                              INTERNATIONAL COURT OF JUSTICE

                               REPORTS OF JUDGMENTS,
                            ADVISORY OPINIONS AND ORDERS

                              ALLEGED VIOLATIONS
                    OF THE 1955 TREATY OF AMITY, ECONOMIC
                       RELATIONS, AND CONSULAR RIGHTS
                       (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                     OF AMERICA)

                                PRELIMINARY OBJECTIONS

                              JUDGMENT OF 3 FEBRUARY 2021

                                     2021
                              COUR INTERNATIONALE DE JUSTICE

                                 RECUEIL DES ARRÊTS,
                          AVIS CONSULTATIFS ET ORDONNANCES

                           VIOLATIONS ALLÉGUÉES
                      DU TRAITÉ D’AMITIÉ, DE COMMERCE
                      ET DE DROITS CONSULAIRES DE 1955
                       (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                      D’AMÉRIQUE)

                               EXCEPTIONS PRÉLIMINAIRES

                                ARRÊT DU 3 FÉVRIER 2021

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                                                   Official citation:
                        Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
                           and Consular Rights (Islamic Republic of Iran v. United States
                                  of America), Preliminary Objections, Judgment,
                                              I.C.J. Reports 2021, p. 9

                                              Mode officiel de citation :
                                 Violations alléguées du traité d’amitié, de commerce
                     et de droits consulaires de 1955 (République islamique d’Iran c. Etats-Unis
                                     d’Amérique), exceptions préliminaires, arrêt,
                                               C.I.J. Recueil 2021, p. 9

                    ISSN 0074-4441
                                                                     Sales number
                                                                     No de vente:    1215
                    ISBN 978-92-1-003876-8

                                      © 2022 ICJ/CIJ, United Nations/Nations Unies
                                          All rights reserved/Tous droits réservés

                                          Printed in France/Imprimé en France

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                                                      3 FEBRUARY 2021

                                                         JUDGMENT

                               ALLEGED VIOLATIONS
                     OF THE 1955 TREATY OF AMITY, ECONOMIC
                        RELATIONS, AND CONSULAR RIGHTS
                    (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                  OF AMERICA)
                             PRELIMINARY OBJECTIONS

                             VIOLATIONS ALLÉGUÉES
                        DU TRAITÉ D’AMITIÉ, DE COMMERCE
                        ET DE DROITS CONSULAIRES DE 1955
                    (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                   D’AMÉRIQUE)
                            EXCEPTIONS PRÉLIMINAIRES

                                                       3 FÉVRIER 2021

                                                          ARRÊT

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                    9

                                              TABLE OF CONTENTS

                                                                                Paragraphs

                    Chronology of the Procedure                                              1-23
                        I. Factual Background                                               24-38
                    II. Jurisdiction of the Court Ratione Materiae under
                        Article XXI of the Treaty of Amity                                 39-84
                          1. First preliminary objection to jurisdiction: the subject-matter
                             of the dispute                                                  42-60
                          2. Second preliminary objection to jurisdiction: “third country
                             measures”61-83
                    III. Admissibility of Iran’s Application                                85-96
                    IV. Objections on the Basis of Article XX, Paragraph 1 (b)
                        and (d), of the Treaty of Amity                                    97-113
                    Operative Clause                                                          114

                    4

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                    10

                                    INTERNATIONAL COURT OF JUSTICE

        2021
                                                       YEAR 2021
     3 February
     General List                                    3 February 2021
       No. 175

                              ALLEGED VIOLATIONS
                    OF THE 1955 TREATY OF AMITY, ECONOMIC
                       RELATIONS, AND CONSULAR RIGHTS
                            (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                          OF AMERICA)

                                           PRELIMINARY OBJECTIONS

                       Factual background.
                       1955 Treaty of Amity in force on date of filing of Application — Iran party to
                    1968 Treaty on Non‑Proliferation of Nuclear Weapons — International Atomic
                    Energy Agency and Security Council critical of Iran’s nuclear activities — Secu-
                    rity Council resolutions on Iranian nuclear issue — Iran subject to nuclear-related
                    “additional sanctions” by United States — Joint Comprehensive Plan of Action
                    (“JCPOA”) concerning nuclear programme of Iran concluded on 14 July 2015 —
                    Revocation of certain United States nuclear-related “sanctions” under Executive
                    Order 13716 of 16 January 2016 — Participation of United States in JCPOA
                    terminated under National Security Presidential Memorandum of 8 May 2018 —
                    Reimposition by United States of “sanctions” on Iran, its nationals and companies
                    under Executive Order 13846 of 6 August 2018.

                                                             *
                       Jurisdiction of the Court ratione materiae under Article XXI of Treaty of
                    Amity.
                       First preliminary objection to jurisdiction: subject-matter of dispute — Question
                    whether dispute concerns interpretation and application of Treaty of Amity or
                    exclusively JCPOA — Subject‑matter of dispute to be determined by the Court on
                    objective basis — Particular account to be taken of facts identified by Applicant as
                    basis for its claim — Opposing views as to whether impugned measures constitute
                    violations of Treaty of Amity — Fact that dispute arose in context of decision of

                    5

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                    11 	                 1955 treaty of amity (judgment)

                    United States to withdraw from JCPOA does not preclude it from relating to
                    interpretation and application of Treaty of Amity — A dispute may relate to cer-
                    tain acts that fall within ambit of more than one instrument — The Court cannot
                    support argument that subject‑matter of Iran’s claims relates exclusively to
                    JCPOA and not to Treaty of Amity — First preliminary objection to jurisdiction
                    cannot be upheld.

                       Second preliminary objection to jurisdiction: “third country measures” — The
                    Court must ascertain whether acts of which Applicant complains fall within provi-
                    sions of treaty containing compromissory clause — “Third country measures”
                    objection does not concern all of Iran’s claims but only majority of them — Were
                    the Court to uphold second objection to jurisdiction the proceedings would not be
                    terminated — Disagreement between the Parties about relevance of concept of
                    “third country measures” — Disagreement between the Parties as regards territo-
                    rial scope and ambit of provisions of Treaty of Amity allegedly breached by
                    United States — Fact that some impugned measures directly targeted third States,
                    their nationals or companies, does not automatically exclude them from ambit of
                    Treaty of Amity — Second preliminary objection relates to the scope of certain
                    obligations relied upon by Applicant — Also raises legal and factual questions
                    which are properly a matter for the merits — Second preliminary objection to
                    jurisdiction cannot be upheld.

