Declaration of Judge ad hoc Momtaz

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
DECLARATION OF JUDGE AD HOC MOMTAZ
[Translation]
Security Council resolution 2231 (2015) — Binding effect of the obligations imposed by
resolution 2231 (2015) on United Nations Member States — Iran has complied with its
commitments under the JCPOA — Unlawfulness of the extraterritorial measures taken by the
United States in international law — Sanctions with extraterritorial effect do not fall within the
provisions of Article XX, paragraph 1 (d) of the Treaty of Amity, Economic Relations, and
Consular Rights of 15 August 1955 — Mission of the Court as the principal judicial organ of the
United Nations in the maintenance of international peace and security.
1. I voted in favour of the three provisional measures indicated by the Court in the operative
part of the Order. However, I fear that the first two provisional measures are not sufficient to
protect the rights of Iran as a matter of urgency or to avoid irreparable prejudice being caused to
those rights.
2. In point (1) (iii) of paragraph 102, the operative part of the Order, the Court has limited
the scope of the first provisional measure to “spare parts, equipment and maintenance services
necessary for civil aircraft safety”. In my opinion, this measure does not enable Iran to ensure the
safety of its civil aviation, and thus to avoid irreparable prejudice being caused to its rights under
the Treaty of Amity. As the Court recalled in paragraph 81 of its Order, Iran’s fleet of aircraft is
one of the oldest in the world. Iran asserted as much during the oral proceedings and this was not
contested. The first provisional measure should also have applied to the purchase of aircraft and to
the orders which have already been placed by Iran and which are subject to the sanctions reimposed
by the United States. I regret that this was not included in the operative part of the Order.
3. As regards the second provisional measure, and in view of the secondary, extraterritorial
sanctions of the United States (Order, paras. 74 and 83), it would have been desirable for the Court
to request that the United States refrain from taking any measures aimed at discouraging the
companies and nationals of third States from maintaining trade relations with Iran, in particular to
enable Iran to purchase new civil aircraft.
4. While I agree with the reasoning set out in the Court’s Order, I nevertheless believe it
necessary to examine three questions on which the Court did not rule — at least not at this stage of
the proceedings. In my view, these questions are particularly important since the purpose of
provisional measures is to prevent the aggravation of a dispute and to protect the rights of the
disputing parties pending a decision by the Court on the merits. Moreover, these questions are
central to the Court’s role as the principal judicial organ of the United Nations, as well as its role in
protecting and promoting the purposes and principles of the Charter, including in maintaining
international peace and security.
1. The obligations of United Nations Member States under
Security Council resolution 2231 (2015)
5. In paragraph 18 of its Order, the Court takes note of Security Council
resolution 2231 (2015), but does not elucidate its legal consequences. This resolution, which was
adopted unanimously, is part of the factual context in which the dispute submitted to the Court
under the Treaty of Amity arose. Although this dispute does not concern the United States’
- 2 -
compliance with resolution 2231 (2015) or its withdrawal from the Joint Comprehensive Plan of
Action (hereinafter the “JCPOA” or the “Plan”), it could have been avoided had the United States
adhered to its commitments under resolution 2231 (2015).
6. Resolution 2231 (2015) does not expressly refer to Chapter VII of the Charter of the
United Nations. Nonetheless, the reference in the resolution’s preamble to Article 25 of the
Charter, and the ten references in its operative part to Article 41, part of Chapter VII of the Charter,
prove that it imposes obligations on Member States. The resolution endorsed the JCPOA in its
entirety. Regardless of the legal status of the Plan as such, in particular whether it is a binding
instrument for the States which concluded it, what is important here is to ascertain whether and to
what extent resolution 2231 (2015) imposes binding obligations on all Member States of the
Organization, including the United States.
7. First, the Court has had occasion to state the following on the binding effect of resolutions
adopted by the Security Council:
“112. It would be an untenable interpretation to maintain that, once such a
declaration had been made by the Security Council under Article 24 of the Charter, on
behalf of all member States, those Members would be free to act in disregard of such
illegality or even to recognize violations of law resulting from it . . .
