While I have joined the unanimous Judgment of the Court in so far as it rejects the United States' two preliminary objections to the jurisdiction of the Court, as well as its preliminary objection based on Article XX, paragraph 1 (d), of the Treaty of Amity, Economic Relations, and Consular Rights (hereinafter the "Treaty of Amity"), I diverge from the Judgment in so far as it (1) finds the Application of the Islamic Republic of Iran to be admissible and (2) declines to accept the United States' preliminary objection based on Article XX, paragraph 1 (b)1.
The reality is that abuse of process has become the holy grail of international law as applied by the Court and its predecessor, the Permanent Court of International Justice (hereinafter the "PCIJ"), i.e. something in which this Court fervently believes, but the actual shape, substance and content of which the Court never has ascertained. As Judge Donoghue wrote in her dissenting opinion in Immunities and Criminal Proceedings (Equatorial Guinea v. France) : "I am not aware of any authoritative definition of ['abuse of process'] in the context of international adjudication"5. Indeed, neither the Court nor the PCIJ ever has come to grips with the concept of abuse of process, doubtless due to the total absence anywhere of a definitive description or inventory of its contents. I doubt not that this is the reason that in the 95 years since the concept was first addressed judicially neither this Court nor its predecessor ever has applied it to adjudge an application to be inadmissible, despite their various mentions of it.
"This concept is relatively recent in private law, but it is already generally accepted. Even before the first World War, some publicists had asked that it should be extended to international law. Because of the new conditions that have arisen in the life of peoples, it is necessary to-day to find a place for this concept, and the International Court of Justice must take its share in this evolution."11
In the Ambatielos case in 1953, the Court dealt with the first plea made to it expressly based on abuse of process. The United Kingdom argued that Greece was responsible for "undue delay and abuse of the process of the Court" in that only in 1951 had it made its application to the Court, which it could have done 25 years earlier, in 1926. The Court rejected that defence, stating that Greece had not done "anything improper in instituting proceedings [when it did] in conformity with the relevant provisions of the Statute and Rules of Court"12. Following that, in 1966, Judge Forster in his dissenting opinion to the Judgment in the South West Africa cases argued, given that the League of Nations Mandatory for German South West Africa (today Namibia), i.e. South Africa, had full power over the territory subject to the Mandate, "the discretionary power cannot cover acts performed for a purpose different from that stipulated in the Mandate. Such acts would be an abuse of power [détournement de pouvoir]"13.
"that declaration is not part of the Award, and therefore... any attempt by Guinea-Bissau to make use of it for that purpose 'must be regarded as an abuse of process aimed at depriving Senegal of the rights belonging to it under the Award'. Senegal also contends that the remedies sought are disproportionate to the grounds invoked and that the proceedings have been brought for the purpose of delaying the final solution of the dispute."14
The Court rejected Senegal's claim of inadmissibility, however, stating
"that Guinea-Bissau's Application has been properly presented in the framework of its right to have recourse to the Court in the circumstances of the case. Accordingly, it does not accept Senegal's contention that Guinea-Bissau's Application, or the arguments used in support of it, amount to an abuse of process."15
One year later, and 29 years ago, in 1992, the Court itself raised the issue of "abuse of process" unprompted for the first time in Certain Phosphate Lands in Nauru. Australia had argued that "Nauru has failed to act consistently and in good faith" and on that basis urged that "the Court in exercise of its discretion, and in order to uphold judicial propriety should... decline to hear the Nauruan claims"16. The Court responded as follows:
"[T]he Application by Nauru has been properly submitted in the framework of the remedies open to it. At the present stage, the Court is not called upon to weigh the possible consequences of the conduct of Nauru with respect to the merits of the case. It need merely note that such conduct does not amount to an abuse of process."17
