On 16th of July, 2018, Islamic Republic of Iran filed an application for initiating proceedings against the United States of America before the International Court of Justice (‘the Court’ or ‘the ICJ’). Iran claims that US’ move to re-enforce the highest level of economic sanctions against Iran, first phase of which will become effective on August 6, after US’ withdrawal from the Joint Comprehensive Plan of Action (‘the JCPOA’), violates the provisions of the Treaty of Amity, Economic Relations, and Consular Rights (‘the Treaty’) that remains in force since 1958 between the two States. This Treaty obligates Contracting Parties to maintain and encourage “beneficial trade and investment relations… on the basis of reciprocal equality of treatment”. This Treaty contains a compromissory clause in the form of Article XXI (2) that accords the mandatory jurisdiction to the ICJ over “disputes arising as to the interpretation or application of the … Treaty”. Along with instituting proceedings, Iran has also made a request pursuant to Article 41 of the Court’s Statute to indicate provisional measures and order US to suspend implementation and enforcement of all economic sanctions imposed in relation to the JCPOA. This post seeks to analyse the meaning of ‘irreparable prejudice’, one of the legal prerequisites for passing an order under Article 41. It argues that the changing jurisprudence and the widening humanisation of State rights would allow a good foundation for Iran’s claim for provisional measures.
Irreparable Prejudice and the Shifting Approach of the ICJ:-
Article 41 authorises the Court to indicate provisional measures where the circumstances of the case so require, to preserve the rights of the parties which form the subject matter of the dispute. The jurisprudence of the ICJ and its predecessor World Court i.e. the Permanent Court of International Justice (‘the PCIJ’) unequivocally lays down the four pre-conditions for the Court to exercise its discretionary power under this provision. These four conditions are i) prima facie jurisdiction over the dispute; ii) plausibility of a case on merits, or, in other words, a prima facie case; iii) real and imminent risk of irreparable prejudice to be caused; and iv) existence of urgency.
Interpretation of the term ‘irreparable prejudice’ has often been viewed as a weaponising tool to broaden or shrink the ICJ’s and the PCIJ’s power to indicate provisional measures. Therefore, while its interpretation has been rather consistent, an inclination towards a broader array of power has led these courts to one and off divulge from a generally accepted meaning of the term. In Denunciation of the Treaty of November 2nd 1865 between China and Belgium, the PCIJ shaped the notion of irreparable prejudice as a damage which could not be made ‘good simply by payment of an indemnity or by compensation or restitution in some other material form’ and with its ruling in Legal Status of South Eastern Territory of Greenland increased the scope of the term by including a damage which could destroy the factual existence of the subject matter concerning the dispute. This conception of irreparable prejudice ties the term with the nature of the injury caused, and creates a narrow stream for only few cases to pass through where the injury cannot be computed or remedied in monetary terms.
During the PCIJ era, this test translated into a standard and was applied consistently and was followed by the ICJ in most of its contentious cases barring few exceptions. Proponents of a wider approach to the Court’s power under Article 41 critiqued this idea of paralleling irreparable prejudice to wealth. Judge Elias in his Separate Opinion in Aegean Sea Continental Shelf case cautioned, “might should no longer be right in today’s inter-State relations”. Nonetheless, one must question if Iran’s claim could satisfy this test of irreparable injury. In the request for indication filed by Iran, it seeks to protect only its economic rights of trade and commerce under the Treaty. Iran contends that targeting Iran, Iranian nationals and companies through sanctions violates the principle of fair and equitable treatment to nationals, fair treatment to like products, and its rights to export products to the territory of US. Noting the past history of the ICJ, Iran’s case for provisional measures would not be a one-sided affair if the Court were to consider the test established in South Eastern Territory of Greenland decision to be the litmus test. In the Aegean Sea Continental Shelf case, where Greece alleged existence of sovereign and economic rights over natural resources over an island and claimed provisional measures against continuous violation of such rights by Turkey, the ICJ declined the request to consider such rights irreparable. This case provides an insight into the Court’s treatment of such economic rights. Iran’s request itself provides in monetary terms the reduction in the size of its economy, and therefore begs the question if US’ violation of its economic rights causes real irreparable prejudice to Iran.