113. . . . Article 25 is not confined to decisions in regard to enforcement action
but applies to “the decisions of the Security Council” adopted in accordance with the
Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after
Article 24 in that part of the Charter which deals with the functions and powers of the
Security Council. If Article 25 had reference solely to decisions of the Security
Council concerning enforcement action under Articles 41 and 42 of the Charter, that is
to say, if it were only such decisions which had binding effect, then Article 25 would
be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.
114. It has also been contended that the relevant Security Council resolutions
are couched in exhortatory rather than mandatory language and that, therefore, they do
not purport to impose any legal duty on any State nor to affect legally any right of any
State. The language of a resolution of the Security Council should be carefully
analysed before a conclusion can be made as to its binding effect. In view of the
nature of the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of the resolution
to be interpreted, the discussions leading to it, the Charter provisions invoked and, in
general, all circumstances that might assist in determining the legal consequences of
the resolution of the Security Council” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
pp. 52-53, paras. 112-114).
8. As a general rule, therefore, the binding effect of Security Council decisions is not limited
to those taken under the provisions of Chapter VII (see also, for example, Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 192, para. 134). Thus, ascertaining whether a Security Council resolution
is binding requires an analysis of the terms used therein, the discussions which led to its adoption
and the provisions of the Charter it cites, with a view to determining whether the Security Council
intended to establish an obligation for Member States (see, for example, East Timor (Portugal v.
Australia), Judgment, I.C.J. Reports 1995, p. 104, para. 32). While the rules on treaty interpretation
- 3 -
embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide
guidance, “the interpretation of Security Council resolutions also require[s] that other factors be
taken into account” (Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 442, para. 94).
Thus:
“The interpretation of Security Council resolutions may require the Court to
analyse statements by representatives of members of the Security Council made at the
time of their adoption, other resolutions of the Security Council on the same issue, as
well as the subsequent practice of relevant United Nations organs and of States
affected by those given resolutions.” (Ibid.)
9. One must therefore examine the language, the object and purpose, and the context of
resolution 2231 (2015) to determine its legal effect. As has been recalled, the resolution’s preamble
provides that “Member States are obligated under Article 25 of the Charter of the United Nations to
accept and carry out the Security Council’s decisions”. In that same preamble, the Security Council
made repeated references to the importance of the JCPOA, which “marks a fundamental shift in
[the] consideration” of the Iranian nuclear issue, the culmination of diplomatic efforts in the area of
non-proliferation which falls squarely within the competence of the Security Council. It also
invited all States to co-operate with Iran and underscored the importance of the role of the
International Atomic Energy Agency (IAEA) in implementing and monitoring the commitments
contained in the Plan and approved in the resolution, with the Security Council, as emphasized by
its permanent members following the adoption of the resolution, guaranteeing its implementation.
10. If the true intention of Security Council was in fact simply to take note of the JCPOA, it
could have done so, as it usually does, without appending the entire text of that lengthy instrument
to the resolution. Yet that was not the intention with resolution 2231 (2015), in which the Security
Council “[e]ndorses the JCPOA and urges its full implementation on the timetable established
[there]in”. It is absolutely clear from the opening of the resolution’s operative part, immediately
preceded by a reference in its preamble to Article 25 of the Charter, that the Security Council
intended to establish binding obligations for all Member States, including the United States.
11. An examination of the operative part of the resolution confirms its binding nature. The
vast majority of its provisions are preceded by an express reference to Article 41, part of
Chapter VII of the Charter. This includes paragraphs 7 to 9, 11 to 13, 16 and 21 to 23. In
paragraph 7, for example, the Security Council, “acting under Article 41 of the Charter”, decided to
lift the sanctions contained in its previous resolutions on the Iranian nuclear issue, i.e.
resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010)
and 2224 (2015). Other provisions of resolution 2231 (2015), which are not preceded by an express
reference to Article 41 of the Charter, are nonetheless binding on the United Nations Member
States in so far as they were adopted in accordance with the purposes and principles of the Charter
and the provisions of Article 25. As the Court has recalled,
“when the Security Council adopts a decision under Article 25 in accordance with the
Charter, it is for member States to comply with that decision, including those [nonpermanent]
members of the Security Council which voted against it and those
Members of the United Nations who are not members of the Council” (Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 54, para. 116).