                                                            *
                       Admissibility.
                       Preliminary objection to admissibility of Iran’s Application: alleged abuse of
                    process — Claim based on valid title of jurisdiction can be rejected on ground of
                    abuse of process only in exceptional circumstances — No such exceptional circum-
                    stances in present case — Preliminary objection to admissibility rejected.

                                                            *
                      Objections on basis of Article XX, paragraph 1 (b) and (d), of Treaty of
                    Amity.
                      Article XX, paragraph 1 (b) and (d), of Treaty of Amity does not affect the
                    Court’s jurisdiction but affords a possible defence on the merits — Treaty of Amity
                    does not preclude application of measures “relating to fissionable materials”
                    under Article XX, paragraph 1 (b) — Similarly, it does not preclude application of
                    measures deemed necessary to protect a State’s “essential security interests”

                    under Article XX, paragraph 1 (d) — A decision concerning these matters requires
                    analysis of issues of law and fact that should be left to the merits — Arguments
                    based on these provisions cannot provide basis for preliminary objections but may
                    be presented at the merits stage — Preliminary objections based on Article XX,
                    paragraph 1 (b) and (d), of Treaty of Amity rejected.

                    6

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                     12 	                  1955 treaty of amity (judgment)

                                                       JUDGMENT

                     Present:
                              President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                              Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari,
                              Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judges ad hoc
                              Brower, Momtaz; Registrar Gautier.

                       In the case concerning alleged violations of the 1955 Treaty of Amity, Eco-
                     nomic Relations, and Consular Rights,
                         between
                     the Islamic Republic of Iran,
                     represented by
                       Mr. Hamidreza Oloumiyazdi, Head of the Centre for International Legal
                          Affairs of the Islamic Republic of Iran, Associate Professor of Private Law
                          at Allameh Tabataba’i University, Tehran,
                       as Agent and Advocate;
                       Mr. Mohammad H. Zahedin Labbaf, Agent of the Islamic Republic of Iran
                          to the Iran‑United States Claims Tribunal, Director of the Centre
                          for International Legal Affairs of the Islamic Republic of Iran in
                          The Hague,
                       as Co-Agent and Counsel;
                       Mr. Seyed Hossein Sadat Meidani, Legal Adviser of the Ministry of Foreign
                          Affairs of the Islamic Republic of Iran,
                       as Deputy Agent and Counsel;
                       Mr. Vaughan Lowe, QC, Emeritus Chichele Professor of Public International
                          Law, University of Oxford, member of the Institut de droit international,
                          Essex Court Chambers, member of the Bar of England and Wales,

                         Mr. Alain Pellet, Emeritus Professor at the University Paris Nanterre, former
                            Chairman of the International Law Commission, member of the Institut de
                            droit international,
                         Mr. Jean-Marc Thouvenin, Professor at the University Paris Nanterre,
                            Secretary‑General of the Hague Academy of International Law, associate
                             member of the Institut de droit international, member of the Paris Bar,
                             Sygna Partners,
                         Mr. Samuel Wordsworth, QC, Essex Court Chambers, member of the Bar of
                             England and Wales, member of the Paris Bar,
                         Mr. Hadi Azari, Legal Adviser to the Centre for International Legal Affairs
                             of the Islamic Republic of Iran, Assistant Professor of Public International
                             Law at Kharazmi University, Tehran,
                         as Counsel and Advocates;
                         Mr. Behzad Saberi Ansari, Director General for International Legal Affairs,
                             Ministry of Foreign Affairs of the Islamic Republic of Iran,

                         H.E. Mr. Alireza Kazemi Abadi, Ambassador Extraordinary and Plenipoten-
                           tiary of the Islamic Republic of Iran to the Kingdom of the Netherlands,

                     7

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                     13 	                  1955 treaty of amity (judgment)

                         Mr. Mohsen Izanloo, Deputy in Legal Affairs, Centre for International Legal
                            Affairs of the Islamic Republic of Iran, Associate Professor of Law at Uni-
                            versity of Tehran,
                         as Senior Legal Advisers;
                         Mr. Luke Vidal, member of the Paris Bar, Sygna Partners,
                         Mr. Sean Aughey, Essex Court Chambers, member of the Bar of England
                            and Wales,
                         Ms Philippa Webb, Professor at King’s College London, Twenty Essex
                            Chambers, member of the Bar of England and Wales, member of the Bar
                            of the State of New York,
                         Mr. Jean-Rémi de Maistre, PhD candidate, Centre de droit international de
                            Nanterre (CEDIN),
                         Mr. Romain Piéri, member of the Paris Bar, Sygna Partners,
                         as Counsel;
                         Mr. Seyed Mohammad Asbaghi Namini, Acting Director, Department of
                            International Claims, Centre for International Legal Affairs of the Islamic
                            Republic of Iran,
                         Mr. Mahdad Fallah Assadi, Legal Adviser to the Centre for International
                            Legal Affairs of the Islamic Republic of Iran,
                         Mr. Mohsen Sharifi, Acting Head, Department of Litigations and Private
                            International Law, Ministry of Foreign Affairs of the Islamic Republic of
                            Iran,
                         Mr. Yousef Nourikia, Second Counsellor, Embassy of the Islamic Republic
                            of Iran in the Netherlands,
                         Mr. Alireza Ranjbar, Legal Adviser to the Centre for International Legal
                            Affairs of the Islamic Republic of Iran,
                         Mr. Seyed Reza Rafiey, Legal Expert, Department of Litigations and Private
                            International Law, Ministry of Foreign Affairs of the Islamic Republic of
                            Iran,
                         Mr. Soheil Golchin, Legal Expert, Department of Litigations and Private
                            International Law, Ministry of Foreign Affairs of the Islamic Republic of
                            Iran,
                         Mr. Mahdi Khalili Torghabeh, Legal Expert, Ministry of Foreign Affairs of
                            the Islamic Republic of Iran,
                         as Legal Advisers,
                         and
                     the United States of America,
                     represented by
                       Mr. Marik A. String, Acting Legal Adviser, United States Department of
                          State,
                       as Agent, Counsel and Advocate (until 28 January 2021);
                       Mr. Richard C. Visek, Acting Legal Adviser, United States Department of
                          State,
                       as Agent (from 28 January 2021);
                       Mr. Steven F. Fabry, Deputy Legal Adviser, United States Department of
                          State,
                       as Co-Agent and Counsel;

