s treatment articles, the careful equilibrium sought by
the Treaty drafters would be disrupted.
9.18 The Treaty of Amity’s negotiating history reveals no intention of the Parties to cause
such a disruption. Iran and the United States unsurprisingly agreed that the term “companies”
in the Treaty of Amity would not be categorically limited to “privately owned”410 entities,
given the need to address the “trend toward state enterprises” in the business arena.411 Iran
indicated simply that it wished it to be “understood that all Iranian companies operating in
the United States would enjoy the benefits of Article III, including those Iranian companies
406 Department of State Instruction A-52 to Embassy The Hague, Aug. 4, 1953, at 2, in Brief for the United
States, Appendix C, Elec. Data Sys. Corp. Iran (2d Cir. Oct. 18, 1979) (US Annex 231).
407 Brief for Appellants at 36, Elec. Data Sys. Corp. Iran (5th Cir. Aug. 15, 1979) (US Annex 228).
408 Brief for Defendants-Appellants at 40-41, Elec. Data Sys. Corp. Iran (5th Cir. Oct. 1, 1980) (US Annex 230)
(“Under the Social Security law of Iran, SSO is a separate juridical entity; it is subject to its own specific
regulations concerning its financial applications[.] . . . SSO can sue and be sued in the court of Iran[.]”).
409 Brief for Appellants at 36, Elec. Data Sys. Corp. Iran (5th Cir. Aug. 15, 1979) (US Annex 228). See also
Brief for Defendants-Appellants at 29, Elec. Data Sys. Corp. Iran (5th Cir. Oct. 1, 1980) (US Annex 230)
(arguing that the SSO’s “function is exclusively governmental” and it has “no counterpart in the private sector”).
410 Letter of the U.S. Embassy in Tehran to the U.S. Department of State, Oct. 16, 1954, p. 3 (IM Annex 2).
411 Telegram of the U.S. Department of State to the U.S. Embassy in Tehran, Dec. 13, 1954 (IM Annex 5); see
supra Chapter 8, Sec. A (history and purpose of Article XI(4)).
104
which might be financed in whole or in part by the Government of Iran.”412 There was no
suggestion by either Party, however, that the Treaty’s provisions should depart from normal
FCN practice and govern the treatment of entities exercising the sovereign powers of their
governments.
9.19 In sum, the obligations contained in Articles III, IV, and V must be read naturally and
in their proper context, meaning, where a State entity is concerned, in concert with Article
XI. Entities that exercise sovereign functions – acting as “the State as such”413 – are not
properly considered “companies” under the Treaty, and the manner in which such entities are
treated is not regulated by the rules set out in these articles. This being the case, Iran’s claims
relating to the treatment of Bank Markazi fall outside of the “company” protections in
Articles III, IV, and V and must be dismissed.
* * *
9.20 Iran does not claim that Bank Markazi was established for commercial purposes to
compete with private banking institutions, nor that it engages in any commercial or business
activities in the United States. Instead, it emphasizes Bank Markazi’s sovereign role. But
Bank Markazi cannot on the one hand be acting as Iran’s Central Bank in a sovereign
capacity and purportedly immune from jurisdiction and enforcement, and on the other hand
be a “company” engaged in commerce and entitled to rights that apply in the private and
commercial sphere under Articles III, IV, and V of the Treaty. Iran’s claims concerning the
treatment of Bank Markazi must therefore be dismissed as outside the scope of these articles
and hence outside of the Court’s jurisdiction.
CHAPTER 10: CONCLUDING OBSERVATIONS
10.1 The Court should not permit Iran’s claims to proceed. As the United States has
established, the Court can and should reject Iran’s claims as inadmissible in their entirety.
412 Letter of the U.S. Embassy in Tehran to the U.S. Department of State, Oct. 16, 1954, p. 3 (IM Annex 2); see
Aide Memoire of the U.S. Embassy in Tehran, Nov. 20, 1954, at 1 (IM Annex 3) (same).
413 SULLIVAN STUDY, p. 318 (IM Annex 20); see also WILSON at 328-329 (“These [U.S. commercial] treaties
look primarily to the needs of individual human beings and private companies, rather than to rights of
collectivities of people (the party states) as such. Eight of the nine ‘establishment’ subjects that have received
special attention in the present study touch individuals directly, while the ninth (on companies) touches them
indirectly. . . . . Directed to practical problems in day-to-day relations of individuals and companies with
foreign governments, this type of agreement seems to receive less publicity and to arouse less nationalistic
feeling than do other types of international legal arrangements.” (emphasis added)).
105
Iran’s attempt to found jurisdiction on the Treaty, in the face of the long-running absence of
normal, ongoing commercial and consular relations between the two States, is not a genuine
attempt to vindicate the interests protected by the Treaty, and its claims should be rejected as
an abuse of right. Additionally, Iran brings these claims to the Court with hands sullied by,
among other grave transgressions, decades of sponsorship of terrorist acts that have earned it
widespread condemnation. The equities weigh heavily against granting Iran a day in court,
and the doctrine of clean hands provides the Court with a firm basis on which to declare
Iran’s application inadmissible.
10.2 As to the jurisdictional footing for its case, while Iran may disagree with the U.S.
actions at issue on the basis of other sources of law beyond the Treaty, this Court does not
have jurisdiction to hear claims that go beyond disputes concerning the interpretation or
application of the Treaty. The Treaty is a narrow instrument based on the consent of the
parties, and Iran cannot unilaterally expand it for purposes of putting its case before the
Court.
10.3 Iran’s overreach is manifest in its complaints as to the U.S. measures blocking Iranian
assets. The United States has shown that these measures are necessary responses to Iran’s
actions and thus excluded from the Treaty’s scope by operation of Article XX(1). It is clear
by reference to public sources and statements that these measures were intended to regulate
both Iranian arms trafficking to terrorist organizations and Iran’s own attempts to develop
ballistic missiles. Moreover, they were necessary to protect the United States’ essential
security interests in preventing Iranian support for and financing of terrorism, and preventing
Iranian weapons proliferation. These are not just the essential security interests of the United
States: the active role that the UN Security Council has assumed in addressing Iran’s
misconduct and the threat posed by terrorism demonstrates that Iran’s actions have also posed
a threat to international peace and security. The United States’ peaceful measures taken to
address these risks and protect its national security, adopted only after Iran had persistently
evaded earlier, narrower measures, were necessary steps.
10.4 Iran’s claims concerning its Central Bank are a further case in point. In an effort to
bring the Peterson enforcement proceeding before this Court by any means, Iran first insists
that Bank Markazi is entitled to sovereign immunity as a purportedly traditional, noncommercial
central bank, but then endeavors to rebrand the Bank as an ordinary Iranian
entity whose treatment is governed by the “nationals and companies” articles of the Treaty.
This is simply smoke and mirrors. The United States has established, by application of
106
familiar principles of treaty interpretation, that sovereign immunity is not a subject matter on
which this Treaty provides the applicable law, except within the narrow confines of the
Treaty’s immunity waiver. In the only instance where the Treaty does supply immunity of
any kind (to consular officials), it does so expressly. Reading implicit immunity protections
into the Treaty, as Iran demands, would run counter to the Treaty’s context, object, purpose,
practice, and history. And for fundamentally similar reasons – the Treaty’s object of
addressing commercial matters, and not the sovereign activities of the respective parties in
their own right – neither the Government of Iran nor its Central Bank may claim protections
under provisions of the Treaty that explicitly accord such protections only to “nationals and
companies.”
10.5 For the reasons given above, the Court should reject this case as inadmissible. If it
does not do so, the Court should at the very least dismiss the three categories of claims that
the United States has identified for lack of jurisdiction, namely, those concerning sovereign
immunity; those concerning Iran itself or Bank Markazi under Articles III, IV, or V; and
those concerning Executive Order 13599.
107
SUBMISSIONS
In light of the foregoing, the United States of America requests that the Court uphold
the objections set forth above as to the admissibility of Iran’s claims and the jurisdiction of
the Court, and decline to entertain the case. Specifically, the United States of America
requests that the Court:
(a) Dismiss Iran’s claims in their entirety as
inadmissible.
(b) Dismiss as outside the Court’s jurisdiction all
claims that U.S. measures that block or freeze
assets of the Iranian government or Iranian
financial institutions (as defined in Executive
Order 13599) violate any provision of the
Treaty.414
(c) Dismiss 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.415
(d) Dismiss as outside the Court’s jurisdiction all
claims of purported violations of Articles III,
IV, or V of the Treaty that are predicated on
414 See Iran’s Memorial, ¶ 4.29 (asserting that E.O. 13599 breaches Article III(1) on recognition of juridical
status); 5.12-5.14 (asserting that E.O. 13599 breaches Article III(2) on access to courts); id. ¶¶ 6.5-6.9 (asserting
that E.O. 13599 breaches Article VII(1) on freedom from restrictions on transfers of funds); id. ¶ 6.19 (asserting
that “[t]he blocking of the assets of Iran, Iranian agencies and instrumentalities, and of companies that are
owned or controlled by Iran” breached Article X(1) on freedom of commerce).
415 See Iran’s Memorial, ¶¶ 5.13, 5.44, 6.19 (asserting that Iran’s sovereign immunity was improperly denied in
connection with claims under Articles XI(4), IV(1), and X(1) of the Treaty); id. ¶¶ 5.13, 5.17, 5.44-48, 5.57-60,
6.19 (asserting that Bank Markazi’s sovereign immunity was improperly denied in connection with claims under
Articles XI(4), III(2), IV(1), IV(2), and X(1) of the Treaty); id. ¶ 5.18 (asserting that other Iranian state-owned
companies were not afforded sovereign immunity protections available under U.S. law to agencies and
instrumentalities of foreign states not designated as State sponsors of terrorism, in connection with claims under
Article III(2) of the Treaty).