- 4 -
Last but not least, most of the provisions in resolution 2231 (2015) are addressed to the
United Nations Member States. It follows that, in endorsing the JCPOA, resolution 2231 (2015)
established binding obligations for all Member States, including the United States.
12. Finally, and although the present proceedings are at a preliminary stage, it is worth
examining the validity of the arguments put forward by the United States to justify “the
re-imposition of all sanctions that had previously been lifted or waived in connection with the plan”
and resolution 2231 (2015). In a Memorandum dated 8 May 2018, the President of the
United States observed that “Iran has publicly declared it would deny the International Atomic
Energy Agency (IAEA) access to military sites”, and that, in 2016, Iran “twice violated the
JCPOA’s heavy-water stockpile limits” (Order, para. 20). In reality, however, since 16 January
2016, the IAEA has verified and monitored Iran’s compliance with its nuclear-related
commitments under the JCPOA, a mandate conferred on it by resolution 2231 (2015). In its
quarterly reports, the IAEA has confirmed Iran’s adherence to its commitments.
13. One need only refer to the IAEA’s 2018 reports to refute the justifications put forward by
the United States. First, on the question of access to the sites in Iran, the IAEA has stated that “[t]he
Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has
conducted complementary accesses under the Additional Protocol to all the sites and locations in
Iran which it needed to visit” (Verification and monitoring in the Islamic Republic of Iran in light
of United Nations Security Council resolution 2231 (2015), doc. GOV/2018/7 of 23 Feb. 2018,
para. 23). In its latest report published on 30 August 2018, the IAEA once again confirmed that it
had accessed all the sites and locations in Iran which it needed to visit, and further observed that
“[t]imely and proactive cooperation by Iran in providing such access facilitates implementation of
the Additional Protocol and enhances confidence” (Verification and monitoring in the Islamic
Republic of Iran in light of United Nations Security Council resolution 2231 (2015),
doc. GOV/2018/33 of 30 Aug. 2018, para. 24). Moreover, in its report of 25 May 2018, just a few
weeks after the statement by the President of the United States announcing the decision to reimpose
and aggravate the economic sanctions which had been lifted under the JCPOA, the IAEA
confirmed that Iran was continuing to co-operate with the Agency and to comply with its
commitments, including on access to the sites (Verification and monitoring in the Islamic Republic
of Iran in light of United Nations Security Council resolution 2231 (2015), doc. GOV/2018/24 of
25 May 2018, para. 23). The 30 August 2018 report was also very clear on the subject of
heavy-water stockpile limits: during the three-month reporting period, Iran had no more than
130 metric tonnes of heavy water, and was thus within the limits set out in paragraph 14 of Annex I
to the JCPOA. Regarding Iran’s compliance with that commitment in 2016, an examination of the
IAEA’s reports from that time is again enlightening:
“2. . . . on 8 November 2016, the Agency verified that Iran’s stock of heavy water had
reached 130.1 metric tonnes and, in a letter received by the Agency on
9 November 2016, Iran informed the Agency of ‘Iran’s plan to make preparation
for transfer of 5 metric tons of its nuclear grade heavy water’ out of Iran.
3. On 12 November 2016, Iran informed the Agency of its decision to make
preparations to transfer an additional six metric tonnes of nuclear grade heavy
water out of Iran. On 12 and 13 November 2016, the Agency verified and sealed
11 metric tonnes of nuclear grade heavy water that Iran was preparing for transfer
out of Iran.
4. On 21 November 2016, Iran informed the Agency that the 11 metric tonnes of
nuclear grade heavy water had been shipped out of Iran on 19 November 2016.