Notwithstanding having dealt with two cases in succession in which the respondent, and then the Court itself, had invoked the concept of "abuse of process" expressis verbis, in 1996, in the Bosnian Genocide case, the Court returned to addressing "abuse of rights"18. Bosnia-Herzegovina argued that Yugoslavia abused its rights by presenting wholly artificial preliminary objections in an attempt to play for time by unjustifiably delaying the proceedings, although, it should be noted, Bosnia's counsel in fact did refer to "abuse [of] the procedure of the Court"19, citing the Court's Judgment in the Nauru case20, in which, as noted above, the Court rendered its decision based on its analysis of "abuse of process". Nevertheless, in dealing a few years later with the Aerial Incident of 10 August 1999, the Court continued to speak of "abuse of rights", Pakistan having claimed that India had been guilty of such an abuse when it included, in its declaration accepting the Court's compulsory jurisdiction under Article 36 (2) of the Court's Statute, a reservation excluding from such acceptance disputes with States which are or have been a member of the "Commonwealth of Nations". In finding the application admissible, the Court concluded as follows:
"[The Court cannot] accept Pakistan's argument that India's reservation was a discriminatory act constituting an abuse of right because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It notes in the first place that the reservation refers generally to States which are or have been members of the Commonwealth. It would add... that States are in any event free to limit the scope ratione personae which they wish to give to their acceptance of the compulsory jurisdiction of the Court."21
In its 2004 Judgment in Avena and Other Mexican Nationals, the Court dealt with an objection that the respondent (the United States) characterized as relating to an "abuse of the Court's jurisdiction"22. The abuse was said to stem from the fact that Mexico had invited the Court to make "far-reaching and unsustainable findings concerning the United States criminal justice systems"23. The Court rejected this objection, finding that it was not barred from enquiring into the conduct of criminal proceedings in United States courts, and the degree to which it might do so was a matter for the merits of the case24. While the United States did not use the terms "abuse of rights" or "abuse of process", and while it presented this objection as going to the Court's jurisdiction rather than as an objection to the admissibility of Mexico's claims, the objection nonetheless could be considered an abuse of process objection, relating as it did to an alleged abuse of the Court's procedures. While 14 years passed before the Court again was seised of a case in which either "abuse of rights" or "abuse of process" was in issue, it is worth noting that such abuses continued to be subject to acknowledgment and acceptance as a basis for dismissal of an application. Thus Judge Keith's declaration in Certain Questions of Mutual Assistance in 2008, while agreeing with the decision of the Court, expressed a preference for different reasoning, specifically that the acts in issue constituted "an abuse of power or a détournement de pouvoir — an exercise of the power for wrong reasons and a thwarting of the purpose of the Convention", compliance with which was in issue25.
"In the case law of the Court and its predecessor, a distinction has been drawn between abuse of rights and abuse of process. Although the basic concept of an abuse may be the same, the consequences of an abuse of rights or an abuse of process may be different.27
An abuse of process goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings.28
As to the abuse of rights... it will be for each Party to establish both the facts and the law on which it seeks to rely at the merits phase of the case. The Court considers that abuse of rights cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits. Any argument in relation to abuse of rights will be considered at the stage of the merits"29.
It is this case in which for the first time a judge of the Court, namely Judge Donoghue, as noted in paragraph 4 above, concluded in her dissenting opinion that the application should have been dismissed at the preliminary stage as being an abuse of process, and therefore inadmissible.
Particularly in light of Judge Donoghue's dissenting opinion, it is troubling that even then the Court did not see itself compelled to do more in dismissing France's abuse of process objection than intone the by now ritual but opaque catchphrases "clear evidence" and "exceptional circumstances":
"In this case, the Court does not consider that Equatorial Guinea, having established a valid title of jurisdiction, should be barred at the threshold without clear evidence that its conduct could amount to an abuse of process. Such evidence has not been presented to the Court. It is only in exceptional circumstances that the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process. The Court does not consider the present case to be one of those circumstances."30
It is as though the Court is determined to continue 95 years of enshrouding the principle of abuse of process in mystery, leaving consequently unedified litigants wondering whether the Court itself knows its substance, let alone the threshold for its application. The Court thus would do well to clarify both the principle and the evidentiary condition for its acceptance.