May 1, 2017
treatment accorded to the Government of Iran or
to Bank Markazi.416
Respectfully submitted,
Richard C. Visek
Agent of the United States
of America
416 The only claim Iran has explicitly raised under these articles as to treatment of the Government oflran itself
is under Article IV( I), concerning sovereign immunity. See preceding footnote. For non-immunity-related
claims concerning Bank Markazi, see Iran 's Memorial ,,[~ 4.27-4.29 (arguing that a section of the 2012 Iran
Threat Reduction and Syria Human Rights Act on the Peterson enforcement proceeding, as well as E. O. 13599,
violated the Article III( I) obligation to recognize juridical status, including with respect to Bank Markazi); id.
,[ 4.35 (arguing that the U.S. courts in the Peterson enforcement proceeding violated the Article III( I) obligation
to recognize juridical status with respect to Bank Markazi); id. ~~ 5.14-5.16 (alleging violation of the Article
III(2) obligation regarding access to courts, on multiple bases, including with respect to Bank Markazi); id.
~~ 5.44-5.49 (alleging abrogation of Article IV(l) obligations regarding fair and equitable treatment,
unreasonable or discriminatory measures, and effective means of enforcement, including with respect to Bank
Markazi); id. 11 5.60 & 5.69 (alleging abrogation of Article IV(2) obligations regarding protection and security
and compensation for expropriation, including with respect to Bank Markazi); id. ~ 5. 75 (alleging abrogation of
Article V(l) obligation concerning the lease, acquisition, and disposal of property). In addition, given Iran's
argument that Bank Markazi is a "company" under the Treaty, any of Iran's claims based generically on the
treatment purportedly accorded to " Iranian companies" may be intended to include Bank Markazi.
108
CERTIFICATION
I, Richard C. Visek, Agent of the United States of America, hereby certify that the
copies of this pleading and all documents annexed to it are true copies of the originals and
that all translations submitted are accurate.
May 1, 2017
Richard C. Visek
Agent of the United States
of America
109
1
List of Annexes Accompanying the Preliminary Objections
Submitted by the United States of America
May 1, 2017
ANNEX DESCRIPTION
1
Herman Walker, Jr., Modern Treaties of Friendship, Commerce and Navigation,
42 MINN. L. REV. 805 (1958)
2
Herman Walker, Jr., The Post-War Commercial Treaty Program of the United
States, 73 POL. SCI. Q. 57 (1958)
3
Herman Walker, Jr., Treaties for the Encouragement and Protection of Foreign
Investment: Present United States Practice, 5 AM. J. COMP. L. 229 (1956)
4
Wolfgang Saxon, “Herman Walker, 83, Professor and U.S. Foreign Officer,
Dies,” N.Y. Times (May 13, 1994)
5 Spiess v. C. Itoh & Co. (America), Inc., 643 F.2d 353 (5th Cir. 1981)
6
Memorandum from Willard Thorp, Assistant Secretary for Economic Affairs, to
Jack K. McFall, Assistant Secretary for Legislative Affairs (Dec. 29, 1951)
7
Commercial Treaties with Iran, Nicaragua, and The Netherlands: Hearing
Before the S. Comm. on Foreign Relations, 84th Cong. (1956) (statement of
Thorsten V. Kalijarvi, Dep’t of State)
8
“FOA Announces Program of Aid to Iran,” in 31 DEP’T OF STATE BULL. 776
(Nov. 22, 1954)
9
Agricultural Commodities Agreement Between the United States and Iran under
Title I of the Agricultural Trade Development and Assistance Act, As Amended
(July 26, 1960), T.I.A.S. 4544, 384 U.N.T.S. 141
10
General Agreement for Economic Cooperation Between the Government of the
United States of America and the Imperial Government of Iran (Dec. 21, 1961),
T.I.A.S. 4930, 433 U.N.T.S. 269
11
Agreement Relating to the Establishment of a Peace Corps Program in Iran, U.S.-
Iran (Sept. 16, 1962), T.I.A.S. 7078, 791 U.N.T.S. 19
12
Agreement Between the Government of the United States of America and the
Imperial Government of Iran for Financing Certain Educational Exchange
Programs (Oct. 24, 1963), T.I.A.S. 5451, 489 U.N.T.S. 303
13
Declaration Respecting the Baghdad Pact (July 28, 1958), T.I.A.S. 4084, 335
U.N.T.S. 205
14
Agreement of Cooperation Between the Government of the United States of
America and the Imperial Government of Iran (Mar. 5, 1959), T.I.A.S. 4180
2
ANNEX DESCRIPTION
15
Memorandum of Understanding Between the Plan and Budget Organization of
the Imperial Government of Iran and the United States National Aeronautics and
Space Administration (Oct. 29, 1974), T.I.A.S. 8203, 1020 U.N.T.S. 155
16
Memorandum of Understanding Between the Government of Iran, Imperial
Iranian Army, and the Government of the United States of America, General
Services Administration, Federal Preparedness Agency (Nov. 22, 1975), T.I.A.S.
8209
17
Agreement on Technical Cooperation Between the Government of the United
States of America and the Imperial Government of Iran (Mar. 4, 1975), T.I.A.S.
8235
18
Declarations of the Government of the Democratic and Popular Republic of
Algeria concerning commitments and settlement of claims by the United States
and Iran with respect to resolution of the crisis arising out of the detention of 52
United States nationals in Iran, with Undertakings and Escrow Agreement (Jan.
19, 1981), 20 I.L.M. 223
19 U.S. Dep’t of Defense, TERRORIST GROUP PROFILES (1988)
20
Letter from Luc de La Barre de Nanteuil, Permanent Representative of France to
the United Nations, to the Secretary-General of the United Nations, U.N. Doc.
S/15420 (Sept. 21, 1982)
21
Letter from Charles M. Lichenstein, Acting Permanent Representative of the
United States of America to the United Nations, to the Secretary-General of the
United Nations, U.N. Doc. S/15435 (Sept. 24, 1982)
22
Exchange of Notes Constituting an Agreement Between the United States of
America and Lebanon on United States Participation in a Multinational Force in
Beirut (Aug. 20, 1982), 1751 U.N.T.S. 4, 21 I.L.M. 1196 (1982)
23 Matthew Levitt, The Origins of Hezbollah, The Atlantic (Oct. 23, 2013)
24
Thomas L. Friedman, “Beirut Death Toll at 161 Americans; French Casualties
Rise in Bombings; Reagan Insists Marines Will Remain; Buildings Blasted,”
N.Y. Times (Oct. 24, 1983)
25 “Beirut Death Toll Is 241,” N.Y. Times (Dec. 15, 1983)
26
“Hashemi-Rafsanjani on Alleged McFarlane Visit,” Tehran Radio Domestic
Service, in VII Foreign Broadcast Information Service Daily Rep. 11 (Nov. 5,
1986)
27
“Speech of Our Brother Rafiqdoust at One of the Country’s Factories for
Defense,” Ressalat (July 20, 1987)
28
Thomas L. Friedman, “U.S. Beirut Embassy Bombed; 33 Reported Killed, 80
Hurt; Pro-Iran Sect Admits Action,” N.Y. Times (Apr. 19, 1983)
3
ANNEX DESCRIPTION
29
John Kifner, “23 Die, Including 2 Americans, in Terrorist Car Bomb Attack on
the U.S. Embassy at Beirut; Blast Kills Driver,” N.Y. Times (Sept. 21, 1984)
30
Hernán Cappiello, “Iran Charged for Attack on AMIA” [“Acusan a Irán por el
ataque a la AMIA”], La Nación (Oct. 26, 2006)
31 “Buenos Aires bomber ‘identified,’” BBC News (Nov. 10, 2005)
32
Interpol Media Release, “INTERPOL General Assembly upholds Executive
Committee decision on AMIA Red Notice dispute” (Nov. 7, 2007)
33
Judgment of the Superior Court of Justice, Berlin, in the Mykonos trial
[Kammergericht: Urteil im ‘Mykonos’ –Prozess] (Apr. 10, 1997)
34
Federal Bureau of Investigation Press Release, “Imam from Trinidad Convicted
of Conspiracy to Launch Terrorist Attack at JFK Airport” (May 26, 2011)
35
“Iran ‘in Latin America terror plot’ - Argentina prosecutor,” BBC News (May 29,
2013)
36
UN GAOR, 62nd Sess., 5th plen. Mtg., Address by Nestor Carlos Kirchner,
President of the Argentine Republic, U.N. Doc. A/62/PV.5 (Sept. 25, 2007)
37
UN GAOR, 63rd Sess., 5th plen. Mtg., Address by Cristina Fernandez de
Kirchner, President of the Argentine Republic, U.N. Doc. A/63/PV.5 (Sept. 23,
2008)
38
UN GAOR, 64th Sess., 5th plen. Mtg., Address by Cristina Fernandez de
Kirchner, President of the Argentine Republic, U.N. Doc. A/64/PV.5 (Sept. 23,
2009)
39
UN GAOR, 62nd Sess., Agenda item 8, Letter from the Permanent
Representative of Argentina to the UN addressed to the President of the General
Assembly, U.N. Doc. A/62/519 (Nov. 2, 2007)
40
UN GAOR, 63rd Sess., Agenda item 8, Letter from the Permanent Representative
of Argentina to the UN addressed to the President of the General Assembly, U.N.
Doc. A/63/523 (Nov. 7, 2008)
41
UN. GAOR, 64th Sess., Agenda item 8, Letter from the Permanent
Representative of Argentina to the UN addressed to the President of the General
Assembly, U.N. Doc. A/64/505 (Oct. 28, 2009)
42
UN GAOR, 70th Sess., Agenda items 85 and 108, Letter from the Permanent
Mission of Bahrain to the UN addressed to the Secretary General, U.N. Doc.
A/70/445 (Oct. 26, 2015)
43
“In Kenya, two Iranians get life in prison for plotting attacks,” L.A. Times (May
6, 2013)
44 Cyrus Ombati, “Iranians’ 30-bomb plot in Kenya,” The Standard (July 4, 2012)
4
ANNEX DESCRIPTION
45
Federal Bureau of Investigation Press Release, “Russell Defreitas Sentenced to
Life in Prison for Conspiring to Commit Terrorist Attack at JFK Airport” (Feb.