                     8

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                     14 	                 1955 treaty of amity (judgment)

                         Mr. Paul B. Dean, Legal Counselor, Embassy of the United States of Amer-
                            ica in the Netherlands,
                         Ms Lara Berlin, Deputy Legal Counselor, Embassy of the United States of
                            America in the Netherlands,
                         as Deputy Agents and Counsel;
                         Sir Daniel Bethlehem, QC, Twenty Essex Chambers, member of the Bar of
                            England and Wales,
                         Ms Laurence Boisson de Chazournes, Professor of International Law at the
                            University of Geneva, member of the Institut de droit international,
                         Ms Kimberly A. Gahan, Assistant Legal Adviser, United States Department
                            of State,
                         Ms Lisa J. Grosh, Assistant Legal Adviser, United States Department of
                            State,
                         as Counsel and Advocates;
                         Mr. Donald Earl Childress III, Counselor on International Law, United States
                            Department of State,
                         Ms Maegan L. Conklin, Assistant Legal Adviser, United States Department
                            of State,
                         Mr. John D. Daley, Deputy Assistant Legal Adviser, United States Depart-
                            ment of State,
                         Mr. John I. Blanck, Attorney Adviser, United States Department of State,

                         Mr. Jonathan E. Davis, Attorney Adviser, United States Department of
                            State,
                         Mr. Joshua B. Gardner, Attorney Adviser, United States Department of
                            State,
                         Mr. Matthew S. Hackell, Attorney Adviser, United States Department of
                            State,
                         Mr. Nathaniel E. Jedrey, Attorney Adviser, United States Department of
                            State,
                         Mr. Robert L. Nightingale, Attorney Adviser, United States Department of
                            State,
                         Ms Catherine L. Peters, Attorney Adviser, United States Department of
                            State,
                         Mr. David B. Sullivan, Attorney Adviser, United States Department of
                            State,
                         Ms Margaret E. Sedgewick, Attorney Adviser, United States Department of
                            State,
                         as Counsel;
                         Mr. Guillaume Guez, Assistant, Faculty of Law of the University of Geneva,
                         Mr. John R. Calopietro, Paralegal Supervisor, United States Department of
                            State,
                         Ms Anjail B. Al-Uqdah, Paralegal, United States Department of State,

                         Ms Katherine L. Murphy, Paralegal, United States Department of State,

                         Ms Catherine I. Gardner, Administrative Assistant, Embassy of the
                            United States of America in the Netherlands,
                         as Assistants,

                     9

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                     15 	                    1955 treaty of amity (judgment)

                       The Court,
                       composed as above,
                       after deliberation,
                       delivers the following Judgment:

                          1. On 16 July 2018, the Islamic Republic of Iran (hereinafter “Iran”) filed in
                     the Registry of the Court an Application instituting proceedings against the
                     United States of America (hereinafter the “United States”) with regard to
                     alleged violations of the Treaty of Amity, Economic Relations, and Consular
                     Rights, which was signed by the two States in Tehran on 15 August 1955 and
                     entered into force on 16 June 1957 (hereinafter the “Treaty of Amity” or the
                     “1955 Treaty”).
                          2. In its Application, Iran seeks to found the Court’s jurisdiction on Arti-
                      cle 36, paragraph 1, of the Statute of the Court and on Article XXI, para-
                      graph 2, of the 1955 Treaty.
                          3. On 16 July 2018, Iran also submitted a Request for the indication of pro-
                      visional measures, referring to Article 41 of the Statute and to Articles 73,
                      74 and 75 of the Rules of Court.
                          4. The Registrar immediately communicated to the Government of the
                      United States the Application, in accordance with Article 40, paragraph 2, of
                      the Statute of the Court, and the Request for the indication of provisional mea-
                      sures, in accordance with Article 73, paragraph 2, of the Rules of Court. He also
                      notified the Secretary‑General of the United Nations of the filing of the Applica-
                      tion and the Request for the indication of provisional measures by Iran.
                          5. In addition, by a letter dated 25 July 2018, the Registrar informed all
                      Member States of the United Nations of the filing of the above‑mentioned
                      Application and Request for the indication of provisional measures.
                          6. Pursuant to Article 40, paragraph 3, of the Statute, the Registrar notified
                      the Member States of the United Nations, through the Secretary‑General,
                      and any other State which is entitled to appear before the Court, of the filing
                      of the Application, by transmission of the printed bilingual text of that docu-
                      ment.
                          7. On 18 July 2018, the Registrar informed both Parties that the Member of
                      the Court of the nationality of the United States, pursuant to Article 24, para-
                      graph 1, of the Statute, had notified the President of the Court of her intention
                      not to participate in the decision of the case. In accordance with Article 31 of
                      the Statute and Article 37, paragraph 1, of the Rules of Court, the United States
                      chose Mr. Charles Brower to sit as judge ad hoc in the case.
                          8. Since the Court included upon the Bench no judge of Iranian nationality,
                      Iran proceeded to exercise the right conferred upon it by Article 31 of the
                      Statute to choose a judge ad hoc to sit in the case ; it chose Mr. Djamchid
                     Momtaz.
                          9. On 23 July 2018, the President of the Court, acting in conformity with
                      Article 74, paragraph 4, of the Rules of Court, addressed an urgent communica-
                       tion to the Secretary of State of the United States, calling upon the Government
                       of the United States “to act in such a way as will enable any order the Court
                       may make on the request for provisional measures to have its appropriate
                       effects”. A copy of that letter was transmitted to the Agent of Iran.