To date, the Court has been unable to discern any distinction among paragraphs 1 (a), (b), (c) and (d) of Article XX of the Treaty of Amity, which article provides as follows:
"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."
I have agreed, both here, and in Certain Iranian Assets, that a defence based on Article XX, paragraph 1 (d), indeed is to be heard at the merits phase, as the Court previously had ruled in the Oil Platforms case, relying both there and in Certain Iranian Assets (para. 45) on its Judgment in Military and Paramilitary Activities in and against Nicaragua. It seemed to me then, and seems to me now, obvious, given the allegations on which the United States has relied in regard to that defence, that a decision as to whether "measures... [have been] necessary to protect its essential security interests", which defence is not self-judging, involves such a multitude of factors to be considered as to require that it be addressed at the merits stage.
"In the Court's opinion, this same interpretation also applies to Article XX, paragraph 1, subparagraph (c), of the Treaty since, in this regard, there are no relevant grounds on which to distinguish it from Article XX, paragraph 1, subparagraph (d).
The Court concludes from the foregoing that subparagraphs (c) and (d) of Article XX, paragraph 1, do not restrict its jurisdiction but merely afford the Parties a defence on the merits."37
In fairness, in Certain Iranian Assets, I, too, did not distinguish between paragraphs 1 (c) and (d). Inasmuch as the claim in that case was for damages to the extent that Iranian assets subject to United States jurisdiction were being paid out to successful United States plaintiffs in United States court cases against Iran in which Iran defaulted, and given the language of paragraph 1 (c), at least in that situation, clearly in my view, like paragraph 1 (d), for the reasons I have expressed above regarding paragraph 1 (d), it required consideration at the merits stage38.
"The Applicant contends that subparagraph (b), which refers to measures 'relating to fissionable materials, the radio-active by-products thereof, or the sources thereof', should be interpreted as addressing only measures such as those specifically concerning the exportation or importation of fissionable materials. It was however argued by the Respondent that subparagraph (b) applies to all measures of whatever content addressing Iran's nuclear programme, because they may all be said to relate to the use of fissionable materials. The question of the meaning to be given to subparagraph (b) and that of its implications for the present case do not have a preliminary character and will have to be examined as part of the merits."
"Let me recall the factual background of the decision of the United States to reimpose and to aggravate nuclear-related sanctions and restrictive measures. These 'nuclear-related' sanctions, Mr. President, which Iran has always considered as unlawful, had been built up by the United States, first back in 1996 and then in 2006 and afterwards, through a series of legislative and executive acts targeting entire economic sectors as well as several Iranian individuals."50
In its Memorial, Iran recognizes that "the JCPOA lifted sanctions whose motivation was related to an alleged Iranian military nuclear programme"51. In Chapter II of its Memorial, Iran states that it will describe "in detail the re-imposed 'nuclear-related sanctions' in order to clarify their purpose, scope, specific terms, and implementation"52. In its Observations and Submissions on the United States' Preliminary Objections, Iran states straightforwardly that:
"The Application filed by Iran in the present case deals with questions based on legal considerations: namely, whether the United States, by reimposing nuclear-related sanctions after the 8 May 2018 [sic], has breached its legal obligations under a valid international treaty, the Treaty of Amity."53
"[t]he material before the Court... includes statements by representatives of States, sometimes at the highest political level. Some of these statements were made before official organs of the State or of an international or regional organization, and appear in the official records of those bodies. Others, made during press conferences or interviews, were reported by the local or international press. The Court takes the view that statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission."54
As described above, in the present case, the "nuclear-related" nature of the sanctions at issue in this case has been acknowledged not only in official statements of high-ranking Iranian officials, but in the text of the JCPOA itself and in discussions of that instrument. Furthermore, such statements were also made by Iran's Agent himself during the very first hearing in this case, as well as repeatedly in Iran's Memorial submitted in this proceeding and in its Observations and Submissions on the United States' Preliminary Objections. These statements thus constitute admissions against interest55.