17, 2011)
46
Federal Bureau of Investigation Press Release, “Kareem Ibrahim Sentenced to
Life in Prison for Conspiring to Commit Terrorist Attack at JFK Airport” (Jan.
13, 2012)
47
Parliamentary Human Rights Group, Iran: State of Terror, An account of terrorist
assassinations by Iranian agents (1996)
48
“EU Members Urged Not to Send Ambassadors Back to Iran,”
RadioFreeEurope/RadioLiberty (May 9, 1997)
49
Declaration by the Presidency on behalf of the European Union on Iran (Apr. 10,
1997)
50
EU Press Release No. 26/97, “European Union Declaration on Iran” (Apr. 29,
1997)
51
Marilyn Raschka, “Body Dumped in Beirut Identified as Buckley’s: Hostage:
Former senior CIA official, kidnapped in 1984, was reported slain in 1985,” LA
Times (Dec. 28, 1991)
52 S.C. Res. 618, U.N. Doc. S/RES/618 (July 29, 1988)
53
Timothy McNulty, “FBI: Higgins Most Likely Is Hanged Man,” Chicago Tribune
(Aug. 8, 1989)
54
Chris Hedges, “The Last U.S. Hostage; Anderson, Last U.S. Hostage, Is Freed By
Captors in Beirut,” N.Y. Times (Dec. 5, 1991)
55
Clyde R. Mark, Congressional Research Service, 90-133 F, “Lebanon: The
Remaining U.S. Hostages, a Chronology, 1984-1988” (Mar. 6, 1990)
56
Elaine Sciolino, “The Hostage Drama; 2 Western Hostages Freed in Lebanon,”
N.Y. Times (Nov. 19, 1991)
57 Frontline, “Target America,” program #2001 transcript, airdate Oct. 4, 2001
58
“Chronology of Events in Hijacking of Kuwait Airways Flight 422,” Associated
Press (Apr. 12, 1988)
59
UN Econ. & Soc. Council, Comm. On Human Rights, Report on the situation of
human rights in the Islamic Republic of Iran, U.N. Doc. E/CN.4/1995/55 (Jan.
16, 1995)
60
UN Econ. & Soc. Council, Comm. On Human Rights, Situation of human rights
in the Islamic Republic of Iran, U.N. Doc. E/CN.4/1996/177 (Apr. 24, 1996)
61
U.S. Dep’t of Justice Press Release, “Man Pleads Guilty in New York to
Conspiring with Iranian Military Officials to Assassinate Saudi Arabian
Ambassador to the United States” (Oct. 17, 2012)
5
ANNEX DESCRIPTION
62
Letter from the U.S. Dep’t of Justice, U.S. Attorney, Southern District New York,
United States v. Manssor Arbabsia, S1 11 Cr 897 (JFK), Plea Agreement of
Manssor Arbabsia (Oct. 17, 2012)
63
Letter addressed to the Secretary-General and the President of the Security
Council, Statement issued by the Council of the League of Arab States, U.N.
Doc. S/2011/640 (Oct. 17, 2011)
64
UK Foreign & Commonwealth Office Announcement, “Foreign Secretary
welcomes EU sanctions following assassination plot in the US” (Oct. 21, 2011)
65
UN GAOR, 66th sess., Agenda item 118, Letter from the Permanent
Representative of Saudi Arabia to United Nations addressed to the Secretary-
General, U.N. Doc. A/66/553 (Nov. 14, 2011)
66
UN GAOR, 66th sess./UNSC 66th year, Agenda item 109, Letter from the
Secretary General addressed to the President of the General Assembly and the
President of the Security Council, A/66/517, S/2011/649 (Oct. 19, 2011)
67 EU-U.S. Summit joint statement, Memo/11/842 (Nov. 28, 2011)
68
UN GAOR, Resolution adopted by the General Assembly, “Terrorist attacks on
internationally protected persons,” U.N. Doc. A/RES/66/12 (Nov. 18, 2011)
69 Supreme Court of Azerbaijan Judgment, Case No. 63 (Apr. 14, 1997)
70
“Azeri, Lebanese Citizens Sentenced in Baku for Plans to Blowup Gabala
Radar,” Interfax (Oct. 5, 2009)
71 “Azerbaijan arrests plot suspects, cites Iran link,” Reuters (Jan. 25, 2012)
72
“Azerbaijan arrests 22 alleged Iran-backed attack plotters,” Al Arabiya News
(Mar. 14, 2012)
73
UN GAOR, 71st sess., Agenda item 8, Note verbale from the Permanent
Representative of the United Arab Emirates to the United Nations addressed to
the Secretary General, U.N. Doc. A/71/581 (Oct. 31, 2016)
74
UNSC, Letter dated 10 December 2015 from the Permanent Representative of
Saudi Arabia to United Nations addressed to the President of the Security
Council, S/2015/954 (Dec. 21, 2015)
75
“Khomeyni Exhorts Muslims to ‘Execute’ Rushdie,” Tehran Radio Domestic
Service, in Foreign Broadcast Information Service Daily Rep., FBIS-NES-89-029
(Feb. 14, 1989)
76 Robert Tait, “Iran resurrects Salman Rushdie threat,” Telegraph (Sept. 16, 2012)
77
“Majlis Speaker Urges Attacks on U.S. Citizens,” Tehran IRNA, in Foreign
Broadcast Information Service Daily Rep., FBIS-NES-89-086 (May 5, 1989)
6
ANNEX DESCRIPTION
78
Sohrab Ahmari, “About That New ‘Moderate’ Iranian Cabinet…”, Wall St. J.
(Aug. 9, 2013)
79
“Iranian Leader Ali Khamenei in Response to President Obama’s Message to the
Iranian People: Change in Words Is Not Enough,” Middle East Media Research
Institute (Mar. 20, 2009)
80
UN Econ. & Soc. Council, Comm. On Human Rights, Report of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities, 46th
Sess., U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 (Oct. 28, 1994)
81 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001)
82 S.C. Res. 1559, U.N. Doc. S/RES/1559 (Sept. 2, 2004)
83 S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 11, 2006)
84
Iranian Ministry of Foreign Affairs, PLAYERS IN THE MIDDLE EAST PEACE
PROCESS (2000)
85
A. Savyon et al., “Iranian IRGC Missile Unit Commanders: We’ve Developed
2,000-km Range Missiles And Equipped Hizbullah With 300-km Range Missiles;
Fars News Agency: Israel’s Illusions About Its Natural Gas Fields Will Be
Buried In The Mediterranean,” Middle East Media Research Institute (Dec. 3,
2014)
86
Nicholas Blanford, “Hezbollah claims ‘pinpoint’ Iranian missiles added to its
arsenal,” Christian Science Monitor (Nov. 23, 2014)
87
“In first, Hezbollah confirms all financial support comes from Iran,” Al Arabiya
English (June 25, 2016)
88
“Iranians train Taliban to use roadside bombs: report,” The Nation (Mar. 21,
2010)
89
“Captured Taliban Commander: ‘I received Iranian Training,’”
RadioFreeEurope/RadioLiberty (Aug. 23, 2011)
90
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2003/40 (June 6, 2003)
91
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2003/63 (Aug. 26, 2003)
92
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2003/75 (Nov. 10, 2003)
7
ANNEX DESCRIPTION
93
International Atomic Energy Agency Board of Governors Resolution,
Implementation of the NPT Safeguards Agreement in the Islamic Republic of
Iran, IAEA Doc. GOV/2004/49 (June 18, 2004)
94
International Atomic Energy Agency Board of Governors Resolution,
Implementation of the NPT Safeguards Agreement in the Islamic Republic of
Iran, IAEA Doc. GOV/2005/77 (Sept. 24, 2005)
95
International Atomic Energy Agency Board of Governors Resolution,
Implementation of the NPT Safeguards Agreement in the Islamic Republic of
Iran, IAEA Doc. GOV/2006/14 (Feb. 4, 2006)
96
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2006/15 (Feb. 27, 2006)
97 S.C. Res. 1696, U.N. Doc. S/RES/1696 (July 31, 2006)
98
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2006/53 (Aug. 31, 2006)
99
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2006/64 (Nov. 14, 2006)
100 S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec. 27, 2006)
101 S.C. Res. 1747, U.N. Doc. S/RES/1747 (Mar. 24, 2007)
102 S.C. Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008)
103
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions in the Islamic Republic of Iran, IAEA Doc. GOV/2007/22 (May 23,
2007)
104
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc.