                     10

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                     16 	                  1955 treaty of amity (judgment)

                       10. By an Order of 3 October 2018, the Court, having heard the Parties, indi-
                     cated the following provisional measures :
                          “(1) The United States of America, in accordance with its obligations under
                               the 1955 Treaty of Amity, Economic Relations, and Consular Rights,
                               shall 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
                                 (i) medicines and medical devices;
                                (ii) foodstuffs and agricultural commodities; and
                               (iii) spare parts, equipment and associated services (including warranty,
                                     maintenance, repair services and inspections) necessary for the
                                     safety of civil aviation;
                           (2) The United States of America shall ensure that licences and necessary
                               authorizations are granted and that payments and other transfers of
                               funds are not subject to any restriction in so far as they relate to the
                               goods and services referred to in point (1);
                           (3) Both Parties shall refrain from any action which might aggravate or
                               extend the dispute before the Court or make it more difficult to resolve.”
                               (I.C.J. Reports 2018 (II), p. 652, para. 102.)
                        11. By an Order dated 10 October 2018, the Court fixed 10 April 2019 and
                     10 October 2019, as the respective time‑limits for the filing of a Memorial by
                     Iran and a Counter‑Memorial by the United States.
                        12. In a letter dated 19 February 2019, Iran requested the Court to “exercise
                     its authority, under Article 78 of the Rules, to call on the USA to explain, as a
                     matter of urgency, the specific steps that have been and are being taken to
                     implement the Court’s Order of 3 October 2018”.

                        13. Following this communication, the Court requested the United States to
                     provide, by 4 June 2019, information on its implementation of the provisional
                     measures indicated by the Court in its Order of 3 October 2018 and Iran to
                     furnish, by the same date, any information it might have in that regard. This
                     information was submitted by both Parties within the time‑limit fixed for that
                     purpose. By letters dated 19 June 2019, the Parties were informed that the Court
                     had taken due note of the responses provided by them, and that it considered
                     that any issues relating to the implementation of the provisional measures may
                     be addressed at a later stage, if the case proceeded to the merits.

                        14. By a letter dated 1 April 2019, the Co‑Agent of Iran requested the Court
                     to extend the time‑limit for the filing of the Memorial by one and a half months,
                     and indicated the reasons for that request. On receipt of that letter, the Deputy‑
                     Registrar, referring to Article 44, paragraph 3, of the Rules of Court, t ransmitted
                     a copy thereof to the Agent of the United States. By a letter dated 5 April 2019,
                     the Agent of the United States indicated that her Government had no objection
                     to the extension of the time‑limit requested by Iran.
                        15. By an Order dated 8 April 2019, the President of the Court extended to
                     24 May 2019 and 10 January 2020, the respective time‑limits for the filing of the
                     Memorial by Iran and a Counter‑Memorial by the United States. The Memorial
                     of Iran was filed within the time‑limit thus extended.
                        16. On 23 August 2019, within the time‑limit prescribed by Article 79, para-
                     graph 1, of the Rules of Court of 14 April 1978 as amended on 1 February 2001,

                     11

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                     17 	                 1955 treaty of amity (judgment)

                     the United States raised certain preliminary objections (see paragraph 38 below).
                     Consequently, by an Order of 26 August 2019, the President of the Court,
                     noting that, by virtue of Article 79, paragraph 5, of the Rules, the proceedings
                      on the merits were suspended, fixed 23 December 2019 as the time‑limit within
                      which Iran could present a written statement of its observations and submis-
                      sions on the preliminary objections raised by the United States. Iran filed its
                      written statement within the time‑limit so prescribed and the case became ready
                      for hearing with respect to the preliminary objections.
                         17. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
                      after ascertaining the views of the Parties, decided that copies of the written
                      pleadings and documents annexed thereto would be made accessible to the pub-
                      lic on the opening of the oral proceedings.
                         18. Public hearings on the preliminary objections raised by the United States
                      were held by video link from 14 to 21 September 2020, at which the Court heard
                      the oral arguments and replies of :
                     For the United States: Mr. Marik A. String,
                                             Sir Daniel Bethlehem,
                                             Ms Lisa J. Grosh,
                                             Ms Kimberly A. Gahan,
                                             Ms Laurence Boisson de Chazournes.
                     For Iran:	Mr. Hamidreza Oloumiyazdi,
                                             Mr. Vaughan Lowe,
                                             Mr. Samuel Wordsworth,
                                             Mr. Jean-Marc Thouvenin,
                                             Mr. Alain Pellet.

                                                              *
                       19. In the Application, the following claims were made by Iran :
                            “Iran respectfully requests the Court to adjudge, order and declare that:
                          (a) The USA, through the 8 May and announced further sanctions referred
                              to in the present Application, with respect to Iran, Iranian nationals
                              and companies, has breached its obligations to Iran under Arti-
                              cles IV (1), VII (1), VIII (1), VIII (2), IX (2) and X (1) of the Treaty of
                              Amity;

                          (b) The USA shall, by means of its own choosing, terminate the 8 May
                              sanctions without delay;
                          (c) The USA shall immediately terminate its threats with respect to the
                              announced further sanctions referred to in the present Application;

                          (d) The USA shall ensure that no steps shall be taken to circumvent
                              the decision to be given by the Court in the present case and will give
                              a guarantee of non‑repetition of its violations of the Treaty of Amity;
                          (e) The USA shall fully compensate Iran for the violation of its interna-
                              tional legal obligations in an amount to be determined by the Court at
                              a subsequent stage of the proceedings. Iran reserves the right to submit
                              and present to the Court in due course a precise evaluation of the com-
                              pensation owed by the USA.”

                     12

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                     18 	                 1955 treaty of amity (judgment)

                       20. In the written proceedings on the merits, the following submissions were
                     presented on behalf of the Government of Iran in its Memorial :

                            “Iran respectfully requests the Court to adjudge, order and declare that:
                          (a) The United States, through the measures that were implemented pur-
                              suant to or in connection with the U.S. Presidential Memorandum of
                              8 May 2018 and announced further measures, with respect to Iran,
                              Iranian nationals and companies, has breached its obligations to Iran
                              under Articles IV (1), IV (2), V (1), VII (1), VIII (1), VIII (2), IX (2),
                              IX (3) and X (1) of the Treaty of Amity;

                          (b) The United States shall, by means of its own choosing, terminate the
                              measures that were implemented pursuant to or in connection with the
                              U.S. Presidential Memorandum of 8 May 2018 and announced further
                              measures without delay;
                          (c) The United States shall immediately terminate its threats with respect
                              to announced further sanctions;
                          (d) The United States shall ensure that no steps shall be taken to circumvent
                              the decision to be given by the Court in the present case and will give a
                              guarantee of non‑repetition of its violations of the Treaty of Amity;
                          (e) The United States shall fully compensate Iran for the violation of its
                              international legal obligations in an amount to be determined by the
                              Court at a subsequent stage of the proceedings. Iran reserves the right
                              to submit and present to the Court in due course a precise evaluation
                              of the compensation owed by the United States.”

