مجله حقوقی بین المللی
پیاپی 73 (بهار 1403)

According to the definition provided by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001 (the ARSIWA), a breach of an obligation refers to conduct that is inconsistent with a state's obligation. State responsibility consists of two elements: attribution and breach of obligation. Therefore, after attributing an action to a state, it becomes crucial to assess the nature and scope of the breach of obligation. Notably, a state may adopt domestic legislation that is incompatible with its international obligations, even without taking practical measures in line with the implementation of such domestic law. In the judgment of Certain Iranian Assets, the International Court of Justice (the Court) adopted a distinct perspective on the violation of the United States’ obligations arising from the 1955 Treaty of Amity. The Court's approach in deeming the United States’ actions unlawful in relation to Iran's claims, particularly Articles 5 and 10, involves verifying the incompatibility of the United States' legislative, executive, and judicial actions with these provisions, and subsequently seeking objective evidence to declare them as illegal measures against Iran. Therefore, in addressing the main question of this paper, which is whether engaging in conduct inconsistent with an obligation alone constitutes a breach, and whether the Court must require at least one example of such breach in the form of an external manifestation of the specific defect, it is asserted that the criterion for determining a violation mirrors the one outlined in the ARSIWA: the incompatibility of a state's conduct with the content of the obligation.

The decision of the International Court of Justice on March 30, 2023, is a significant achievement in the legal field of various claims between the Islamic Republic of Iran and the United States.
the International Court of Justice has divided central bank’s activities into two categories: 1- Commercial activities (banking operations, credit operations, buying and selling) 2- Sovereign actions (such as preserving the value of money and creating financial transparency) in the first category, the court found the United States in violation of the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran Tehran and by considering the Central Bank as a company (in the field of its commercial activity), affirmed the discriminatory behavior of the United States against it and accordingly condemned the United States . At the end, the Court did not accept the United States’ claims and while rejecting its jurisdiction over the violation of the Central Bank’s property immunity, set a two-year deadline for the parties to negotiate over the compensation of damages. In this article, we sought to analyze the commercial performance of the Central Bank of Iran and criticize the judgment of the Court in the jurisdiction part.

The principle of state immunity and the protection of state assets under international law have undergone a progressive evolution over time. Rooted in customary international law, this principle finds support in general and special treaties, customary rules, and judicial practice. It establishes that all property, locations, possessions, and tangible and intangible assets belonging to a State located in another jurisdiction must be respected are to be accorded respect and safeguarded against any form of attack or interference by administrative or executive actions. However, exceptions to immunity have emerged in light of the evolving nature of international law. In this regard, the United States courts, invoking the Anti-Terrorism and Effective Death Penalty Act passed by Congress in 1996, have seized assets and properties belonging to the Iranian government, especially the bonds of Bank Markazi, on the grounds that Iran is considered a state sponsor of terrorism. Subsequently, Iran initiated legal proceedings against the United States before the International Court of Justice on June 14, 2016, alleging breaches of state immunity and the Treaty of Amity. The Court issued a jurisdictional ruling on February 13, 2019, and a substantive verdict on March 30, 2023. This research critically examines whether the Court considered (the assets of) the Central Bank of Iran as a sovereign and State entity entitled to immunity, or whether it construed the Bank as a corporate entity under the purview of the Treaty of Amity of 1955. Recruiting a descriptive-analytical approach to examine relevant treaties and court decisions, it concludes that, due to the sovereign nature of Bank Markazi of Iran, the seizure of assets belonging to this government institution falls outside the protective scope of the Treaty of Amity. Consequently, the Court possesses the authority to adjudicate on the issue of immunity concerning Bank Markazi. Notably, the Court's 2023 decision deviates from its previous 2019 decision, acknowledging the sovereign nature of Bank Markazi and the customary rule governing the dispute.

In the case concerning Certain Iranian Assets, the United States lodged several procedural and occasional substantive objections in the preliminary stage with the aim of impeding the International Court of Justice (ICJ) from issuing a substantive ruling. These objections primarily centered around the Court's alleged lack of jurisdiction over the Case. Additionally, the United States questioned the admissibility of Iran's claim based on two fundamental charges: "Iran's abuse of court" and "absence of clean hands." These objections sought to undermine Iran's claim and its admissibility. Before delving into other claims, the ICJ addressed the objections raised by the United States, maintaining its established approach in recent similar cases. This article employs a descriptive-analytical methodology and draws upon library sources to not only clarify and refute the arguments and reasoning put forth by the United States regarding the admissibility of Iran's claim, but also to confirm the hypothesis that the Court adheres to its mainstream judicial policy on matters of "abuse of right" and "absence of clean hands." Moreover, the article characterizes the Court's current approach as consistent with recognized customary practices among international legal practitioners.

The protection of nationals is a significant issue in international law, albeit not contemporary. However, such protection is recognized by the respective State only if the injured individual has exhausted all available legal avenues for remedies (both administrative and judicial) within the domestic authorities of the defendant State. This requirement, serving as a precondition for initiating a lawsuit before international courts or tribunals, affords the host State the opportunity to investigate the alleged violation and provide redress. This article examines how the International Court of Justice (ICJ/ the Court) addresses preliminary objections and claims of non-compliance with the exhaustion of local remedy rule in cases brought before the Court. Employing a descriptive-analytical method and relying on library sources, the article explores the concept of access to justice and the exhaustion of local remedy rule in international disputes, with a particular focus on the ICJ's judgment of March 30, 2023, regarding the case of Certain Iranian Assets. The primary finding of this study is that the Court, departing from its previous approach and emphasizing the efficacy of remedies, dismissed the United States' objection that Iran failed to comply with the rule. The Court emphasized that the exhaustion of local remedy rule should be assessed on a case-by-case basis, taking into account the prevailing circumstances.