GOV/2007/48, (Aug. 30, 2007)
105
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions 1737 (2006) and 1747 (2007) in the Islamic Republic of Iran, IAEA
Doc. GOV/2007/58 (Nov. 15, 2007)
106
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions 1737 (2006) and 1747 (2007) in the Islamic Republic of Iran, IAEA
Doc. GOV/2008/4 (Feb. 22, 2008)
8
ANNEX DESCRIPTION
107 “Iran Vows Not to ‘Retreat One Iota’ in Nuclear Pursuit,” CNN (Feb. 22, 2007)
108
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835 (2008) in the
Islamic Republic of Iran, IAEA Doc. GOV/2009/74 (Nov. 16, 2009)
109
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835 (2008) in the
Islamic Republic of Iran, IAEA Doc. GOV/2010/10 (Feb. 18, 2010)
110 S.C. Res. 1929, U.N. Doc. S/RES/1929 (June 9, 2010)
111
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions in the Islamic Republic of Iran, IAEA Doc. GOV/2010/46 (Sept. 6,
2010)
112
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions in the Islamic Republic of Iran, IAEA Doc. GOV/2012/55 (Nov. 16,
2012)
113
International Atomic Energy Agency Director General, Implementation of the
NPT Safeguards Agreement and Relevant Provisions of Security Council
Resolutions in the Islamic Republic of Iran, IAEA Doc. GOV/2011/65 (Nov. 8,
2011)
114
Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010), U.N. Doc. S/2012/395 (June 4, 2012)
115
Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010) (May 7, 2011)
116
U.S. Dep’t of the Treasury Press Release, “Treasury Department Targets Iranian-
Owned Bank in Germany Facilitating Iran’s Proliferation Activities” (Sept. 7,
2010)
117
Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010), U.N. Doc. S/2013/331 (June 3, 2013)
118
Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010), U.N. Doc. S/2014/394 (June 5, 2014)
119
Final Report of the Panel of Experts Established Pursuant to Resolution 1929
(2010), U.N. Doc. S/2015/401 (June 1, 2015)
120 UNSC, 6442d Mtg., U.N. Doc. S/PV.6442 (Dec. 10, 2010)
9
ANNEX DESCRIPTION
121
Daniel Michaels & Margaret Coker, “Seized Arms Iran-bound, Report Says,”
Wall St. J. Asia (Dec. 21, 2009)
122 S.C. Res. 2231, U.N. Doc. S/RES/2231 (July 20, 2015)
123
UN Secretary-General, Report on the Implementation of Security Council
Resolution 2231 (2015), U.N. Doc. S/2016/589 (July 12, 2016)
124
U.S. Dep’t of the Treasury Press Release, “Treasury Sanctions Those Involved in
Ballistic Missile Procurement for Iran” (Jan. 17, 2016)
125
UN Secretary-General, Second Report on the Implementation of Security Council
Resolution 2231 (2015), U.N. Doc. S/2016/1136 (Dec. 30, 2016)
126
U.S. Dep’t of the Treasury Press Release, “Treasury Sanctions Supporters of
Iran’s Ballistic Missile Program and Terrorism-Designated Mahan Air” (Mar. 24,
2016)
127
Determination Pursuant to Section 6(i) of the Export Administration Act of 1979
– Iran, 49 Fed. Reg. 2836 (Jan. 23, 1984)
128 U.S. Dep’t of State, State Sponsors of Terrorism
129 Executive Order 12613, 52 Fed. Reg. 41940 (Oct. 30, 1987)
130 Executive Order 12957, 60 Fed. Reg. 14615 (Mar. 15, 1995)
131 Executive Order 12959, 60 Fed. Reg. 24757 (May 6, 1995)
132 Executive Order 13059, 62 Fed. Reg. 44531 (Aug. 19, 1997)
133 Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 (2017)
134 Executive Order 13224, 66 Fed. Reg. 49077 (Sept. 23, 2001)
135
UN Security Council, Counter-Terrorism Comm., Report on the Implementation
of Resolution 1373 (2001) by the United States of America, U.N. Doc.
S/2001/1220 (Dec. 19, 2001)
136
UN Security Council, Counter-Terrorism Comm., Response of the United States
to the Counter-Terrorism Committee on Security Council Resolution 1373, U.N.
Doc. S/2006/69 (Jan. 26, 2006)
137
Conference Report on the Terrorism Risk Protection Act, H.R. Rep. No. 107-779
(2002)
138
Council Common Position No. 2007/140/CFSP of 27 February 2007, 2007 O.J.
(L 61) 49
139
Council Common Position No. 2007/246/CFSP of 23 April 2007, 2007 O.J. (L
106) 67
10
ANNEX DESCRIPTION
140
Council Common Position No. 2008/652/CFSP of 7 August 2008, 2008 O.J. (L
213) 58
141 Council Decision No. 2010/413/CFSP of 26 July 2010, 2010 O.J. (L 195) 39
142 Council Decision No. 2012/35/CFSP of 23 January 2012, 2012 O.J. (L 19) 22
143 Council Decision No. 2012/152/CFSP of 15 March 2012, 2012 O.J. (L 77) 18
144 Council Decision No. 2012/635/CFSP of 15 October 2012, 2012 O.J. (L 282) 58
145 Financial Action Task Force Statement on Iran (Oct. 11, 2007)
146 Financial Action Task Force Statement on Iran (Feb. 25, 2009)
147
U.S. Dep’t of the Treasury, “Fact Sheet: Designation of Iranian Entities and
Individuals for Proliferation Activities and Support for Terrorism” (Oct. 25,
2007)
148
U.S. Dep’t of the Treasury, “Fact Sheet: Treasury Strengthens Preventive
Measures Against Iran” (Nov. 6, 2008)
149
U.S. Dep’t of the Treasury, “Fact Sheet: U.S. Treasury Department Targets Iran’s
Support for Terrorism; Treasury Announces New Sanctions Against Iran’s
Islamic Revolutionary Guard Corps-Qods Force Leadership” (Aug. 3, 2010)
150
U.S. Dep’t of the Treasury, “Fact Sheet: Treasury Designates Iranian Entities
Tied to the IRGC and IRISL” (Dec. 21, 2010)
151
U.S. Dep’t of the Treasury, “Fact Sheet: Treasury Sanctions Major Iranian
Commercial Entities” (June 23, 2011)
152
Finding that the Islamic Republic of Iran is a Jurisdiction of Primary Money
Laundering Concern, 76 Fed. Reg. 72756 (Nov. 18, 2011)
153
Financial Crimes Enforcement Network; Amendment to the Bank Secrecy Act
Regulations – Imposition of Special Measure Against the Islamic Republic of
Iran as a Jurisdiction of Primary Money Laundering Concern, 76 Fed. Reg. 72878
(Nov. 28, 2011)
154
Iran Threat Reduction and Syria Human Rights Act of 2012, § 217, Pub. L. 112-
158, 126 Stat. 1214, 22 U.S.C. 8701
155 Financial Action Task Force Statement on Iran (Feb. 24, 2017)
156
U.S. Dep’t of the Treasury Press Release, “Written Testimony of Adam J. Szubin,
Acting Under Secretary of Treasury for Terrorism and Financial Intelligence,
before the U.S. Senate Committee on Banking, Housing, and Urban Affairs”
(Aug. 5, 2015)
11
ANNEX DESCRIPTION
157
U.S. Dep’t of the Treasury Press Release, “Treasury Sanctions Supporters of
Iran’s Ballistic Missile Program and Iran’s Revolutionary Guard Corps” (Feb. 3,
2017)
158 “Iran bans import of consumer goods from USA,” BBC (Nov 5, 2015)
159
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Law Intensifying Countermeasures Against the
United States Government’s Terrorist Activities (1989), No. 13024, p. 534
160
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Law of Jurisdiction of the Justice Dep’t of the
Islamic Republic of Iran for Hearing Civil Claims against Foreign Governments
(1999), No. 15950, p. 473
161
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Law Amending the Law of Jurisdiction of the
Justice Dep’t of the Islamic Republic of Iran for Hearing Civil Claims against
Foreign Governments (2000), No. 16284, p. 1423
162
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Law of Jurisdiction of the Justice Dep’t of the
Islamic Republic of Iran for Hearing Civil Claims against Foreign Governments
(2012), No. 19566, p. 769
163
Information Site of the Government of the Islamic Republic of Iran, Law
Requiring the Government of Iran to Pursue Damages Resulting from the United
States’ Activities and Crimes (2016), pub. June 6, 2016
164
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Executive Regulations of the Law of Jurisdiction of
the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil Claims Against
Foreign Governments Enacted in the Year 1999, No. 16905, p. 395
165
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Amendment to the Executive Regulations of the
Law of Jurisdiction of the Justice Dep’t of the Islamic Republic of Iran for
Hearing Civil Claims Against Foreign Governments Enacted in the Year 1999,
No. 16213, p. 1099
166
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Executive Regulations of the Law of Jurisdiction of
the Justice Dep’t of the Islamic Republic of Iran for Hearing Civil Claims Against
Foreign Governments (2012), No. 20050, p. 1369
167
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Parliamentary Debates, Public Session 323 (Nov. 8,
1999) & Public Session No. 324 (Nov. 9, 1999)
168
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Parliamentary Debates, Public Session No. 41 (Oct.
31, 2000) & Public Session No. 42 (Nov. 1, 2000)
12
ANNEX DESCRIPTION
169
RUZNAMEHI RASMI JUMHURI ISLAMI IRAN [THE OFFICIAL GAZETTE OF THE
ISLAMIC REPUBLIC OF IRAN], Parliamentary Debates, Session No. 403 (Mar. 6,
2012) & Session No. 404 (Mar. 7, 2012)
170
Shafiei v. Government of the United States of America, Case No. 987/3/80,
Judgment (Tehran Public Court, Div. 3, Mar. 31, 2003)
171
“In reciprocal act, Iran sanctions 15 American companies,” Iran News Agency
(Mar. 26, 2017)
172
Mobil Corporation, Venezuela Holdings, B.V. v. Bolivarian Republic of
Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction (June 10, 2010)
173
Third Report on the Law of Treaties, Sir Humphrey Waldock, Special
Rapporteur, U.N. Doc. A/CN.4/167 (1964)
174
Miroļubovs & autres c. Lettonie, Req. No. 798/05, Arrêt (Eur. Ct. H.R., Dec. 15,
2009)
175
Emmanuel Gaillard, Abuse of Process in International Arbitration, 32 ICSID
REV. 17 (2017)
176
Philip Morris Asia Ltd. v. Commonwealth of Australia, UNCITRAL, PCA Case
No. 2012-12, Award on Jurisdiction and Admissibility (Dec. 17, 2015)
177
Churchill Mining PLC & Planet Mining Pty Ltd v. Republic of Indonesia, ICSID
Case Nos. ARB/12/14 & ARB/12/40, Award (Dec. 6, 2016)
178 S.C. Res. 748, U.N. Doc. S/RES/748 (Mar. 31, 1992)
179
G.A. Res. 49/60, Measures to Eliminate International Terrorism, U.N. Doc.
A/RES/49/60 (Feb. 17, 1995)
180 S.C. Res. 1189, U.N. Doc. S/RES/1189 (Aug. 13, 1998)
181
G.A. Res. 60/288, United Nations Global Counter-Terrorism Strategy, U.N. Doc.