- 5 -
5. On 6 December 2016, the Agency verified the quantity of 11 metric tonnes of the
nuclear grade heavy water at its destination outside Iran. This transfer of heavy
water out of Iran brings Iran’s stock of heavy water to below 130 tonnes.”
(Verification and monitoring in the Islamic Republic of Iran in light of
United Nations Security Council resolution 2231 (2015), doc. GOV/INF/2016/13
of 6 Dec. 2016)
14. Finally, it should be noted that since the United States announced its intention to
withdraw from the JCPOA and to reimpose its unilateral sanctions, the European Union (EU) has
not only confirmed Iran’s compliance with its commitments, but also called for
resolution 2231 (2015) to be respected, having taken the necessary measures in EU law to protect
the rights of EU companies doing legitimate business with Iran:
“The lifting of nuclear-related sanctions is an essential part of the deal — it
aims at having a positive impact not only on trade and economic relations with Iran,
but most importantly on the lives of the Iranian people. We are determined to protect
European economic operators engaged in legitimate business with Iran, in accordance
with EU law and with UN Security Council resolution 2231. This is why the European
Union’s updated Blocking Statute enters into force on 7 August to protect EU
companies doing legitimate business with Iran from the impact of US extra-territorial
sanctions.” (“Joint statement on the re-imposition of US sanctions due to its
withdrawal from the Joint Comprehensive Plan of Action (JCPOA)”, Brussels, 6 Aug.
2018, available online on the EU’s official website1.)
2. The unlawfulness of extraterritorial measures adopted by the United States
15. In my opinion, the secondary sanctions announced by the United States on 8 May, for
implementation on 6 August and 4 November 2018, also have an extraterritorial scope in that they
target nationals and companies of third States continuing to maintain economic relations with Iran.
Those sanctions are illegal under international law.
16. First, one must examine the lawfulness of those measures in the light of the principles of
the Charter of the United Nations, before considering their compliance with World Trade
Organization (WTO) law, which may be regarded as a lex specialis. Next, I am not satisfied that
the extraterritorial sanctions in question can fall within the scope of Article XX, paragraph 1 (d), of
the Treaty of Amity, even prima facie. Nor can they be justified in the light of other similar
exceptions in international law, such as that contained in Article XXI of the General Agreement on
Tariffs and Trade (GATT).
17. Turning to the first issue, in the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), the Court analysed the
1956 Treaty of Friendship, Commerce and Navigation concluded between Nicaragua and the
United States, which was modelled on the 1955 Treaty of Amity at issue in this case, observing
that:
“in view of the generally accepted formulations, the principle [of non-intervention]
forbids all States or groups of States to intervene directly or indirectly in internal or
external affairs of other States. A prohibited intervention must accordingly be one
1 https://eeas.europa.eu/headquarters/headquarters-homepage/49141/joint-s…-
its-withdrawal-joint-comprehensive-plan-action_en.
- 6 -
bearing on matters in which each State is permitted, by the principle of State
sovereignty, to decide freely. One of these is the choice of a political, economic, social
and cultural system, and the formulation of foreign policy. Intervention is wrongful
when it uses methods of coercion in regard to such choices, which must remain free
ones.” (Merits, Judgment, I.C.J. Reports 1986, p. 108, para. 205).
18. The principle of non-intervention is one of the corollaries of the sovereign equality of
States (ibid., para. 202). Indeed, it is its first natural consequence. The adoption of such unilateral
measures, which openly seek to constrain, dissuade and discourage potentially all third States, their
nationals and companies from maintaining trade relations with the primary target of those
sanctions, constitutes a violation of the principle of non-intervention enshrined in General
Assembly resolution 2625 (XXV). The Court has already had occasion to note the customary status
of that principle:
“The Court has also emphasized the importance to be attached, in other
respects, . . . to General Assembly resolution 2625 (XXV) . . . Texts like these, in
relation to which the Court has pointed to the customary content of certain provisions
such as the principles of the non-use of force and non-intervention, envisage the
relations among States having different political, economic and social systems on the
basis of coexistence among their various ideologies; the United States not only voiced
no objection to their adoption, but took an active part in bringing it about.” (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 133, para. 264; emphasis added.)
