US Withdrawal from the Treaty of Friendship with Iran and the Ruling of the International Court of Justice

On Wednesday, the International Court of Justice in The Hague issued its provisional ruling in response to Iran's complaint against the United States. Iran's complaint was based on the "Treaty of Friendship, Economic Relations, and Consular Rights" from 1955, which had remained valid for 39 years since the Islamic Revolution, and despite the existing hostilities between Iran and the US, neither party had annulled it. The provisional ruling from the Hague Court, signed by fifteen judges, contains provisions addressed to both parties: it requested the US to remove obstacles to the export of humanitarian items to Iran in a manner of its choosing. (These items include medicines, medical equipment, food, agricultural products, spare parts, and necessary equipment for ensuring the safety of civilian flights). The court's ruling asked both sides to "avoid any actions that would exacerbate and prolong the dispute or complicate its resolution." Additionally, criticizing US policies, it urged the US government to "reconsider its long-standing and erroneous policies that violate international regulations and obligations and to act like a normal and responsible member of the international community." Another important point in the court's ruling emphasized that despite the provisional nature of the order issued by the court, this ruling is binding for both parties like final judgments, and in case of non-compliance, the matter will be referred to the Security Council. In such circumstances, the UN Security Council can issue another resolution obliging the parties to comply with the Hague Court's ruling. However, given that the US has veto power in the Security Council, it is unclear how such a complaint could be addressed. Some observers have considered the ruling issued by the court as the first ruling in the realm of "economic warfare" currently taking place at various international levels. This situation leaves the US free to impose what American officials claim will be the most severe sanctions in history, and the US can apply these severe sanctions, set to begin on November 4, in whatever manner it wishes. It remains unclear how effective these sanctions will be in practice, and considering the mechanisms of the European Union, the opposing positions of Russia and China, the intermediate positions of Turkey and Iraq, and the cooperation of Asian countries like South Korea and Japan, it is uncertain to what extent they will yield the desired results for the US. However, it is clear that Iranian leaders had 39 years to utilize the existing treaty to transform a government they call "hostile" into a friendly government aligned with the national interests and security of the country, but they did not do so. Iran and US reactions Shortly after the announcement of the Hague Court's ruling, while the Iranian Foreign Ministry deemed the court's ruling as a confirmation of the illegality and repressive nature of US sanctions, US Secretary of State Mike Pompeo, in his initial reaction, accused Iran of misusing the Hague Court for political purposes and stated that the court had rejected all of Iran's baseless claims. Subsequently, Pompeo announced that the United States was terminating its participation in the Treaty of Friendship. He stated, "This decision has been made after a 39-year delay." Pompeo cited the reason for the US decision as "strong evidence of Iran's involvement in recent attacks on the US consulate in Basra and the US embassy in Baghdad," describing these attacks as part of Iran's actions to "destabilize" Iraq. Effects of the US withdrawal from the 1955 Treaty At first glance, Article 23, Section 3 of the Treaty suggests that withdrawal from this treaty after the first ten years is possible by submitting a note to the other party within a one-year period. Given that there is currently no consular presence between the two countries, this one-year period may not be applicable, and the treaty could be annulled by submitting a written note. It seems that this one-year period was intended for the transfer of consular personnel and any movable property of diplomatic premises, which is inherently nullified by the hostage crisis and the occupation of the US embassy in the first year of the revolution. In fact, the hostage crisis and the occupation of the embassy were Iran's first practical actions to violate the treaty. However, it is still unclear whether the United States has submitted such a note to Iranian officials or if it will suffice with a verbal announcement. Impact of the US withdrawal on the Hague Court's ruling It seems that the US withdrawal after the announcement of the Hague Court's ruling will not be without legal consequences, and the court may still hold the US accountable for the issued ruling. Perhaps this is why the US Secretary of State, in a preemptive action, referring to sections of the court's ruling that address humanitarian issues and flight safety, stated that the US will adhere to "existing exceptions, permits, and policies currently in place for transactions related to flight safety" regardless of the Hague Court's ruling. In such a case, the US's action to withdraw from the treaty would not violate its adherence to the court's ruling, and as Pompeo states, those exceptions are accounted for in the US sanctions against Iran. At the same time, these statements may not convince Iran or the judges of the Hague Court, and each may pursue the matter as appropriate. It is still unclear whether all or parts of Iran's legal claims have been considered null and void, and we must await Iran's legal responses and the court's reply. However, the political and security impacts of the US withdrawal from the Treaty of Friendship could be long-term and take on broader dimensions. Currently, the issue of how to deal with individuals who either lack Iranian citizenship or are accused of collaborating with a hostile government due to dual citizenship is of interest to legal experts. It is not unlikely that courts, disregarding existing definitions and legal statuses, may take actions that escalate "hostility" with foreign governments or lead to increased friction and pressure regarding Iran's human rights violations. In 2012, Omid Kokabi, a young Iranian physicist who had returned from the US to Iran, faced accusations of collaborating with a hostile government (the US) and was subjected to Article 508 of the Islamic Penal Code. The implementation of this law subjects the accused to 1 to 10 years of imprisonment as a combatant. Omid Kokabi's lawyers requested a retrial and in this regard sought clarification from the Iranian Foreign Ministry. The response from the Ministry of Foreign Affairs of the Islamic Republic was explicit that "at present [time of inquiry], no government is in hostility with Iran, and the term hostility does not refer to political disputes with countries, and the court has made an error in interpreting this term." (Refer to Dr. Mehdi Khaghani Isfahani's article – Judicial Procedure Quarterly No. 1, Spring and Summer 2016 – p. 71). Although Omid Kokabi's conviction was reduced, currently many dual nationals like Siamak Namazi and his father Baqer Namazi, and even individuals without Iranian citizenship like Nizar Zaka, a Lebanese citizen, and Xiao Wang, a Chinese-American researcher, who have all been sentenced to ten years in prison, have faced similar accusations. There is a possibility that arbitrary prosecutions may be applied to a broader range of Iranians, from students to journalists and even ordinary citizens. The absence of the Treaty of Friendship or even the US withdrawal from the Treaty does not turn the US into a hostile state. The term hostile state refers to a country with which relations have officially entered a state of military war. At least at the time of writing this note, no country has declared war on Iran. Secondary sanctions after the US withdrawal from the Treaty of Friendship What is certain is that the US withdrawal from the 1955 Treaty prevents the continuation of Iran's complaint against the US, and consequently, any legal impact of the final ruling and the legal obligations of both parties will be caught in a fruitless legal dispute or will gradually become void. This situation leaves the US free to impose what American officials claim will be the most severe sanctions in history, and the US can apply these severe sanctions, set to begin on November 4, in whatever manner it wishes. The effectiveness of these sanctions in practice, considering the mechanisms of the European Union, the opposing positions of Russia and China, the intermediate positions of Turkey and Iraq, and the cooperation of Asian countries like South Korea and Japan, remains unclear. However, it is clear that Iranian leaders had 39 years to utilize the existing treaty to transform a government they call "hostile" into a friendly government aligned with the national interests and security of the country, but they did not do so.