A/RES/60/288 (Sept. 20, 2006)
182 S.C. Res. 2253, U.N. Doc. S/RES/2253 (Dec. 17, 2015)
183
International Convention for the Suppression of Terrorist Bombings (Dec. 15,
1997), 2149 U.N.T.S. 256
184
International Convention for the Suppression of the Financing of Terrorism (Dec.
9, 1999), 2178 U.N.T.S. 197
185
Treaty on the Non-Proliferation of Nuclear Weapons (July 1, 1968), 729 U.N.T.S.
168
186
Margaret White, Equity – A General Principle of Law Recognised by Civilised
Nations?, 4 QUEENSLAND U. TECH. L. & JUST. J. 103 (2004)
13
ANNEX DESCRIPTION
187
Aryeh v. Iran, Case Nos. 842, 843 & 844, Respondent’s Hearing Memorial and
Written Evidence, Vol. III, (Mar. 23, 1993) (Doc. 80), Exhibit C (Iran-U.S.
Claims Tribunal)
188
Mohtadi v. Iran, Case No. 271, Award No. 573-271-3 (Dec. 2, 1996), 32 IRANU.
S. CL. TRIB. REP. 124
189
Karubian v. Iran, Case No. 419, Award No. 569-419-2 (Mar. 6, 1996), 32 IRANU.
S. CL. TRIB. REP. 3
190
Second Report on State Responsibility, Mr. James Crawford, Special Rapporteur,
[1999] 2 Y.B. INT’L L. COMM’N 3, U.N. Doc. A/CN.4/SER.A/1999/Add.1
(Part 1)
191
Report of the International Law Commission on the Work of Its Fifty-Third
Session, [2001] 2 Y.B. INT’L L. COMM’N 1, U.N. Doc.
A/CN.4/SER.A/2001/Add.1 (Part 2)
192
Plama Consortium Ltd. v. Republic of Bulgaria, ICSID Case No. ARB/03/24,
Award (Aug. 27, 2008)
193
President William J. Clinton, Message to the Congress on Iran, 34 WEEKLY
COMP. PRES. DOCS. 446 (Mar. 16, 1998)
194
Tippetts et al. v. Iran et al., Case No. 7, Award No. 141-7-2 (June 22, 1984), 6
IRAN-U.S. CL. TRIB. REP. 219
195
EnCana Corp. v. Republic of Ecuador, UNCITRAL, LCIA Case No. UN3481,
Award (Feb. 3, 2006)
196 UNSC, 6335th Mtg., U.N. Doc. S/PV.6335 (June 9, 2010)
197 Executive Order 13382, 70 Fed. Reg. 38567 (June 28, 2005)
198
Comprehensive Iran Sanctions, Accountability and Divestment Act, Pub. L. No.
111-195 (July 1, 2010), 124 Stat. 1312
199 S.C. Res. 1989, U.N. Doc. S/RES/1989 (June 17, 2011)
200 S.C. Res. 1807, U.N. Doc. S/RES/1807 (Mar. 31, 2008)
201 S.C. Res. 2293, U.N. Doc. S/RES/2293 (June 23, 2016)
202 S.C. Res. 2140, U.N. Doc. S/RES/2140 (Feb. 26, 2014)
203 S.C. Res. 2342, U.N. Doc. S/RES/2342 (Feb. 23, 2017)
204
U.S. Dep’t of the Treasury Press Release, “Treasury Targets Iranian Attempts to
Evade Sanctions” (May 9, 2013)
14
ANNEX DESCRIPTION
205
U.S. Dep’t of the Treasury Press Release, “Treasury Exposes Iranian Attempts to
Evade Oil Sanctions” (Sept. 6, 2013)
206
The Foreign Sovereign Immunities Act: Hearing Before the Subcomm. on Courts
and Admin. Practice of the S. Comm. on the Judiciary, 103rd Cong. (1994)
(statement of Senator Arlen Specter)
207 S.C. Res. 1455, U.N. Doc. S/RES/1455 (Jan. 17, 2003)
208 S.C. Res. 1963, U.N. Doc. S/RES/1963 (Dec. 20, 2010)
209 S.C. Res. 2129, U.N. Doc. S/RES/2129 (Dec. 17, 2013)
210 S.C. Res. 2178, U.N. Doc. S/RES/2178 (Sept. 24, 2014)
211 S.C. Res. 2341, U.N. Doc. S/RES/2341 (Feb. 13, 2017)
212
Statement of Thomas A. Shannon, Jr., Under Secretary for Political Affairs, U.S.
Dep’t of State, Before the Senate Foreign Relations Comm., Iran’s Recent
Actions and Implementation of the JCPOA (Apr. 5, 2016)
213
United States Mission to the United Nations, Remarks of U.S. Ambassador Power
at the Security Council Stakeout Following Consultations on Iran (Mar. 14, 2016)
214
CHARLES H. SULLIVAN, U.S. DEP’T OF STATE, STANDARD DRAFT TREATY OF
FRIENDSHIP, COMMERCE AND NAVIGATION: ANALYSIS AND BACKGROUND (1981)
215
Telegram No. 1561 from U.S. Dep’t of State to U.S. Embassy Tehran (Feb. 15,
1955)
216
Message from the President of the United States Transmitting a Treaty of
Friendship, Commerce, and Navigation Between the United States of America
and the Republic of China, 80th Cong. (Mar. 20, 1947)
217
Hearing Before a Subcomm. of the S. Comm. on Foreign Relations on a Treaty of
Friendship, Commerce, and Navigation Between the United States of America
and the Republic of China, 80th Cong. (1948) (statement of Charles Bohlen,
Dep’t of State)
218 99 CONG. REC. 8577 (1953)
219
Dispatch No. 238 from U.S. Embassy The Hague to U.S. Dep’t of State (Sept. 15,
1954)
220
Dispatch No. 2254 from U.S. High Commission, Bonn to U.S. Dep’t of State
(Feb. 17, 1954)
221
Financial Crimes Enforcement Network: Amendment to the Bank Secrecy Act
Regulations – Imposition of Special Measure Against the Islamic Republic of
Iran as a Jurisdiction of Primary Money Laundering Concern, 76 Fed. Reg. 72878
(Nov. 28, 2011)
15
ANNEX DESCRIPTION
222 Financial Action Task Force (FATF), Public Statement –28 October 2011
223 Financial Action Task Force, High-risk and non-cooperative jurisdictions
224
Hearing Before a Subcomm. of the S. Comm. on Foreign Relations on Treaties of
Friendship, Commerce, and Navigation Between the United States and Colombia,
Israel, Ethiopia, Italy, Denmark, and Greece, 82nd Cong. (1952) (statement of
Harold F. Linder, Dep’t of State)
225
Letter from Jack B. Tate, Acting Legal Adviser, to Philip B. Perlman, Acting
Attorney General (May 19, 1952), in 26 DEP’T. STATE BULL. 984 (1952)
226 Cable from U.S. Dep’t of State to U.S. Embassy Tehran (Dec. 4, 1954)
227 Cable from U.S. Dep’t of State to U.S. Embassy Tehran (Dec. 18, 1954)
228
Brief for Appellants Soc. Sec. Org. of Gov’t of Iran, Ministry of Health &
Welfare of Gov’t of Iran, & Gov’t of Iran, Elec. Data Sys. Corp. Iran v. Soc. Sec.
Org. of Gov’t of Iran, 651 F.2d 1007 (5th Cir. 1981) (No. 79-2641)
229
Vernon G. Setser, The Immunity Waiver for State-Controlled Business
Enterprises in United States Commercial Treaties, 55 AM. SOC. INT’L L. PROC. 89
(1961)
230
Brief for Defendants-Appellants, Elec. Data Sys. Corp. Iran v. Soc. Sec. Org. of
Gov’t of Iran, 651 F.2d 1007 (5th Cir. 1981) (No. 80-1641)
231
Brief for the United States as Amicus Curiae, Elec. Data Sys. Corp. Iran v. Soc.
Sec. Org.of Gov’t of Iran, 610 F.2d 94 (2d Cir. 1979) (No. 79-7696)
232 Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 16 (D.D.C. 1999)
233
Brief and Special Appendix for Defendant-Appellant Bank Markazi, Cent. Bank
of Iran, Peterson v. Islamic Republic of Iran, 758 F.3d 185 (2d Cir. 2014) (No.
13-2952)
234
Reply Brief for Defendant-Appellant Bank Markazi, Cent. Bank of Iran, Peterson
v. Islamic Republic of Iran, 758 F.3d 185 (2d Cir. 2014) (No. 13-2952)
235
Brief for Defendant-Appellee Bank Markazi, AKA Cent. Bank of Iran, Peterson
v. Islamic Republic of Iran, No. 15-0690 (2d Cir. Aug. 31, 2015)
236 Cable from U.S. Dep’t of State to U.S. Embassy Tehran (Dec. 8, 1954)
237
Diplomatic Note from U.S. Department of State to Ato Ketema Yifru, Minister of
Foreign Affairs of the Imperial Ethiopian Government (Apr. 14, 1966)
238
Brief for the United States as Amicus Curiae, Bank Markazi v. Peterson, 136 S.