19. The unilateral measures taken by the United States against Iran seek strongly to
discourage any State and its nationals, and any foreign financial institutions, from maintaining
relations with Iran. Indeed, they are similar to the measures imposed by acts of US domestic
legislation adopted in 1996, such as the Helms-Burton Act (against Cuba) and the
D’Amato-Kennedy Act (against Iran and Libya). As in this case, the scope and effects of the
provisions contained in those acts were extraterritorial and led to the adoption of anti-boycott laws
by Canada and the EU, whose businesses and nationals were affected (in Canada: the Foreign
Extraterritorial Measures Act (FEMA), Revised Statutes of Canada (RSC), Chap. F-29 (1985),
amended on 9 Oct. 1996, RSC, Chap. 28, reprinted in International Legal Materials (ILM), Vol. 36,
Issue 1, p. 111 (1997); in the EU: Council Regulation (EC) No. 2271/96 of 22 Nov. 1996
protecting against the effects of the extra-territorial application of legislation adopted by a third
country, and actions based thereon or resulting therefrom, Official Journal (L. 309), p. 1, reprinted
in ILM, Vol. 36, Issue 1, p. 125 (1997)).
20. The aforementioned Helms-Burton Act was also the subject of a long series of General
Assembly resolutions2, the terms of which are very clear. The General Assembly reaffirmed,
“among other principles, the sovereign equality of States, non-intervention and non-interference in
their internal affairs and freedom of international trade and navigation, which are also enshrined in
many international legal instruments”, and expressed
“[c]oncer[n] about the continued promulgation and application by Member States of
laws and regulations, such as that promulgated on 12 March 1996 known as ‘the
2 See the United Nations General Assembly resolutions concerning the “Necessity of ending the economic,
commercial and financial embargo imposed by the United States of America against Cuba”, adopted since 1992:
resolutions 47/19 (1992), 48/16 (1993), 49/9 (1994), 50/10 (1995) and 51/17 (1996); 52/10 (1997), 53/4 (1998),
54/21 (1999), 55/20 (2000), 56/9 (2001), 57/11 (2002), 58/7 (2003), 59/11 (2004), 60/12 (2005), 61/11 (2006),
62/3 (2007), 63/7 (2008), 64/6 (2009), 65/6 (2010), 66/6 (2011), 67/4 (2012), 68/8 (2013), 69/5 (2014), 70/5 (2015),
71/5 (2016) and 72/4 (2017).
- 7 -
Helms-Burton Act’, the extraterritorial effects of which affect the sovereignty of other
States, the legitimate interests of entities or persons under their jurisdiction and the
freedom of trade and navigation” (General Assembly resolution 72/4 of 1 Nov. 2017,
preamble; emphasis added).
It
“[r]eiterate[d] its call upon all States to refrain from promulgating and applying laws
and measures of the kind referred to in the preamble to the present resolution, in
conformity with their obligations under the Charter of the United Nations and
international law, which, inter alia, reaffirm the freedom of trade and navigation”
(ibid., para. 2).
The terms of paragraph 2 are reproduced verbatim in the numerous other resolutions adopted by the
General Assembly since 1993, and could easily apply to the sanctions against the nationals and
companies of third States set out in sections 2, 3, 5 and 6 of US Executive Order 13846, dated
6 August 2018, reimposing “certain sanctions with respect to Iran [and its nationals]”. Juxtaposing
the régime of extraterritorial sanctions in question with the above-mentioned jurisprudence of the
Court, it is my view that those sanctions serve as a constraint that aims to influence directly the
choice of sovereign States in formulating their external relations, which constitutes a violation of
the fundamental principle of non-intervention, as enshrined in the Charter of the United Nations.
