Is the U.S. in Breach of the ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty of Amity?

On July 16, 2018, the Islamic Republic of Iran (Iran) filed an Application instituting proceedings against the United States (the U.S.) before the International Court of Justice (the Court) regarding Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights.[1] The application concerned alleged breaches of the Treaty of Amity arising from the re-imposition of certain sanctions by the U.S. following its withdrawal from the Joint Comprehensive Plan of Action (JCPOA)—or so-called “nuclear deal”—and was accompanied by a request for provisional measures. In that request, Iran asked that the Court indicate provisional measures requiring the U.S. to, inter alia, “cease any and all statements or actions that would dissuade U.S. and non-U.S. persons and entities from engaging or continuing to engage economically with Iran and Iranian nationals or companies.”[2]

In its Order of October 3, 2018, the Court declined to issue the precise measures requested by Iran, but recalled that it has the power “to indicate measures that are, in whole or in part, other than those requested.”[3] In exercise of that power, it ordered the U.S. to, inter alia, “remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of . . . medicines and medical devices . . . ”[4]  It also ordered the Parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” Finally, the Court “reaffirm[ed] that its ‘orders on provisional measures under Article 41 [of the Statute of the Court] have binding effect’ . . .  and thus create international legal obligations for any party to whom the provisional measures are addressed.”[5]  

This Insight will analyze the U.S.’s compliance with these aspects of the Court’s Order on provisional measures.[6]  Part I will briefly examine the U.S. sanctions regime and the health-related exemptions relevant to the Court’s Order.  Part II will then describe some of the direct and indirect effects of U.S. sanctions on the exportation of medicine and medical devices to Iran in the period post-dating the Court’s Order.  Finally, Part III will examine the terms of the Order laid out above to determine whether the U.S. has likely breached them.

Part I: How U.S. Sanctions against Iran Work 

U.S. sanctions against Iran have, since 1995, generally prohibited any U.S. person from providing goods or services to Iran.  U.S. persons are prohibited from directly or indirectly supplying any goods, technology, or services to Iran, or facilitating those transactions, unless the transaction is otherwise authorized under a general or specific license.[7] These prohibitions apply to all “US persons,” which includes U.S. citizens and lawful permanent residents and foreign nationals temporarily located in the U.S. Other U.S. sanctions authorities are used to impose sanctions against Iranian individuals and entities for alleged involvement in nuclear weapons development, human rights violations, corruption, missile proliferation, and support for terrorism. Non-U.S. financial institutions also face the risk of so-called “secondary sanctions” for facilitating significant transactions with individually designated Iranian financial institutions. 

Under the 2015 JCPOA, in exchange for Iran agreeing that its nuclear program would be “exclusively peaceful,” the U.S. agreed to lift its secondary sanctions related to Iran’s nuclear program—i.e., those that targeted non-U.S. persons for trade with Iran. The JCPOA also included several general licenses, including General License H, which authorized foreign subsidiaries of U.S. companies to engage in certain transactions with Iran. The JCPOA did not affect other sanctions against Iran, including those prohibiting U.S. persons from transacting with Iran. 

On May 8, 2018, President Trump announced that the U.S. would withdraw from the JCPOA and re-impose the sanctions that had been suspended as part of the JCPOA.[8] As a result, the U.S. ultimately re-imposed nuclear sanctions on Iran, including by sanctioning approximately 400 individuals and entities that had been de-listed as part of the JCPOA, while also imposing new sanctions against more than 300 individuals and entities.[9] Legal authority was also restored for imposing secondary sanctions on a broad range of transactions with Iran by non-U.S. persons.[10]

The U.S. maintains various general licenses that authorize otherwise-prohibited transactions without requiring further specific authorization, including a general license to export certain categories of “medicine” and “medical devices” to “the Government of Iran, to any individual or entity in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing.”[11] That general license further authorizes “the conduct of related transactions,” including the “arrangement of financing and payment.”[12]

But the seemingly broad general license for medicine and medical devices carries its own limitations. The general license excludes certain medicines[13] and medical devices.[14] It also does not authorize transactions with persons or entities sanctioned under certain other legal authorities, including government entities that control broad swathes of the Iranian economy, like the Islamic Revolutionary Guard Corps (IRGC).[15] And the recent announcement of additional terrorism-related sanctions on the Central Bank of Iran (CBI) makes even certain transactions related to medical supplies subject to secondary sanctions.[16]

In October 2019, the U.S. appeared to acknowledge these practical difficulties by announcing a humanitarian “mechanism” for certain transactions in exchange for a commitment by companies and banks to conduct “enhanced due diligence.”[17] But it remains unclear whether this mechanism will have a significant effect on trade in medical supplies with Iran, including whether complying with these requirements will be feasible for companies.[18] Other than this announced mechanism, since October 2018 the U.S. has not made any major policy changes to make medicines or medical supplies more accessible.[19]