                       21. In the preliminary objections, the following submissions were presented
                     on behalf of the Government of the United States :

                            “[T]he United States requests that the Court:
                          (a) Dismiss Iran’s claims in their entirety as outside the Court’s jurisdic-
                              tion.
                          (b) Dismiss Iran’s claims in their entirety as inadmissible.

                          (c) Dismiss Iran’s claims in their entirety as precluded by Article XX,
                              paragraph 1 (b) of the Treaty of Amity.
                          (d) Dismiss Iran’s claims in their entirety as precluded by Article XX,
                               paragraph 1 (d) of the Treaty of Amity.
                          (e) Dismiss as outside the Court’s jurisdiction all claims, brought under
                                any provision of the Treaty of Amity, that are predicated on third
                                country measures.”

                        22. In the written statement of its observations and submissions on the pre-
                     liminary objections, the following submissions were presented on behalf of the
                     Government of Iran :
                            “Iran respectfully requests that the Court:
                          (a) reject and dismiss the Preliminary Objections of the United States of
                              America; and
                          (b) adjudge and declare:

                     13

5 Ord_1215.indb 22                                                                                20/05/22 13:08

                     19 	                 1955 treaty of amity (judgment)

                                (i) that the Court has jurisdiction over the entirety of the claims pre-
                                    sented by Iran; and
                               (ii) that Iran’s claims are admissible.”
                       23. At the oral proceedings on the preliminary objections, the following sub-
                     missions were presented by the Parties :
                     On behalf of the Government of the United States,
                     at the hearing of 18 September 2020:
                            “For the reasons explained during these hearings and any other reasons
                          the Court might deem appropriate, the United States of America requests
                          that the Court uphold the U.S. preliminary objections set forth in its written
                          submission and at this hearing and decline to entertain the case. Specifically,
                          the United States of America requests that the Court:
                          (a) Dismiss Iran’s claims in their entirety as outside the Court’s jurisdic-
                               tion.
                          (b) Dismiss Iran’s claims in their entirety as inadmissible.

                          (c) Dismiss Iran’s claims in their entirety as precluded by Article XX, para
                              graph 1 (b) of the Treaty of Amity.
                          (d) Dismiss Iran’s claims in their entirety as precluded by Article XX, para
                              graph 1 (d) of the Treaty of Amity.
                          (e) Dismiss as outside the Court’s jurisdiction all claims, brought under
                              any provision of the Treaty of Amity, that are predicated on third
                              country measures.”
                     On behalf of the Government of Iran,
                     at the hearing of 21 September 2020:
                            “The Islamic Republic of Iran respectfully requests that the Court:
                          (a) reject and dismiss the Preliminary Objections of the United States of
                              America; and
                          (b) adjudge and declare:
                                (i) that the Court has jurisdiction over the entirety of the claims pre-
                                    sented by Iran; and
                               (ii) that Iran’s claims are admissible.”

                                                                *
                                                            *       *

                                               I. Factual Background
                       24. In the present proceedings, Iran alleges violations by the
                     United States of the Treaty of Amity, which was signed by the Parties on
                     15 August 1955 and entered into force on 16 June 1957 (see paragraph 1
                     above). It is not disputed by the Parties that on the date of the filing of
                     the Application, namely, on 16 July 2018, the Treaty of Amity was in
                     force. In accordance with Article XXIII, paragraph 3, of the Treaty of
                     Amity, “[e]ither High Contracting Party may, by giving one year’s written
                     notice to the other High Contracting Party, terminate the present Treaty

                     14

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                     20 	                1955 treaty of amity (judgment)

                     at the end of the initial ten-year period or at any time thereafter”. By a
                     diplomatic Note dated 3 October 2018 addressed by the United States
                     Department of State to the Ministry of Foreign Affairs of Iran, the
                     United States, in accordance with Article XXIII, paragraph 3, of the
                     Treaty of Amity, gave “notice of the termination of the Treaty”.
                        25. As regards the events forming the factual background of the case,
                     the Court recalls that Iran is a party to the Treaty on the Non‑Prolifer
                     ation of Nuclear Weapons of 1 July 1968. According to Article III of this
                     Treaty, each non‑nuclear-weapon State party undertakes to accept safe-
                     guards, as set forth in an agreement to be negotiated and concluded with
                     the International Atomic Energy Agency (hereinafter the “IAEA” or
                     “Agency”), for the exclusive purpose of verification of the fulfilment of its
                     obligations assumed under the Treaty “with a view to preventing diver-
                     sion of nuclear energy from peaceful uses to nuclear weapons or other
                     nuclear explosive devices”. The Agreement between Iran and the Agency
                     for the Application of Safeguards in Connection with the Treaty on the
                     Non‑Proliferation of Nuclear Weapons has been in force since 15 May
                     1974. In a report dated 6 June 2003, the IAEA Director General stated
                     that Iran had “failed to meet its obligations under its Safeguards Agree-
                     ment with respect to the reporting of nuclear material, the subsequent
                     processing and use of that material and the declaration of facilities where
                     the material was stored and processed”. In its resolution GOV/2006/14 of
                     4 February 2006, the Agency’s Board of Governors recalled

                          “Iran’s many failures and breaches of its obligations to comply with
                          its NPT Safeguards Agreement and the absence of confidence that
                          Iran’s nuclear programme is exclusively for peaceful purposes
                          resulting from the history of concealment of Iran’s nuclear activities,
                           the nature of those activities and other issues arising from the
                           Agency’s verification of declarations made by Iran since Septem-
                            ber 2002”
                     and requested the Director General to report the matter to the Security
                     Council of the United Nations.
                        26. On 29 March 2006, the President of the Security Council made a
                     statement on behalf of the Council in which he referred to the Security
                     Council’s serious concern regarding “Iran’s decision to resume enrichment-
                     related activities, including research and development”. He further noted
                     that the Security Council underlined “the particular importance of
                     re‑establishing full and sustained suspension” of these activities, “to be
                     verified by the IAEA”.
                        27. On 31 July 2006, the Security Council, acting under Article 40 of
                     Chapter VII of the Charter of the United Nations, adopted resolu-
                     tion 1696 (2006), in which it noted, with serious concern, Iran’s decision
                     “to resume enrichment‑related activities” and demanded “in this context,
                     that Iran shall suspend all enrichment‑related and reprocessing activities,
                     including research and development, to be verified by the IAEA”. The

                     15

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                     21 	               1955 treaty of amity (judgment)

                     Security Council further expressed its intention, in the event of non‑
                     compliance by Iran, to adopt appropriate measures under Article 41 of
                     Chapter VII of the Charter of the United Nations, “to persuade Iran to
                     comply with [the] resolution and the requirements of the IAEA”.