21. General Assembly resolutions, officially recommendations, may have a normative
character through their “content and the conditions of [their] adoption” (Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 254-255, para. 70).
Moreover, “a series of resolutions may show the gradual evolution of the opinio juris required for
the establishment of a new rule” (ibid.). As noted by the Court, “it would not be correct to assume
that, because the General Assembly is in principle vested with recommendatory powers, it is
debarred from adopting, in specific cases within the framework of its competence, resolutions
which make determinations or have operative design” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 50, para. 105).
22. In addition to the Charter of the United Nations, there may also be doubts as to the
compliance of the United States’ extraterritorial sanctions with WTO law. First, it is to be noted
that Iran is not a member of the WTO; it has had observer status since 26 May 2005. Therefore,
while it cannot be said that there has been a breach of WTO law by the United States against Iran,
the possibility remains that the measures in question could violate WTO law vis-à-vis any third
party and member of that organization maintaining trade relations with Iran. Furthermore, the EU
has already voiced its opposition to the sanctions and stated that it would protect European
institutions and economic operators by adopting blocking statutes against the United States. It
should be added that in today’s global economy, it is no longer possible to regard international and
economic relations as a group of bilateral dealings. The international economic system is a network
and the deterioration of relations between A and B will inevitably have repercussions for all
participants. In the WTO system, there is no difference between participant and trading partner.
Thus, when State A imposes sanctions against State B with an extraterritorial effect which serves to
dissuade State C from trading with State B, and when State C refuses to comply and falls victim to
the régime of sanctions, but State D decides to adhere to the régime imposed by A, there is a
difference in the way States C and D are treated. This could constitute a violation of the
most-favoured-nation principle set out in Article I of GATT. The measures in question also have
the effect of curbing the EU’s freedom to export to Iran and to import products of Iranian origin.
As a result, they may also lead to a violation of Article XI of GATT, which provides for the general
elimination of quantitative restrictions.
- 8 -
23. Several measures adopted by US Executive Order 13846 may be described as “secondary
boycott measures” intended to target economic actors having trade relations with Iranian nationals
or companies, Iran itself being the subject of a primary boycott. Yet the fact that a State imposes
restrictions on its nationals or legal entities as part of its foreign policy does not mean, a contrario,
that it can act without any territorial or personal ties, or prohibit relations between third States.
24. Lastly, it is important to consider whether and to what extent the extraterritorial sanctions
of the United States fall within the scope of Article XX, paragraph 1 (d), of the Treaty of Amity.
According to that provision, the Treaty
“shall not preclude the application of measures . . . necessary to fulfil 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”.
In its Judgment on the preliminary objection in the Oil Platforms case, the Court noted that “the
Treaty of 1955 contains no provision expressly excluding certain matters from the jurisdiction of
the Court” (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I.C.J. Reports 1996 (II), p. 811, para. 20). The Court then confirmed that
Article XX, paragraph 1 (d), of the Treaty of Amity does not bar the Court’s jurisdiction, but rather
“is confined to affording the Parties a possible defence on the merits” (ibid., p. 811, para. 20). The
question whether the sanctions fall within the scope of that provision must be considered from two
perspectives. First, one must examine whether the measures directly targeting Iran constitute an
exception authorized by Article XX, paragraph 1 (d), of the Treaty of Amity, before determining
whether the “secondary boycott” measures directed against third States may be covered by the
same provision.