Part II: Effects of U.S. Sanctions After the Court’s Order

In its Order of October 3, 2018, the Court noted that “while the importation of foodstuffs, medical supplies and equipment is in principle exempted from the United States’ measures, it appears to have become more difficult in practice, since the announcement of the measures by the United States, for Iran, Iranian companies and nationals to obtain such imported foodstuffs, supplies and equipment.”[20] The Court observed in this regard that, 

as a result of the measures, certain foreign banks have withdrawn from financing agreements or suspended co-operation with Iranian banks. Some of these banks also refuse to accept transfers or to provide corresponding services. It follows that it has become difficult if not impossible for Iran, Iranian companies and nationals to engage in international financial transactions that would allow them to purchase items not covered, in principle, by the measures, such as foodstuffs, medical supplies and medical equipment.[21]

The available evidence suggests not only that the Court was correct at the time,[22] but also that many if not all of the difficulties remain or have even been exacerbated. And while it can be difficult to separate the impact arising from the measures announced on May 8, 2018 from that arising from certain other, more recently implemented sanctions—which are less clearly encompassed by the Court’s Order[23]—it is possible to document certain effects that are tied to the measures announced on May 8, 2018.

For example, Human Rights Watch has documented the case of a European company refusing to sell to an Iranian NGO called EB Home medication required for patients who suffer from epidermolysis bullosa, a genetic condition that results in blistering of the skin and which afflicts more than 800 persons in Iran.^[24] Through EB Home, the Iranian government had provided these patients with specialized dressings for blisters. However, in March 2019, before the recent wave of U.S. terrorism-related sanctions, the company wrote to the director of EB Home that, due to the U.S. sanctions, it had “decided not to conduct any business with relation to Iran for the time being,” and that its decision “applie[d] to business conducted under any form of exemptions to the US economic sanctions.”[25]

Human Rights Watch has also described the case of a bank in one of the countries that had received a waiver from the U.S. to purchase Iranian oil—funds which go to foreign accounts and can be used only to purchase non-sanctioned items like medicine—but nonetheless refused to finance transactions related to an ingredient for medicine in March 2019, despite the seemingly applicable general license.^[26] It has similarly documented the case of a bank in another country that had received waivers to purchase Iranian oil, but stopped all transactions with its Iranian counterparts after the U.S. refused to renew oil waivers in April 2019.[27]

More recently, sanctions have curtailed the Iranian government’s ability to respond to the global COVID-19 pandemic. On March 29, 2020, the Washington Post reported that, according to health workers and sanctions experts, “[s]weeping U.S. sanctions are hampering Iranian efforts to import medicine and other medical supplies to confront one of the largest coronavirus outbreaks in the world.”[28] In fact, some pieces of equipment needed to respond to the outbreak—such asoxygen generators, certain diagnostic medical imaging equipment, and certain decontamination equipment—fall outside the scope of the general license issued for medical devices.[29]  

While OFAC has indicated that it is prioritizing and expediting review of these license requests,[30] the approval rate of special licenses issued by OFAC for the export of specific medicines and medical devices to Iran has declined under the Trump administration—from more 50% during the first quarter of 2016 to 10% during the first quarter of 2019.[31]Moreover, many problems have also arisen as a result of over-compliance by companies that fear U.S. sanctions. In practice it has therefore become increasingly difficult for Iran, and Iranian companies and nationals, to engage in international financial transactions that would allow them to purchase even items not covered, in principle, by the sanctions. And while at present no acute nationwide lack of access to basic medications seems to have occurred, patients with rare diseases that require imported medications are facing increasing difficulty in obtaining treatment. This growing category includes patients suffering from cancer, epilepsy and various genetic diseases.[32]

Sanctions following the measures announced on May 8, 2018, as well as the other subsequently imposed sanctions designations, have exacerbated the situation. According to several media reports, after the September 2019 designation of the CBI, banks in South Korea fully stopped transacting with Iranian companies, including for humanitarian trade. Similarly, on January 2, 2020, the head of Public Relations at the Iranian Ministry of Health shared a screenshot from an email sent by a German company claiming that it was not possible to find a bank “which handles cross border payments between Iran and Germany.”[33]

Part III: Has the U.S. Breached the Court’s Order?

Unlike international agreements governed by the Vienna Convention on the Law of Treaties, there is no codified set of international rules governing the interpretation of the Court’s decisions.[34]  The Court has, however, provided guidance on the interpretation of its Judgments and Advisory Opinions, which may shed light on the proper approach to interpreting an order on provisional measures. 