The Court has not referred in respect of this issue to the Vienna Convention on the Law of Treaties (hereinafter the "VCLT"). I suggest that reference to its Article 31 would have been in order. In my view, application of Article 31 (1), interpreting Article XX, paragraph 1 (b), of the Treaty of Amity "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" should have led to the conclusion that the United States' preliminary objection based on paragraph 1 (b) requires the dismissal of the Application. The "ordinary meaning" of "relating to fissionable materials" could not be in doubt. The Treaty of Amity's context included nothing listed in Article 31 (2) of the VCLT other than the Treaty of Amity's "text, including its preamble and annexes", of which latter there are none. The Treaty of Amity's preamble, which sets the "object and purpose" intended to be reflected in its articles, reads as follows:
"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"; emphasis added.
The fact that the Treaty of Amity's preamble, for present purposes, focuses on "encouraging mutually beneficial trade and investments and closer economic intercourse generally between their peoples" and, overall, is — as I noted in my separate opinion in Certain Iranian Assets (para. 19) — "essentially commercial in nature", in no way is inconsistent with the Treaty of Amity's inclusion of provisions such as paragraph 1 (b), and also (d), which provide the two States parties a "safe exit" from their mutual commerce, if and when serious issues arise that militate against continuation of such commerce or dictate the need for its limitation. Unlike paragraph 1 (d), however, given its language, paragraph 1 (b) is subject to being decided as a preliminary matter. Alone, the "context" of the terms of the Treaty of Amity itself is significant. In that sense, paragraph 1 of Article XX itself is contextually material, in that the scope of "relating to fissionable materials" in paragraph 1 (b) obviously is quite different from that of "regulating" either "the importation or exportation of gold or silver" in paragraph 1 (a) or "the production of or traffic in arms", etc. in paragraph 1 (c)., to say nothing of "necessary to protect its essential security interests" in paragraph 1 (d). Nothing in the VCLT's Article 31 (3) (a) or (c) is applicable here, nor is Article 31 (4).
What is left as regards application of the VCLT are Article 31 (3) (b), "[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation", and Article 32, "supplementary means of interpretation", which include, but are not limited to, the travaux préparatoires, of which nothing relevant to paragraph 1 (b) has been submitted, and "the circumstances of [the treaty's] conclusion". As to those "circumstances", one can note again that even at the time the Treaty of Amity was concluded in 1955, issues of nuclear proliferation were highly sensitive and critical to international peace and security. Certainly, the United States would have wished effectively to reserve the right to take "measures", otherwise violative of the Treaty of Amity, in order to suppress possible nuclear proliferation, and to which Iran at that time easily would have agreed. It was the height of the Cold War, in which period a number of mutual defence treaties and other regional alliances were formed. Indeed, it is well known that precisely in 1955, President Eisenhower, as President of the United States, and his Secretary of State, John Foster Dulles, promoted and supported in many ways the formation that very year, on 24 February, of the Middle East Treaty Organization (METO), known as the Baghdad Pact, the member States of which were Iran, Iraq, Pakistan, Turkey and the United Kingdom, which later became the Central Treaty Organization (hereinafter "CENTO"). The Treaty of Amity was signed on 15 August 1955, just six months later56. CENTO terminated in 1979, the year of the Islamic Revolution in Iran. Given that "supplementary means of interpretation" are not defined, the many statements set forth above of authorized representatives of Iran and the United States, as well as the language of the JCPOA itself, to the effect that precisely those sanctions that are the subject of the Application are "nuclear-related", should have settled the meaning of paragraph 1 (b) and led to the dismissal of the present Application.
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