                         28. On 23 December 2006, the Security Council, acting under
                      rticle 41 of Chapter VII of the Charter of the United Nations, adopted
                     A
                     resolution 1737 (2006), in which it noted, with serious concern, inter alia,
                     that Iran had not established “full and sustained suspension of all
                     enrichment‑related and reprocessing activities as set out in resolution 1696
                      (2006)”. The Security Council expressed its determination “to give effect
                      to its decisions by adopting appropriate measures to persuade Iran to
                      comply with resolution 1696 (2006) and with the requirements of the
                      IAEA, and also to constrain Iran’s development of sensitive technologies
                      in support of its nuclear and missile programmes”. Thus, in resolu-
                      tion 1737 (2006), the Security Council decided that Iran must suspend
                     “all enrichment-related and reprocessing activities, including research and
                     development, to be verified by the IAEA”, as well as “work on all heavy
                     water‑related projects, including the construction of a research reactor
                     moderated by heavy water, also to be verified by the IAEA”. It further
                     decided that all States must take the necessary measures to prevent the
                     supply, sale or transfer of all items, materials, equipment, goods and
                     technology which could contribute to Iran’s nuclear‑related activities.

                     Subsequently, the Security Council adopted further resolutions on the
                     Iranian nuclear issue, namely, resolutions 1747 (2007), 1803 (2008),
                     1835 (2008), 1929 (2010) and 2224 (2015).

                       29. On 26 July 2010, the Council of the European Union adopted
                     Decision 2010/413/CFSP and, on 23 March 2012, Regulation No. 267/2012
                     concerning nuclear‑related “restrictive measures against Iran”, banning
                     arms exports, restricting financial transactions, imposing the freezing of
                     assets and restricting travel for certain individuals.

                        30. The United States, by Executive Orders 13574 of 23 May 2011,
                     13590 of 21 November 2011, 13622 of 30 July 2012, 13628 of 9 October
                     2012 (Sections 5 to 7, and 15) and 13645 of 3 June 2013, imposed a number
                     of nuclear-related “additional sanctions” with regard to various sectors
                     of Iran’s economy.
                        31. On 14 July 2015, China, France, Germany, the Russian Federa-
                     tion, the United Kingdom and the United States, with the High Repre-
                     sentative of the European Union for Foreign Affairs and Security Policy,
                     and Iran concluded the Joint Comprehensive Plan of Action (hereinafter
                     the “JCPOA”) concerning the nuclear programme of Iran. The declared
                     purpose of that instrument was to ensure the exclusively peaceful nature
                     of Iran’s nuclear programme and to produce “the comprehensive lifting
                     of all UN Security Council sanctions as well as multilateral and national
                     sanctions related to Iran’s nuclear programme”.

                     16

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                        32. On 20 July 2015, the Security Council adopted resolution 2231
                     (2015), whereby it endorsed the JCPOA and urged its “full implementa-
                     tion on the timetable established [therein]”. In the same resolution, the
                     Security Council provided, in particular, for the termination under cer-
                     tain conditions of provisions of previous Security Council resolutions on
                     the Iranian nuclear issue and set out measures of implementation of the
                     JCPOA. Annex A to Security Council resolution 2231 (2015) reproduced
                     the text of the JCPOA.
                        33. The JCPOA describes, in particular, the steps to be taken by Iran
                     within a set time frame, regarding agreed limitations on all uranium
                     enrichment and uranium enrichment‑related activities and addresses the
                     co‑operation of Iran with the IAEA. It provides for the termination of all
                     sanctions adopted by the Security Council and the European Union,
                     respectively, as well as the cessation of the implementation of certain
                     United States sanctions (as described in Annex II to the JCPOA) con-
                     cerning, in particular, the financial and banking system, investments, the
                     petrochemical industry, the energy, shipping, shipbuilding and auto
                     motive sectors, and trade in commodities. Finally, the JCPOA contains
                     an “Implementation Plan” as well as provisions regarding the resolution
                     of disputes. These provisions establish a procedure to be used, should one
                     of the participants complain that another participant is not meeting its
                     commitments under the JCPOA.

                         34. On 16 January 2016, the President of the United States issued
                     Executive Order 13716 revoking or amending a certain number of earlier
                     Executive Orders on “nuclear-     related sanctions” imposed on Iran or
                     Iranian nationals.
                         35. On 8 May 2018, the President of the United States issued a National
                      Security Presidential Memorandum announcing the end of the participa-
                      tion of the United States in the JCPOA and directing the reimposition of
                      “sanctions lifted or waived in connection with the JCPOA”. In the Mem-
                      orandum, the President of the United States indicated that Iranian or
                      Iran‑backed forces were engaging in military activities in the surrounding
                      region and that Iran remained a State sponsor of terrorism. He further
                      stated that Iran had publicly declared that it would deny the IAEA access
                      to military sites and that, in 2016, Iran had twice violated the JCPOA’s
                      heavy‑water stockpile limits. The Presidential Memorandum determined
                      that it was in the national interest of the United States to reimpose sanc-
                      tions “as expeditiously as possible”, and “in no case later than 180 days”
                      from the date of the Memorandum.

                        36. Simultaneously, the United States Department of the Treasury’s
                     Office of Foreign Assets Control announced that “sanctions” would be
                     reimposed in two steps. Upon expiry of a period of 90 days, the
                     United States would reimpose a certain number of measures concerning,
                     in particular, financial transactions, trade in metals, the importation of
                     Iranian‑origin carpets and foodstuffs, and the export to Iran of commer-

                     17

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                     23 	               1955 treaty of amity (judgment)

                     cial passenger aircraft and related parts. Upon expiry of a period of
                     180 days, the United States would reimpose additional measures.

                        37. On 6 August 2018, the President of the United States issued Execu-
                     tive Order 13846 reimposing “certain sanctions” on Iran, its nationals
                     and companies. Earlier Executive Orders implementing the commitments
                     of the United States under the JCPOA were revoked.