In its Advisory Opinion on Voting Procedure, for example, the Court examined its earlier Advisory Opinion on Southwest Africa, interpreting its use of the phrase “the degree of supervision” in accordance with its “ordinary and natural meaning.”[35] It then went on to confirm its interpretation “by an examination of the circumstances which led to [the words’] use.”[36]

In its Advisory Opinion on Admissibility of Hearings, for its part, the Court found that in determining whether something was consistent with a previous Opinion, it had to “have regard to the whole of [that] Opinion and its general purport and meaning.”[37] Similarly, in interpreting the operative clause of its 1962 Judgment in Temple Preahar, the Court stated that it would “have regard to the reasoning of that Judgment to the extent that it sheds light on the proper interpretation of the operative clause.”[38] In addition, “[t]he pleadings and the record of the oral proceedings in 1962 [were] also relevant to the interpretation of the Judgment, as they show[ed] what evidence was, or was not, before the Court and how the issues before it were formulated by each Party.”[39]  

Applying these principles to the Court’s Order on provisional measures in the ongoing dispute between Iran and the U.S. suggests that the U.S. has likely breached the Order.  

First, the available evidence suggests that the U.S. failed to remove all “impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of … medicines and medical devices.”[40]

Although words cannot be interpreted in isolation,[41] the “natural and ordinary meaning” of the word “impediment” is broad, with dictionaries defining the term as, for example, “something that delays or stops the progress of something,”[42] or “something that makes progress, movement, or achieving something difficult or impossible.”[43] The language would therefore tend to suggest that, under the terms of the Order, the measures announced on May 8, 2018 may  have the direct or indirect effect of making it more difficult for Iranians to access medical supplies and equipment. One indirect effect—the problem of over-compliance—was alluded to by Iran in its application,[44] and the Court’s reasoning itself tends to confirm that the operative part of the Order was intended to address that issue. Thus, in noting, for example, that “the importation of foodstuffs, medical supplies and equipment is in principle exempted from the United States’ measures,” but that such importation nonetheless “appears to have become more difficult in practice,”[45] the Court suggested that it was concerned less with the existence of formal legal exemptions than it was with real-world results.

As described above, the effects of the sanctions—including in particular the sanctions announced on May 8, 2018—on Iranians’ access to medical supplies and equipment have been significant, and in ordering the U.S. to remove all “impediments,” the Court likely contemplated effects of this kind. Perhaps the best evidence is the Court’s observation that “as a result of the measures, certain foreign banks have withdrawn from financing agreements or suspended co-operation with Iranian banks”; “[s]ome of these banks also refuse to accept transfers or to provide corresponding services”; and “it has become difficult if not impossible for Iran, Iranian companies and nationals to engage in international financial transactions that would allow them to purchase items not covered, in principle, by the measures, such as foodstuffs, medical supplies and medical equipment.”[46] It would be odd for the Court to make these observations if it did not intend its Order to address the problems it observed. 

Moreover, as explained above, the U.S. Treasury’s general license for medicine and medical devices carries its own limitations, andseveral pieces of medical equipment crucial for responding to the COVID-19 pandemic appear to fall outside the scope of the general license issued for medical devices. In addition, the very fact that the U.S. has notimplemented any significant changes to make medical supplies and equipment more accessible since the Court’s Order—other than a humanitarian “mechanism” of still uncertain long-term effectiveness announced in October 2019—is itselfstrong evidence that it did not “remove” any significant impediments that the Court believed to exist for at least a full year after the Order was issued. 

The U.S. may have also breached the Court’s order that the Parties “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”[47] Since the date of the Court’s Order, the U.S. has implemented additional sanctions that have negatively impacted Iranians’ access to medicines and medical devices, such as the terrorism-related designation of the CBI. Whether or not such sanctions can be said to arise from the May 8, 2018 sanctions, to the extent that they aggravate or extend the dispute before the Court or make that dispute more difficult to resolve, they would appear to be prohibited.

***

In its Order of October 3, 2018, the Court issued a number of health-related provisional measures and observed that such orders have binding effect.[48] In light of the U.S.’s post-Order actions and the fact that it did not make any significant policy changes to make medical supplies and equipment more accessible for at least a year, as well as the uncertain benefit of the change it has made, it seems likely that the U.S. has breached the Order. It remains to be seen whether such a claim of breach will be adjudicated by the Court.

About the Authors:

Joseph Klingler is an attorney in Foley Hoag’s International Litigation and Arbitration Department in Washington, D.C. His practice focuses on the representation of sovereign States and State-owned entities in public international law disputes, especially in cases before the International Court of Justice, the Permanent Court of Arbitration, and the International Centre for Settlement of Investment Disputes.

Beau Barnes is an attorney in the Washington, DC office of Kobre & Kim LLP, where he represents individuals and companies facing government investigations, prosecutions, and regulatory enforcement actions related to national security, economic sanctions, export controls, fraud, and corruption.

Tara Sepehri Far is a researcher in the Middle East and North Africa Division at Human Rights Watch, where she investigates human rights abuses in Iran.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views or positions of their respective firms, organizations, or clients.