25. Article XX opens with the phrase: “The present Treaty shall not preclude”. It is,
therefore, a “non-prejudice clause”, listing the actions which, by their nature, are exceptions which
will not upset the operation of the Treaty should one of the parties have recourse to them. As an
exception, this provision must be the subject of a restrictive interpretation. Article XX,
paragraph 1 (d), naturally splits into two parts. Under the first part, measures “necessary to
fulfill . . . obligations . . . for the maintenance or restoration of international peace and security” are
permitted. Such measures may be adopted only with the authorization of the Security Council,
which has primary responsibility for the maintenance of international peace and security under
Article 24 of the Charter, or, in the case of self-defence, with its subsequent consent. The second
part authorizes the adoption of measures “necessary to protect [the] essential security interests [of
the High Contracting Party]”. This second part may appear to be a more general exception, but in
my opinion it must be interpreted in an even more restrictive manner. As the Court recalled in the
case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), “whether a measure is necessary to protect the essential security
interests of a party is not . . . purely a question for the subjective judgment of the party” (Merits,
Judgment, I.C.J. Reports 1986, p. 141, para. 282.). States are entitled to provide for their security
and the protection of their essential interests within the limits defined by international law.
26. The question to what extent the United States may make use of the exception provided
for by Article XX, paragraph 1 (d), of the Treaty of Amity is closely linked to the possibility of
recourse to the security exception set out in Article XXI of GATT. If we juxtapose the two
provisions, it is apparent that, under Article XXI of GATT, the General Agreement is not to be
construed “to prevent any contracting party from taking any action which it considers necessary for
the protection of its essential security interests” (emphasis added), while Article XX,
paragraph 1 (d), of the Treaty of Amity merely speaks of “measures . . . necessary”. In the case
- 9 -
concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), the Court said the following of a similar clause:
“That the Court has jurisdiction to determine whether measures taken by one of
the Parties fall within such an exception, is also clear a contrario from the fact that the
text of Article XXI of the Treaty does not employ the wording which was already to
be found in Article XXI of the General Agreement on Tariffs and Trade. This
provision of GATT, contemplating exceptions to the normal implementation of the
General Agreement, stipulates that the Agreement is not to be construed to prevent
any contracting party from taking any action which it ‘considers necessary for the
protection of its essential security interests’, in such fields as nuclear fission, arms, etc.
The 1956 Treaty, on the contrary, speaks simply of ‘necessary’ measures, not of those
considered by a party to be such” (Merits, Judgment, I.C.J. Reports 1986, p. 116,
para. 222).
27. In the absence of an interpretation of this provision by the WTO’s Dispute Settlement or
Appellate Body, particular importance must be attributed to the way in which Article XX,
paragraph 1 (d), of the Treaty of Amity is worded compared with Article XXI of GATT. As has
just been shown, the Court’s jurisprudence confirms that interpretation of the text, which places the
emphasis on the term “necessity”, in its objective sense, and not the “measures . . . considered by
[the] part[ies] to be [necessary]”.
28. For all these reasons, I am of the opinion that the unilateral measures taken by the
United States against the nationals and companies of third States do not comply prima facie with
the principle of non-intervention or WTO law, and that the United States cannot make use of the
exceptions provided by Article XX, paragraph 1 (d), of the Treaty of Amity or by Article XXI of
GATT.
3. The public order mission of the Court
29. Finally, the dispute in this case not only risks affecting the entire economy, banks and
finance, civil aviation security and the humanitarian needs of the Iranian population, it also poses a
threat to peace and security in the region. In point (3) of the operative part (Order, para. 102), the
Court indicated a provisional measure calling on both Parties to “refrain from any action which
might aggravate or extend the dispute before the Court or make it more difficult to resolve”. This,
however, is not sufficient.
30. The heightened tensions between the Parties pose a serious threat to international peace
and security. In my opinion, it would have been desirable for the Court to go further. In the hope of
achieving a conciliatory climate, the Court, as the principal judicial organ of the United Nations,
had a duty immediately to request that the Parties respect their obligations under the Charter of the
United Nations and general international law. This power “flows from its responsibility for the
safeguarding of international law and from major considerations of public order” (Legality of Use
of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999 (I), dissenting opinion of Judge Vereshchetin, p. 209). In so doing, the Court is
acting “as an organization functioning within the framework of the United Nations and pursuing
the common aim of peace” (ibid., dissenting opinion of Judge Weeramantry, p. 198).