Ct. 1310 (2016) (No. 14-770)
16
ANNEX DESCRIPTION
239 Bank Sepah International PLC, About Us
240 Melli Bank plc, Welcome to Melli Bank plc
241
International Monetary Fund, IMF Members’ Quotas and Voting Power, and IMF
Board of Governors
242
Central Bank of the Islamic Republic of Iran, Executive Board and Vice
Governors
243 Central Bank of the Islamic Republic of Iran, Organization
244
Stephen M. Schwebel, Clean Hands in the Court, 31 STUD. TRANSNAT’L LEGAL
POL’Y 74 (1999)
245
Sixth Report on the Law of Treaties, Sir Humphrey Waldock, Special Rapporteur,
[1966] 2 Y.B. INT’L L. COMM’N 51, U.N. Doc. A/CN.4/SER.A/1966/Add.1
IRAN
Amity, Economic Relations, and Consular Rights
Treaty signed at Tehran August 15, 1955;
Ratification advised by the Senate of the United States
of America July 11, 1956;
Ratified by the President of the United States of America
September 14, 1956;
Ratified by Iran April 30, 1957;
Ratifications exchanged at Tehran May 16, 1957;
Proclaimed by the President of the United States of America
June 27, 1957;
Entered into force June 16, 1957.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
WHEREAS a treaty of amity, economic relations, and consular
rights between the United States of America and Iran was signed
at Tehran on August 15, 1955, the original of which treaty, being
in the English and Persian languages, is word for word as follows:
(899) TIAS 3853
Appendix A
U. S. Treaties and Other International Agreements [8 UST
TREATY OF AMITY, ECONOMIC RELATIONS,
AND CONSULAR RIGHTS
BETWEEN
THE UNITED STATES OF AMERICA
AND IRAN
TIAS 3853
900
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 901
TREATY OF AMITY, ECONOMIC RELATIONS, AND CONSULAR
RIGHTS BETWEEN THE UNITED STATES OF
AMERICA AND IRAN
The United States of America and Iran, desirous of emphasizing
the friendly relations which have long prevailed between their
peoples, of reaffirming the high principles in the regulation of
human affairs to which they are committed, of encouraging
mutually beneficial trade and investments and closer economic
intercourse generally between their peoples, and of regulating
consular relations, have resolved to conclude, on the basis of
reciprocal equality of treatment, a Treaty of Amity, Economic
Relations, and Consular Rights, and have appointed as their
Plenipotentiaries:
The President of the United States of America:
Mr. Selden Chapin, Ambassador Extraordinary and Plenipotentiary
of the United States of America at Tehran;
and
His Imperial Majesty, the Shah of Iran:
His Excellency Mr. Mostafa Samiy, Under Secretary of the
Ministry of Foreign Affairs;
Who, having communicated to each other their full powers
found to be in due form, have agreed upon the following articles:
Article I
There shall be firm and enduring peace and sincere friendship
between the United States of America and Iran.
Article II
1. Nationals of either High Contracting Party shall be permitted,
upon terms no less favorable than those accorded to
nationals of any third country, to enter and remain in the territories
of the other High Contracting Party for the purpose of
carrying on trade between their own country and the territories
of such other High Contracting Party and engaging in related
commercial activities, and for the purpose of developing and
directing the operations of an enterprise in which they have
invested, or in which they are actively in the process of investing,
a substantial amount of capital.
TIAS 3853
88465 0-57-58
Appendix A
U. S. Treaties and Other International Agreements [s UST
2. Nationals of either High Contracting Party within the
territories of the other High Contracting Party shall, either
individually or through associations, and so long as their activities
are not contrary to public order, safety or morals: (a) be permitted
to travel therein freely and reside at places of their choice; (b)
enjoy freedom of conscience and the right to hold religious services;
(c) be permitted to engage in philanthropic, educational and
scientific activities; and (d) have the right to gather and transmit
information for dissemination to the public abroad, and otherwise
to communicate with other persons inside and outside such
territories. They shall also be permitted to engage in the practice
of professions for which they have qualified under the applicable
legal provisions governing admission to professions.
3. The provisions of paragraphs 1 and 2 of the present Article
shall be subject to the right of either High Contracting Party to
apply measures which are necessary to maintain public order,
and to protect public health, morals and safety, including the
right to expel, to exclude or to limit the movement of aliens on
the said grounds.
4. Nationals of either High Contracting Party shall receive
the most constant protection and security within the territories
of the other High Contracting Party. When any such national
is in custody, he shall in every respect receive reasonable and
humane treatment; and, on his demand, the diplomatic or consular
representative of his country shall without unnecessary
delay be notified and accorded full opportunity to safeguard his
interests. He shall be promptly informed of the accusations
against him, allowed all facilities reasonably necessary to his
defense and given a prompt and impartial disposition of his case.
Article III
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.
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
TIAS 3853
. 902
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
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.
3. The private settlement of disputes of a civil nature, involving
nationals and companies of either High Contracting Party, shall
not be discouraged within the territories of the other High Contracting
Party; and, in cases of such settlement by arbitration,
neither the alienage of the arbitrators nor the foreign situs of the
arbitration proceedings shall of themselves be a bar to the enforceability
of awards duly resulting therefrom.
Article IV
I. 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.
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.
3. The dwellings, offices, warehouses, factories and other premises
of nationals and companies of either High Contracting Party
located within the territories of the other High Contracting Party
shall not be subject to entry or molestation without just cause.
Official searches and examinations of such premises and their contents,
shall be made only according to law and with careful regard
for the convenience of the occupants and the conduct of business.
4. Enterprises which nationals and companies of either High
Contracting Party are permitted to establish or acquire, within the
TIAS 3853
903
Appendix A
U. S. Treaties and Other International Agreements [8 UST
territories of the other High Contracting Party, shall be permitted
freely to conduct their activities therein, upon terms no less
favorable than other enterprises of whatever nationality engaged
in similar activities. Such nationals and companies shall enjoy
the right to continued control and management of such enterprises;
to engage attorneys, agents, accountants and other technical
experts, executive personnel, interpreters and other specialized
employees of their choice; and to do all other things
necessary or incidental to the effective conduct of their affairs.
Article V
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 nationals and companies of any third country.
2. Upon compliance with the applicable laws and regulations
respecting registration and other formalities, nationals and companies
of either High Contracting Party shall be accorded within
the territories of the other High Contracting Party effective protection
in the exclusive use of inventions, trade marks and trade
names.
Article VI
1. Nationals and companies of either High Contracting Party
shall not be subject to the payment of taxes, fees or charges within
the territories of the other High Contracting Party, or to requirements
with respect to the levy and collection thereof, more burdensome
than those borne by nationals, residents and companies of
any third country. In the case of nationals of either High Contracting
Party residing within the territories of the other High
Contracting Party, and of nationals and companies of either High
Contracting Party engaged in trade or other gainful pursuit or in
non-profit activities therein, such payments and requirements shall
not be more burdensome than those borne by nationals and companies
of such other High Contracting Party.
2. Each High Contracting Party, however, reserves the right
to: (a) extend specific tax advantages only on the basis of reciprocity,
or pursuant to agreements for the avoidance of double taxation
or the mutual protection of revenue; and (b) apply special
TIAS 3853
904
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
requirements as to the exemptions of a personal nature allowed to
non-residents in connection with income and inheritance taxes.
3. Companies of either High Contracting Party shall not be
subject, within the territories of the other High Contracting Party,
to taxes upon any income, transactions or capital not attributable
to the operations and investment thereof within such territories.
Article VII
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 people, or (b) in the case of a
member of the International Monetary Fund, restrictions specifically
approved by the Fund.
2. If either High Contracting Party applies exchange restrictions,
it shall promptly make reasonable provision for the withdrawal,
in foreign exchange in the currency of the other High
Contracting Party, of: (a) the compensation referred to in Article
IV, paragraph 2, of the present Treaty, (b) earnings, whether in
the form of salaries, interest, dividends, commissions, royalties,
payments for technical services, or otherwise, land (c) amounts
for amortization of loans, depreciation of direct investments and
capital transfers, giving consideration to special needs for other
transactions. If more than one rate of exchange is in force, the
rate applicable to such withdrawals shall be a rate which is specifically
approved by the International Monetary Fund for such
transactions or, in the absence of a rate so approved, an effective
rate which, inclusive of any taxes or surcharges on exchange
transfers, is just and reasonable.
3. Either High Contracting Party applying exchange restrictions
shall in general administer them in a manner not to influence
disadvantageously the competitive position of the commerce,
transport or investment of capital of the other High Contracting
Party in comparison with the commerce, transport or investment
of capital of any third country; and shall afford such other High
Contracting Party adequate opportunity for consultation at any
time regarding the application of the present Article.
Article VIII
1. Each High Contracting Party shall accord to products of
the other High Contracting Party, from whatever place and by
whatever type of carrier arriving, and to products destined for
TIAS 3853
905
Appendix A
U. S. Treaties and Other International Agreements [8 UST
exportation to the territories of such other High Contracting Party,
by whatever route and by whatever type of carrier, treatment
no less favorable than that accorded like products of or destined
for exportation to any third country, in all matters relating to:
(a) duties, other charges, regulations and formalities, on or in
connection with importation and exportation; and (b) internal
taxation, sale, distribution, storage and use. The same rule shall
apply with respect, to the international transfer of payments for
imports and exports.
2. Neither High Contracting Party shall impose restrictions or
prohibitions on the importation of any product of the other High
Contracting Party or on the exportation of any product to the
territories of the other High Contracting Party, unless the importation
of the like product of, or the exportation of the like product
to, all third countries is similarly restricted or prohibited.
3. If either High Contracting Party imposes quantitative restrictions
on the importation or exportation of any product in
which the other High Contracting Party has an important interest:
(a) It shall as a general rule give prior public notice of the
total amount of the product, by quantity or value, that may be
imported or exported during a specified period, and of any
change in such amount or period; and
(b) If it makes allotments to any third country, it shall afford
such other High Contracting Party a share proportionate to
the amount of the product, by quantity or value, supplied by
or to it during a previous representative period, due consideration
being given to any special factors affecting the trade in
such product.
4. Either High Contracting Party may impose prohibitions or
restrictions on sanitary or other customary grounds of a noncommercial
nature, or in the interest of preventing deceptive or
unfair practices, provided such prohibitions or restrictions do not
arbitrarily discriminate against the commerce of the other High
Contracting Party.
5. Either High Contracting Party may adopt measures necessary
to assure the utilization of accumulated inconvertible currencies
or to deal with a stringency of foreign exchange. However,
such measures shall deviate no more than necessary from a
policy designed to promote the maximum development of nondiscriminatory
multilateral trade and to expedite the attainment
of a balance-of-payments position which will obviate the necessity
of such measures.