                                                          *
                        38. The United States has raised five preliminary objections. The first
                     two relate to the jurisdiction of the Court ratione materiae to entertain the
                     case on the basis of Article XXI, paragraph 2, of the Treaty of Amity.
                     The third contests the admissibility of Iran’s Application by reason of an
                     alleged abuse of process and on grounds of judicial propriety. The last
                     two are based on subparagraphs (b) and (d) of Article XX, paragraph 1,
                     of the Treaty of Amity. Although, according to the Respondent, they
                     relate neither to the jurisdiction of the Court nor to the admissibility of
                     the Application, the Respondent requests a decision upon them before
                     any further proceedings on the merits.
                        The Court will begin by considering issues related to its jurisdiction.

                            II. Jurisdiction of the Court Ratione Materiae under
                                       Article XXI of the Treaty of Amity

                       39. The United States contests the Court’s jurisdiction to entertain the
                     Application of Iran. It submits that the dispute before the Court falls
                     outside the scope ratione materiae of Article XXI, paragraph 2, of the
                     Treaty of Amity, the basis of jurisdiction invoked by Iran, which provides
                     that:
                            “Any dispute between the High Contracting Parties as to the inter-
                          pretation or application of the present Treaty, not satisfactorily
                          adjusted by diplomacy, shall be submitted to the International Court
                          of Justice, unless the High Contracting Parties agree to settlement by
                          some other pacific means.”

                       40. According to the Respondent, the dispute which Iran seeks to bring
                     before the Court falls outside the scope of the above-mentioned compro-
                     missory clause for two reasons which, in its view, are alternative in nature.
                       First, the United States contends that “the true subject matter of this
                     case is a dispute as to the application of the JCPOA, an instrument
                     entirely distinct from the Treaty of Amity, with no relationship thereto”.

                     18

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                     24 	               1955 treaty of amity (judgment)

                     Therefore, in the Respondent’s view, the subject‑matter of the dispute
                     which Iran seeks to have settled by the Court is not “the interpretation or
                     application of the . . . Treaty” within the meaning of the second para-
                     graph of Article XXI, as cited above.
                        Secondly, the United States argues that the vast majority of the mea-
                     sures challenged by Iran fall outside the scope ratione materiae of the
                     Treaty of Amity, because they principally concern trade and transactions
                     between Iran and third countries, or their companies and nationals,
                     and not between Iran and the United States, or their companies and
                     nationals.
                        41. The Court will begin by examining the first of these two objections,
                     which, if well founded, would cause all of Iran’s claims to be excluded
                     from the Court’s jurisdiction ; then, if necessary, it will consider the sec-
                     ond objection, which concerns only the majority, and not the entirety, of
                     the claims at issue.

                                   1. First Preliminary Objection to Jurisdiction:
                                         The Subject-Matter of the Dispute
                        42. According to the United States, the dispute that Iran seeks to bring
                     before the Court has arisen out of the United States’ decision of 8 May
                     2018 to cease participation in the JCPOA and thereby to reimpose the
                     sanctions that it had lifted under that instrument. The United States
                     maintains that, by its Application, Iran in fact seeks the restoration of the
                     sanctions relief provided by the United States when it was a participant in
                     the JCPOA. The dispute thus exclusively pertains to the United States’
                     decisions relating to the JCPOA; the case is inextricably bound up in the
                     latter and has no real relationship to the Treaty of Amity.

                        43. The United States contends that the foregoing is evidenced by the
                     text of the diplomatic Note of 11 June 2018, by which Iran claims to have
                     notified the United States of the existence of the dispute now before the
                     Court. The United States observes that, in that Note, Iran complains of
                     the “unlawful decision of the Government of the United States, made on
                     8 May 2018, ‘to re‑impose the United States sanctions lifted or waived in
                     connection with the JCPOA’”, without even mentioning the Treaty of
                     Amity. According to the United States, a second Note from Iran, dated
                     19 June 2018, also focuses exclusively on the United States’ decision to
                     cease participation in the JCPOA and to reimpose the previously lifted
                     sanctions.
                        44. The United States notes that Iran brought its claims regarding the
                     alleged wrongfulness, under the Treaty of Amity, of the measures that it
                     is challenging only when these were reinstated as a result of the
                     United States’ withdrawal from the JCPOA, even though the measures in
                     question had been in force prior to the adoption of the JCPOA — in
                     some cases for decades — without Iran invoking the Treaty of Amity to
                     challenge their imposition.

                     19

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                     25 	                1955 treaty of amity (judgment)

                       45. Equally telling, in the United States’ view, is the fact that Iran is
                     challenging before the Court only the reimposition of the sanctions that
                     had been lifted under the JCPOA. The Respondent points out that the
                     JCPOA provided for the suspension or removal only of “multilateral and
                     national sanctions related to Iran’s nuclear programme”, and that, as a
                     result, the other measures aimed at Iran which had been put in place by
                     the United States before the adoption of the JCPOA continued to apply
                     during the period in which the latter was implemented.

                        46. All the foregoing demonstrates, in the view of the Respondent, that
                     the true subject‑matter of the dispute relates exclusively to the JCPOA.
                     According to the United States, the JCPOA is a multilateral political
                     arrangement which does not create legally binding obligations. Moreover,
                     it does not contain any clause giving the Court jurisdiction to entertain a
                     dispute arising between two or more JCPOA participants.

                                                           *
                          47. Iran rejects the arguments raised by the United States in support of
                     the first preliminary objection to jurisdiction. It asserts that the
                     subject‑matter of the dispute that it has submitted to the Court is indeed
                      the interpretation and application of the Treaty of Amity, and that the
                      dispute thus falls squarely within the scope of the Treaty’s compromis-
                      sory clause.
                          48. According to Iran, its Application wholly and exclusively concerns
                      violations of the Treaty of Amity. The measures that it challenges consti-
                      tute violations of the Treaty of Amity, whether or not they are also asso-
                      ciated with, or adopted against the background of, the JCPOA. The
                      question is simply whether, as the Applicant maintains, those measures
                      are inconsistent with the Treaty, without there being any need to deter-
                      mine whether or not they also breach the JCPOA.
                          49. Iran adds that the fact that the JCPOA makes no reference to the
                      settlement of disputes by the Court is irrelevant, given that the
                      subject‑matter of the dispute now before the Court is compliance with
                       the Treaty of Amity, not the JCPOA. Although the JCPOA does in fact
                       contain a specific dispute settlement mechanism, nothing suggests that
                       this mechanism might have the effect of removing from the jurisdiction of
                       the Court any dispute relating to measures which, while falling within
                       the scope of a clause conferring jurisdiction on the Court, might also be
                       relevant to the JCPOA.
                          50. Finally, in response to the United States’ argument that Iran did
                       not challenge the imposition of the disputed measures before the JCPOA
                       was adopted or during the negotiation leading up to its adoption, the
                       Applicant replies that it did in fact protest against the United States’ mea-
                       sures, which it considers to be contrary to international law. It adds that
                       it is for each State to determine at what point the circumstances warrant
                       pursuing its rights through judicial means rather than continuing only to