The "Certain Iranian Assets" case provided an opportunity for the International Court of Justice to examine applicability of the Clean Hands Doctrine. In its judgment, the Court explicitly stated that the Clean Hands Doctrine cannot be regarded as part of customary international law or does not constitute a general principle of law. This case study explores the Clean Hands Doctrine, its evolutions in legal precedent and doctrine, and analyzes the Court’s judgment in light of the opinions of the Court’s judges and relevant legal instruments. The study concludes that the Court, by adhereing its precedent (stare decisis), notably in the Jadhav Case, and endorsing the International Law Commission approach in the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (the ARSIWA) and the Draft Articles on Diplomatic Protection, affirmed that the Clean Hands Doctrine is not a determinative factor in the admissibility of a claim, the establishment of rights, or their denial. This judicial approach facilitates international adjudication, especially in cases where States have initiated proceedings with unclean hands and, may in some cases, exempt disputing parties from proving their clean hands.

This research examines the individual opinions expressed by judges of the International Court of Justice (ICJ) in the case of "Certain Iranian Assets", specifically focusing on the issue of excluding Bank Markazi (Central Bank of Iran) from the treaty's purview. The case revolves around Iran's effort to lift the seizure of approximately two billion dollars of assets held by the Bank Markazi of Iran in the United States, citing a violation of the Treaty of Amity. While the majority of judges agreed with excluding the Bank from the scope of the Treaty, a minority of five judges held a dissenting opinion. The core of contention among the judgescentered on whether the purchase and holding of twelve bonds by the Central Bank of Iran should be considered as a sovereign act or a commercial act. This research aims to analyze the reasoning employed by both the majority and minority judges in arriving at their respective conclusions. The study recruits a descriptive-analytical method, relying on library sources for data collection. Findings show that although the majority opinion did not secure Iran’s material interests in this case, it emphasized the sovereign nature of the purchase of bonds by theBank, thereby safeguarding Iran’s ultimate interests in maintaining the Bank’s immunity against actions by other governments.

The International Court of Justice, in the case of Certain Iranian Assets, by considering the scope of international obligations of the United States, including and in partcular the head of Article 3 of the Treaty of Amity, Economic Relations and Consular Rights, has confirmed that the fundamental dispute between the parties is about the recognition of the legal status of foreign companies. The present essay by applying a descriptive-analytical method and through observing the precedents of the international judicial and arbitration tribunals and the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts, has proven that the actions of the United States Section 201(a) of the Terrorism Risk Insurance Law and Section 601(g)(1) of the Foreign Government Immunities Act in particular and their enforcement by their national courts are according to the customary internatonal law attributable to the United States and consequently this country has violated its treaty obligations. Thus, both elements required to establish the existence of an internationally wrongful act have been met and accordingly the responsibility of the United States has been . The Court, in line with the request of the Islamic Republic of Iran, has ordered compensation in favour of Iran as a result of such responsibility.

Violations of the Treaty of Amity, Economic Relations and Consular Rights (1955) by the United States of America has a history almost as old as the life of the Islamic Republic of Iran. It is said that violating any international obligation causes the international responsibility of the violating state. Still, it is the affected state that demands the determination of the violations and compensation for the damages caused by the violations from the judicial bodies.
In the judgment of March 30, 2023, in the case of certain Iranian assets, the International Court of Justice confirmed the violations of Articles 3, 4, and 10 of the Treaty of Amity by the US, and determined the international responsibility of the US against Iran., ICJ by not paying attention to the preliminary objections, showed that it does not allow the violating state to mock its obligations with the trick of unilateralism. ICJ's emphasis on the commitment of the US to pay compensation to specify the principle of the rule of law, and to grant a deadline of 24 months to Iran and the US to agree on the amount and method of paying compensation, respecting the agreement of the states.
Regardless of the constitutive aspect of the verdict regarding the payment of compensation, the declaration of the international responsibility of the US in terms of violating various articles of the Treaty has a declarative aspect.

In the jurisdictional phase of the case of "Certain Iranian Assets," the International Court of Justice (ICJ/ the Court) held that the "commercial nature of the action" carried out by the Central Bank of Iran was sufficient to assess this institution as protected by the Treaty of Amity between Iran and the United States. However, in its subsequent judgment on the merits, the Court's standard shifted to focus on the "function" of this institution, deviating from its previous decision. This article, relying on precedent and doctrine, examines whether the Court is permitted to deviate from its precedent. It argues that when the issue has not changed, the Court's meaning and interpretation of a treaty must remain valid, unless there is a reasonable justification for deviating from the previous interpretation. In the present case, it appears that the Court, by deviating from its earlier decision, disregarded the principle of res judicata and the formal standards governing the matter. However, this deviation secured a greater interest, namely that the property of the Iranian Central Bank is absolutely sovereign, and as a result, the Bank enjoys the benefits of sovereign immunity under customary international law. This development has been influential in how Iran's interests are pursued before the Court.

This paper aims to explore the potential influence of the International Court of Justice's (ICJ/ the Court) judgment delivered on March 30, 2023, in the Certain Iranian Assets Case on the upcoming judgment in the case concerning Alleged Violations of the 1955 Treaty of Amity between Iran and the United States. Given the Court's consistent emphasis on maintaining fidelity to its precedent, particularly in cases dealing with violations of the Treaty of Amity, it becomes imperative to assess the potential impact of the Court's previous judgment on the pending case. This assessment encompasses both the Court's decision on preliminary issues and its final judgment on the merits. As the examination of preliminary issues primarily involves legal and juridical questions, the effect of the earlier judgment on the pending case is likely to be of greater significance.