TIAS 3853
906
Appendix A
8 USTI Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 907
6. Each High Contracting Party reserves the right to accord
special advantages: (a) to products of its national fisheries, (b) to
adjacent countries in order to facilitate frontier traffic, or (c) by
virtue of a customs union or free trade area of which either High
Contracting Party, after consultation with the other High Contracting
Party, may become a member. Each High Contracting
Party, moreover, reserves rights and obligations it may have under
the General Agreement on Tariffs and Trade, and special advan- TIAS 1700.
tages it may accord pursuant thereto.
Article IX
1. In the administration of its customs regulations and procedures,
each High Contracting Party shall: (a) promptly publish
all requirements of general application affecting importation and
exportation; (b) apply such requirements in a uniform, impartial
and reasonable manner; (c) refrain, as a general practice, from
enforcing new or more burdensome requirements until after public
notice thereof; (d) provide an appeals procedure by which prompt
and impartial review of administrative action in customs matters
can be obtained; and (e) not impose greater than nominal penalties
for infractions resulting from clerical errors or from mistakes made
in good faith.
2. Nationals and companies of either High Contracting Party
shall be accorded treatment no less favorable than that accorded
nationals and companies of the other High Contracting Party, or
of any third country, with respect to all matters relating to importation
and exportation.
3. Neither High Contracting Party shall impose any measure
of a discriminatory nature that hinders or prevents the importer
or exporter of products of either country from obtaining marine
insurance on such products in companies of either High Contracting
Party.
Article X
1. Between the territories of the two High Contracting Parties
there shall be freedom of commerce and navigation.
2. Vessels under the flag of either High Contracting Party, and
carrying the papers required by its law in proof of nationality,
shall be deemed to be vessels of that High Contracting Party
both on the high seas and within the ports, places and waters of
the other High Contracting Party.
3. Vessels of either High Contracting Party shall have liberty,
on equal terms with vessels of the other High Contracting Party
and on equal terms with vessels of any third country, to come with
their cargoes to all ports, places and waters of such other High
TIAS 3853
Appendix A
908
TIAS 3853
U. S. Treaties and Other International Agreements [8 UST
Contracting Party open to foreign commerce and navigation.
Such vessels and cargoes shall in all respects be accorded national
treatment and most-favored-nation treatment within the ports,
places and waters of such other High Contracting Party; but each
High Contracting Party may reserve exclusive rights and privileges
to its own vessels with respect to the coasting trade, inland navigation
and national fisheries.
4. Vessels of either High Contracting Party shall be accorded
national treatment and most-favored-nation treatment by the
other High Contracting Party with respect to the right to carry
all products that may be carried by vessel to or from the territories
of such other High Contracting Party; and such products
shall be accorded treatment no less favorable than that accorded
like products carried in vessels of such other High Contracting
Party, with respect to: (a) duties and charges of all kinds, (b) the
administration of the customs, and (c) bounties, drawbacks and
other privileges of this nature.
5. Vessels of either High Contracting Party that are in distress
shall be permitted to take refuge in the nearest port or haven of
the other High Contracting Party, and shall receive friendly treat.
ment and assistance.
6. The term "vessels", as used herein, means all types of
vessels, whether privately owned or operated, or publicly owned
or operated; but this term does not, except with reference to
paragraphs 2 and 5 of the present Article, include fishing vessels
or vessels of war.
Article XI
1. Each High Contracting Party undertakes (a) that enterprises
owned or controlled by its Government, and that monopolies or
agencies granted exclusive or special privileges within its territories,
shall make their purchases and sales involving either
imports or exports affecting the commerce of the other High
Contracting Party solely in accordance with commercial considerations,
including price, quality, availability, marketability, transportation
and other conditions of purchase or sale; and (b) that
the nationals, companies and commerce of such other High
Contracting Party shall be afforded adequate opportunity, in
accordance with customary business practice, to compete for
participation in such purchases and sales.
2. Each High Contracting Party shall accord to the nationals,
companies and commerce of the other High Contracting Party
fair and equitable treatment, as compared with that accorded to
the nationals, companies and commerce of any third country,
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
with respect to: (a) the governmental purchase of supplies, (b) the
awarding of government contracts, and (c) the sale of any service
sold by the Government or by any monopoly or agency granted
exclusive or special privileges.
3. The High Contracting Parties recognize that conditions of
competitive equality should be maintained in situations in which
publicly owned or controlled trading or manufacturing enterprises
of either High Contracting Party engage in competition,
within the territories thereof, with privately owned and controlled
enterprises of nationals and companies of the other High Contracting
Party. Accordingly, such private enterprises shall, in
such situations, be entitled to the benefit of any special advantages
of an economic nature accorded such public enterprises,
whether in the nature of subsidies, tax exemptions or otherwise.
The foregoing rule shall not apply, however, to special advantages
given in connection with: (a) manufacturing goods for government
use, or supplying goods and services to the Government for
government use; or (b) supplying at prices substantially below
competitive prices, the needs of particular population groups for
essential goods and services not otherwise practically obtainable
by such groups.
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.
Article XII
Each High Contracting Party shall. have the right to send to
the other High Contracting Party consular representatives, who,
having presented their credentials and having been recognized in
a consular capacity, shall be provided, free of charge, with exequaturs
or other authorization.
Article XIII
1. Consular representatives of each High Contracting Party
shall be permitted to reside in the territory of the other High
Contracting Party at the places where consular officers of any
third country are permitted to reside and at other places by
consent of the other High Contracting Party. Consular officers
and employees shall enjoy the privileges and immunities accorded
TIAS 3853
909
Appendix A
910 U. S. Treaties and Other International Agreements [8 UST
to officers and employees of their rank or status by general international
usage and shall be permitted to exercise all functions
which are in accordance with such usage; in any event they shall
be treated, subject to reciprocity, in a manner no less favorable
than similar officers and employees of any third country.
2. The consular offices shall not be entered by the police or
other local authorities without the consent of the consular officer,
except that in the case of fire or other disaster, or if the local
authorities have probable cause to believe that a crime of violence
has been or is about to be committed in the consular office, consent
to entry shall be presumed. In no case shall they examine or
seize the papers there deposited.
Article XIV
1. All furniture, equipment and supplies consigned to or withdrawn
from customs custody for a consular or diplomatic office
of either High Contracting Party for official use shall be exempt
within the territories of the other High Contracting Party from all
customs duties and internal revenue or other taxes imposed upon
or by reason of importation.
2. The baggage, effects and other articles imported exclusively
for the personal use of consular officers and diplomatic and consular
employees and members of their families residing with them,
who are nationals of the sending state and are not engaged in any
private occupation for gain in the territories of the receiving state,
shall be exempt from all customs duties and internal revenue or
other taxes imposed upon or by reason of importation. Such
exemptions shall be granted with respect to the property accompanying
the person entitled thereto on first arrival and on subsequent
arrivals, and to that consigned to such officers and employees
during the period in which they continue in status.
3. It is understood, however, that: (a) paragraph 2 of the present
Article shall apply as to consular officers and diplomatic and
consular employees only when their names have been communicated
to the appropriate authorities of the receiving state and
they have been duly recognized in their official capacity; (b) in
the case of consignments, either High Contracting Party may, as a
condition to the granting of exemption, require that a notification
of any such consignment be given, in a prescribed manner; and
(c) nothing herein authorizes importations specifically prohibited
by law.
Article XV
1. The Government of either High Contracting Party may, in
the territory of the other, acquire, own, lease for any period of
TIAS 3853
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 911
time, or otherwise hold and occupy, such lands, buildings, and
appurtenances as may be necessary and appropriate for governmental,
other than military, purposes. If under the local law the
permission of the local authorities must be obtained as a prerequisite
to any such acquiring or holding, such permission shall
be given on request.
2. Lands and buildings situated in the territories of either High
Contracting Party, of which the other High Contracting Party is
the legal or equitable owner and which are used exclusively for
governmental purposes by that owner, shall be exempt from taxation
of every kind, national, state, provincial and municipal,
other than assessments levied for services or local public improvements
by which the premises are benefited.
Article XVI
1. No tax or other similar charge of any kind, whether of a
national, state, provincial, or municipal nature, shall be levied or
collected within the territories of the receiving state in respect
of the official emoluments, salaries, wages or allowances received
(a) by a consular officer of the sending state as compensation for
his consular services, or (b) by a consular employee thereof as
compensation for his services at a consulate. Likewise, consular
officers and employees, who are permanent employees of the
sending state and are not engaged in private occupation for gain
within the territories of the receiving state, shall be exempt from
all taxes or other similar charges, the legal incidence of which
would otherwise fall upon such officers or employees.
2. The preceding paragraph shall not apply in respect of taxes
and other similar charges upon: (a) the ownership or occupation
of immovable property situated within the territories of the receiving
state; (b) income derived from sources within such territories
(except the compensation mentioned in the preceding paragraph);
or (c) the passing of property at death.
3. The provisions of the present Article shall have like application
to diplomatic officers and employees, who shall in addition
be accorded all exemptions allowed them under general international
usage.
Article XVII
The exemptions provided for in Articles XIV and XVI shall
not apply to nationals of the sending state who are also nationals
of the receiving state, or to any other person who is a national of
the receiving state, nor to persons having immigrant status who
have been lawfully admitted for permanent residence in the
receiving state.
TIAS 3853
Appendix A
U. S. Treaties and Other International Agreements [8 UST
Article XVIII
Consular officers and employees are not subject to local jurisdiction
for acts done in their official character and within the
scope of their authority. No consular officer or employee shall
be required to present his official files before the courts or to make
declaration with respect to their contents.
Article XIX
A consular officer shall have the right within his district to: (a)
interview, communicate with, assist and advise any national of
the sending state; (b) inquire into any incidents which have occurred
affecting the interests of any such national; and (c) assist
any such national in proceedings before or in relations with the
authorities of the receiving state and, where necessary, arrange
for legal assistance to which he is entitled. A national of the
sending state shall have the right at all times to communicate
with a consular officer of his country and, unless subject to lawful
detention, to visit him at the consular office.