31. Under the terms of Article 24 of the Charter, the Security Council has primary
responsibility for the maintenance of international peace and security, but it does not have
- 10 -
exclusive responsibility. As the Court has recalled on a number of occasions, “[t]he Council has
functions of a political nature assigned to it, whereas the Court exercises purely judicial functions.
Both organs can therefore perform their separate but complementary functions with respect to the
same events” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 435,
para. 95).
32. In practice, the Court and the Security Council have on several occasions been seised of
the same dispute posing a threat to international peace and security. This was true of the case
concerning the Aegean Sea Continental Shelf. Since the Security Council, by its
resolution 395 (1976), had already asked the Parties to that dispute “to do everything in their power
to reduce the present tensions in the area so that the negotiating process may be facilitated” and
called on them “to resume direct negotiations over their differences”, the Court did not consider it
necessary to indicate provisional measures in its Order, and simply reminded the Parties of the need
to comply with that resolution (Aegean Sea Continental Shelf (Greece v. Turkey), Interim
Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 12, para. 38).
33. In his separate opinion appended to that Order, Judge Lachs declared that the Court
should “readily seize the opportunity of reminding the member States concerned in a dispute
referred to it of certain obligations deriving from general international law or flowing from the
Charter” (ibid., separate opinion of Judge Lachs, p. 20). He further observed that “[t]he
pronouncements of the Council did not dispense the Court, an independent judicial organ, from
expressing its own view on the serious situation in the disputed area”. According to Judge Lachs,
the Court, in so doing,
“does not . . . arrogate any powers excluded by its Statute when, otherwise than by
adjudication, it assists, facilitates or contributes to the peaceful settlement of disputes
between States, if offered the occasion at any stage of the proceedings” (ibid.).
This is all the more relevant when, as is the case here, there is no Security Council resolution. In
other words, when the Security Council has not had occasion to urge the parties to respect their
obligations under the Charter and general international law, it falls to the Court to do so, and to
fulfil its role in the maintenance of international peace and security.
34. This lacuna in the Court’s Order is all the more striking since Article I of the Treaty of
Amity provides that “[t]here shall be firm and enduring peace” between the two contracting parties
(Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996 (II), p. 813, para. 27), some of whose rights were judged plausible
prima facie and at imminent risk of irreparable prejudice (Order, paras. 70 and 91). The Court has
also had occasion in its jurisprudence to remind the parties, at the provisional measures stage, of
their obligations under the Charter, and it is difficult to see why that approach was not taken here.
For example, in the case concerning Request for Interpretation of the Judgment of 15 June 1962 in
the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand),
the Court reminded the Parties that:
“the Charter of the United Nations imposes an obligation on all Member States of the
United Nations to refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations; whereas the Court
further recalls that United Nations Member States are also obliged to settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered; and whereas both Parties are obliged, by the
- 11 -
Charter and general international law, to respect these fundamental principles of
international law” (Provisional Measures, Order of 18 July 2011,
I.C.J. Reports 2011 (II), p. 554, para. 66).
35. In the words of Robert Kolb, “[t]he principal aim of establishing a court of justice is to
contribute to the peaceful resolution of disputes, i.e. to ensure that tensions are diminished and that
the dispute is directed towards a rational means of settlement” (R. Kolb, La Cour international de
Justice, Paris, Pedone, 2013, p. 636 [translation by the Registry]). In my view, provisional
measures are intended to ease tensions between the parties and to preserve the utility of the
proceedings. In indicating provisional measures, the Court cannot lose sight of the fact that it is
exercising its exceptional power both to protect the rights of the parties and the integrity of its
judicial function, and to safeguard the fundamental nature of its remit to act in the public interest
(ibid., p. 637).
36. In conclusion, it would have been desirable for the Court to have directly called on the
Parties to respect their obligations under the Charter, including the obligations deriving from
resolution 2231 (2015) and general international law, not only to avoid an aggravation of the
situation but to re-establish and preserve international peace and security in the region.
(Signed) Djamchid MOMTAZ.
___________