The Court, however, adopted a different approach to its powers under Article 41 in the Frontier Dispute (Burkina Faso/Mali) and Case Concerning Land and Maritime Boundary between Cameroon and Nigeria case. Following the Electricity Company of Sofia and Bulgaria from the PCIJ, these two cases noted that the
chamber possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require
This ‘prevention of aggravation of dispute’ standard is wider than the statutorily codified purpose of provisional measures i.e. preservation of rights and has often been subject to its own share of criticisms by scholars. Such a standard can, perhaps, cover within its fold every case of continuing violation as in the present case of Iran without really assessing the urgency of an interim remedy, which constitutes an important requisite for exercise of powers under Article 41.
The latest jurisprudence of the Court inadvertently seeks to strike a middle ground with its new approach in defining irreparable prejudice. Judge Bhandari in Jadhav case defined irreparable prejudice as prejudice which could make restoring status quo ante impossible. He further noted that even if Jadhav’s execution is stayed, a continual violation of India’s right under Vienna Convention on Consular Rights would result in a denial of adequate access to judicial remedies for Mr. Jadhav, and India’s ability to protect Mr. Jadhav’s right in custody [para. 34]. By following such an approach, Judge Bhandari conceived these consular rights not just as protecting any State’s interest, but as preserving deep rooted humanitarian values and preventing the implications that the violations of such rights can have in a human rights paradigm. This philosophy is even more apparent in the latest decision on provisional measures by ICJ in Qatar v. UAE. Qatar has challenged UAE’s implementation of discriminatory policies against its national living in UAE, constituting a clear violation of Convention on Elimination of Racial Discrimination. It requested for indication of provisional measures for the irreparable prejudice caused to Qataris in UAE who were compelled to stay away from families, discontinue their schooling, denied access to medical care, property, and even right to work. The Court again applying the status quo ante standard noted the implication of violating particularly the economic, social and cultural rights, right of equal treatment and other basic civil liberties [para. 63 & 67] of citizens. Concluding that the situation demanded indication of measures, it followed a similar trend of understanding the nature of State rights through the prism of an individual citizen’s rights.
Arguably, Iran’s claim would have a different conclusion by this standard. Iran’s case provides a peculiar instance that highlights the minute distinction between the two standards due to the peculiarity of the rights involved. Typically, a State’s economic rights would fall within the category of rights measurable in quantitative terms and lack merit for indication of provisional measures. However, the enforcement of US’ crippling sanctions would trample upon a larger set of individual rights than mere Iran’s rights under the Treaty, which the Court would not be able to restore to status quo ante through its decision on the merits. Crushing the economic rights of Iranians, in and outside Iran, has a direct bearing on their standard of living, extending even to their financial survival in some cases. On a secondary level, it also impacts the level of opportunities and choices available to Iranians in the society. Additionally, by shrinking Iran’s economy, such sanctions seriously endanger the Iran government’s ability to preserve and promote the social rights of its citizens. The ICJ’s application of its emerging approach, therefore, would favour Iran’s request for indication of provisional measures.
Considering that the US has not submitted its response to Iran’s application for institution of proceedings, it would be pre-mature to comment on whether the dispute relates to the interpretation or application of the Treaty and if the ICJ could find a prima facie basis for its jurisdiction under the compromissory clause of the Treaty. However, the unique nature of the economic rights involved in this case compels one to comprehend the meaning of ‘irreparable prejudice’ in the context of Article 41 of the Court’s Statute. Although economic rights in a limited sense gives an impression of rights protecting trade and commercial interests and therefore capable of quantification in monetary terms, a broader look at these rights uncover a humanitarian interest protected by these rights. Jadhav case involves the risk of factual destruction of the subject matter of the dispute, and Qatar case involves a claim based on human rights instrument. In these cases, therefore, the Court did not choose to apply a broader approach rather the approach begged itself. However, Iran’s case accords a chance for the Court to ponder and comment upon the emerging approach of humanisation of State rights.
*Rohan Jain is a fourth year student pursuing an undergraduate degree in law from National University of Juridical Sciences, Kolkata, India.