Article XX
1. The present Treaty shall not preclude the application of
measures:
(a) regulating the importation or exportation of gold or silver;
(b) relating to fissionable materials, the radio-active by-products
thereof, or the sources thereof;
(c) regulating the production of or traffic in arms, ammunition
and implements of war, or traffic in other materials carried
on directly or indirectly for the purpose of supplying a
military establishment; and
(d) necessary to fulfill the obligations of a High Contracting
Party for the maintenance or restoration of international
peace and security, or necessary to protect its essential
security interests.
2. The present Treaty does not accord any rights to engage in
political activities.
3. The stipulations of the present Treaty shall not extend to
advantages accorded by the United States of America or its Territories
and possessions, irrespective of any future change in their
political status, to one another, to the Republic of Cuba, to the
Republic of the Philippines, to the Trust Territory of the Pacific
Islands or to the Panama Canal Zone.
4. The provisions of Article II, Paragraph 1, shall be construed
as extending to nationals of either High Contracting Party seeking
TIAS 3853
912
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
to enter the territories of the other High Contracting Party solely
for the purpose of developing and directing the operations of an
enterprise in the territories of such other High Contracting Party
in which their employer has invested or is actively in the process
of investing a substantial amount of capital: provided that such
employer is a national or company of the same nationality as the
applicant and that the applicant is employed by such national or
company in a responsible capacity.
Article XXI
1. Each High Contracting Party shall accord sympathetic
consideration to, and shall afford adequate opportunity for consultation
regarding, such representations as the other High Contracting
Party may make with respect to any matter affecting the
operation of the present Treaty.
2. 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.
Article XXII
1. The present Treaty shall replace the following agreements
between the United States of America and Iran:
(a) the provisional agreement relating to commercial and other
relations, concluded at Tehran May 14, 1928, and I1A9.s 47 Stat. 2M4.
(b) the provisional agreement relating to personal status and
family law, concluded at Tehran July 11, 1928. EAS 20. 47 Star. M62.
2. Nothing in the present Treaty shall be construed to supersede
any provision of the trade agreement and the supplementary
exchange of notes between the United States of America and Iran,
concluded at Washington April 8, 1943. EAS 410. 58 Stat. 1322.
Article XXIII
1. The present Treaty shall be ratified, and the ratifications
thereof shall be exchanged at Tehran as soon as possible.
2. The present Treaty shall enter into force one month after
the day of exchange of ratifications. It shall remain in force for
ten years and shall continue in force thereafter until terminated as
provided herein.
3. Either High Contracting Party may, by giving one year's
written notice to the other High Contracting Party, terminate
the present Treaty at the end of the initial ten-year period or at
any time thereafter.
TIAS 3853
913
Appendix A
U. S. Treaties and Other International Agreements [8 UST
IN WITNESS WHEREOF the respective Plenipotentiaries have
signed the present Treaty and have affixed hereunto their seals.
DONE in duplicate, in the English and Persian languages, both
equally authentic, at Tehran this fifteenth day of August one
thousand nine hundred fifty-five, corresponding with the twentythird
day of Mordad one thousand three hundred and thirty-four.
SELDEN CHAPIN MOSTAFA SAMIY
[SEAL] [SEAL]
TIAS 3853
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 915
• .j.. AI j
( •L .J,:, ,.,.
d UL: W *.uI
[SEAL] [SEAL]
.TIAS 3853
Appendix A
U. S. Treaties and Other International Agreements [8 UST
c. 4 Lz oj -L v. -- lpijIILj_-. f ,a
U cJA j Ix .. J2' 4;.:-
J--%J,.j Y
* '.- Ij j j
TIAS 3853
916
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 917
'I I .c. ,(,, I
,K, TIAS 3853
*t* c L.UL JUSC,"qj- .,±
TIAS 3853
88465 0-57- 59
Appendix A
918 U. S. Treaties and Other International Agreements [8 UST
J •4.L-tJ..
J-W L -,z )Ly ' -- j
I ~ L)YZr ~ l Ly
,...,. u .u. J .A. . ,, ,t. v .W .a-. _ j
x,__ •j
: a..-: - - -;JrAa '..?j,lJ-,' '' . "
TIAS 3853
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955 919
T tA.L ~I L .a:Ljy6
-, . Jjl J '- ~ ~ A L JA. ~. JJ4L
du LL L .' J9 z eu t~lL. i~~ J
j4-1.616 v- J
i J I W,~,.ju SJ~
TIAS 3853
Appendix A
920
TIAS 3853
U. S. Treaties and Other International Agreements [8 UST
*~~~~~J,&s ~.~.j~5 ~ja
jjj j. ~~~~ ~ 1a.b-LA 1 .Ll. .
•j .A Ip.; ,- e. ,J,.1" .
JL,L . J: -4, , ' * - X S o .t.. - 4 , ..,-., , J ..,.
) 3 j _ L J.. - .L.-
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
i - J& ~a LSdJU- u
.2~~~~L uc2 iA~~aL~~&,~ L
..- .z, . > . - L -, jt,-L . L- .. .
6y~ jg=.... JJ -LA J. tt
TIAS 3853
Appendix A
U. S. Treaties and Other International Agreements [8 UST
J-
.LAU .t '5 'i L- - -j6 iJJLL *j 6E L
J6~~~~6L U . 1.,C)Ij
.i ~ ~ J 4 ~~~~ L 5LL.A- ,,
* .~L 'U,,..~JL .L)jjl.t i .
U~ L~ ~.~. j4~ ~.2A ~ A j''-,-tL '
TIAS 3853
922
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
• L *->,L.t*- , t5 t. ., IL '.' sA
J. --J - j . *J ') t .u.._
* _.i . .t. j -- A 4A.,.- .
JA JAIi; .~ 45 jL~ -
TIAS 3853
923
Appendix A
U. S. Treaties and Other International Agreements [8 UST
J.#AjLLI JAL,- rJj j
* y J
i -1 1 . .: J e.L A
J ~ -L ~ j~jtu-j.Iu , ljLt.4Le 0
I JA ry -a
TIAS 3853
924
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
.A i_,.L-. -.-.., . -6.C .t ,- ". , .)5 1 .i;T '.
L:,.L c
J-; c
~±t. Jv4'L r i.I L
L Lo jv ui ~jjlj~ j- .
A4 A jt- I sj W. JJ jL~j
1. lI . c- ii4 a-,.* JLjfi
TIAS 3853
925
Appendix A
926 U. S. Treaties and Other International Agreements [8 UST
L .I~jj L J J.~... . • ., . L.
J "A'' .4Jt4.,. I.z_,
.i •~. j~,.~ .,.~ ~ .~t. ,,~, :.~,.~ l. . L4 L;,- j'. . L,. . 6U--. Jj IL, J~ ~L.1 ~7 Ti J, * ,j~a L _ _jsa~ j,: LAlJ: X jtL j 6 sl.,L
Ix - - - jv C.&..,Y-~i..t
I ~ ~I ~ ~ , c~ lo'. Lb ' '
TIAS 3853
Appendix A
8 UST] Iran-Amity, Econ. Relations, -Etc.-Auq. 15, 1955
jT
r-~~~'-&'~~ -ulce-
-6 L.~j y,
UO JJ I J CI, . LijI sl
TIAS 3853
Appendix A
928 U. S. Treaties and Other International Agreements [8 UST
_,.t ij 4 j L 4 ( associations ) A -- L ,
-LY~."~L -4~ ~U: 4AjC- J 4 4j 4. JLWL 1, .r
j ~ ~J i.A->&J•-P 4 i J- -L*-tjL *V- t; - = Lj
Cr. - o.,t
TIAS 3853
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
u .- .l_ "w L J5 tj.( associations L .4 ._ j
•j).. j.. t. z.,j. Lji. -. ,JJ jl.I
J--t4W, *;-l "F.j jI- j Ij,- LIJA
t---L.- . . . Jj~ L,.. ~ ~. . , .A ~
croatpoast erhp )jL J l L..L. .
TIAS 3853
929
Appendix A
U. S. Treaties and Other International Agreements [8 UST
-, , JLj AL'S t A jJc~y r2 ,, L
* -6, !
|
uV J Jy U j Ly.JAW ~ ~ LII
- j k.- .S... i jL3. o L ,tJ -
-
. % J' r °'. ' y. I. J>J-
.~ ~ !j J.A. .. I i,J
.u.!. - 1, :,z4 j "L- ,---. . ,;
J:
U
;,,1
TIAS 3853
930
Appendix A
8 UST] Iran-Amity, Econ. Relations, Etc.-Aug. 15, 1955
TIAS 3853
L;jL-: ,sjL-,j1 cjp.
0 Ix 'j t eT ij J
Appendix A
U. S. Treaties and Other International Agreements [8 UST
WHEREAS the Senate of the United States of America by their
resolution of July 11, 1956, two-thirds of the Senators present
concurring therein, did advise and consent to the ratification of
the said treaty;
WHEREAS the said treaty was ratified by the President of the
United States of America on September 14, 1956, in pursuance of
the aforesaid advice and consent of the Senate, and has been duly
ratified on the part of Iran;
WHEREAS the respective instruments of ratification of the said
treaty were duly exchanged at Tehran on May 16, 1957;
AND WHEREAS it is provided in Article XXIII of the said treaty
that the treaty shall enter into force one month after the day of
exchange of ratifications;
NOW, THEREFORE, be it known that I, Dwight D. Eisenhower,
President of the United States of America, do hereby proclaim
and make public the said treaty to the end that the same and
every article and clause thereof may be observed and fulfilied in
good faith on and after June 16, 1957, one month after the day of
exchange of ratifications, by the United States of America and by
the citizens of the United States of America and all other persons
subject to the jurisdiction thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
caused the Seal of the United States of America to be affixed.
DONE at the city of Washington this twenty-seventh day of
June in the year of our Lord one thousand nine hundred
[SEAL] -fifty-seven and of the Independence of the United
States of America the one hundred eighty-first.
DWIGHT D EISENHOWER
By the President:
JOHN FOSTER DULLES
Secretary of State
TIAS 3853
932
Appendix A