                     20

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                     26 	                1955 treaty of amity (judgment)

                     seek a diplomatic settlement, which is what the Applicant has done in this
                     instance by deciding to bring the present dispute before the Court.

                                                           * *
                       51. The Court notes that the Parties do not contest that there is a dis-
                     pute between them, but they disagree as to whether this dispute concerns
                     the interpretation and application of the Treaty of Amity, as Iran claims,
                     or exclusively the JCPOA, as the United States contends. In the latter
                     case, the dispute would fall outside the scope ratione materiae of the com-
                     promissory clause of the Treaty of Amity.

                       52. As the Court has consistently recalled, while it is true that, in
                     accordance with Article 40, paragraph 1, of the Statute, the applicant
                     must indicate to the Court what it considers to be the “subject of the dis-
                     pute”, it is for the Court to determine, taking account of the parties’ sub-
                     missions, the subject‑matter of the dispute of which it is seised (see
                     Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judg-
                     ment, I.C.J. Reports 1998, pp. 447‑449, paras. 29‑32). As it stated in the
                     Nuclear Tests cases :
                             “[I]t is the Court’s duty to isolate the real issue in the case and to
                          identify the object of the claim. It has never been contested that the
                          Court is entitled to interpret the submissions of the parties, and in
                          fact is bound to do so; this is one of the attributes of its judicial func-
                          tions.” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
                          1974, p. 262, para. 29; Nuclear Tests (New Zealand v. France), Judg-
                          ment, I.C.J. Reports 1974, p. 466, para. 30.)
                        53. The Court’s determination of the subject-matter of the dispute is
                     made “on an objective basis” (Obligation to Negotiate Access to the
                     Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
                     I.C.J. Reports 2015 (II), p. 602, para. 26), “while giving particular atten-
                     tion to the formulation of the dispute chosen by the Applicant” (Fisheries
                     Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
                     I.C.J. Reports 1998, p. 448, para. 30). To identify the subject‑matter of
                     the dispute, the Court bases itself on the application, as well as on the
                     written and oral pleadings of the parties. In particular, it takes account of
                     the facts that the applicant identifies as the basis for its claim (Obligation
                     to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary
                     Objection, Judgment, I.C.J. Reports 2015 (II), pp. 602‑603, para. 26).
                        54. In the present case, according to the submissions presented in its
                     Application and its Memorial, Iran essentially seeks to have the Court
                     declare that the measures reimposed pursuant to the United States’
                     decision expressed in the Presidential Memorandum of 8 May 2018 are
                      in breach of various obligations of the United States under the Treaty
                      of Amity, and consequently to have the situation prior to that decision
                      restored. The United States contests that the impugned measures

                     21

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                     27 	                1955 treaty of amity (judgment)

                     c onstitute violations of the Treaty of Amity. Hence there exists an oppo-
                      sition of views which amounts to a dispute relating to the Treaty of
                      Amity.
                         55. It is true that this dispute arose in a particular political context,
                      that of the United States’ decision to withdraw from the JCPOA. How-
                      ever, as the Court has had occasion to observe :
                             “[L]egal disputes between sovereign States by their very nature are
                          likely to occur in political contexts, and often form only one element
                          in a wider and longstanding political dispute between the States con-
                          cerned. Yet never has the view been put forward before that, because
                          a legal dispute submitted to the Court is only one aspect of a political
                          dispute, the Court should decline to resolve for the parties the legal
                          questions at issue between them.” (United States Diplomatic and Con-
                          sular Staff in Tehran (United States of America v. Iran), Judgment,
                          I.C.J. Reports 1980, p. 20, para. 37.)

                        56. The fact that the dispute between the Parties has arisen in connec-
                     tion with and in the context of the decision of the United States to with-
                     draw from the JCPOA does not in itself preclude the dispute from relating
                     to the interpretation or application of the Treaty of Amity (cf. Oil Plat-
                     forms (Islamic Republic of Iran v. United States of America), Preliminary
                     Objection, Judgment, I.C.J. Reports 1996 (II), pp. 811‑812, para. 21).
                     Certain acts may fall within the ambit of more than one instrument and a
                     dispute relating to those acts may relate to the “interpretation or applica-
                     tion” of more than one treaty or other instrument. To the extent that the
                     measures adopted by the United States following its decision to withdraw
                     from the JCPOA might constitute breaches of certain obligations under
                     the Treaty of Amity, those measures relate to the interpretation or appli-
                     cation of that Treaty.
                        57. Even if it were true, as the Respondent contends, that a judgment
                     of the Court upholding Iran’s claims under the Treaty of Amity would
                     result in the restoration of the situation which existed when the
                     United States was still participating in the JCPOA, it nonetheless would
                     not follow that the dispute brought before the Court by Iran concerns the
                     JCPOA and not the Treaty of Amity.
                        58. The Court notes that the United States has made clear that it does
                     not assert that the existence of a connection between the dispute and its
                     decision to withdraw from the JCPOA suffices in itself to preclude the
                     Court from finding that it has jurisdiction over Iran’s claims under
                     the Treaty of Amity, or that jurisdiction under the Treaty is precluded
                     solely because the dispute is part of a broader context that includes the
                     JCPOA.
                        59. The Respondent’s argument is that the very subject-       matter of
                     Iran’s claims in this case relates exclusively to the JCPOA, and not to the
                     Treaty of Amity. The Court does not see how it could support such an
                     analysis without misrepresenting Iran’s claims as formulated by the

                     22

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                     28 	               1955 treaty of amity (judgment)

                     Applicant. The Court’s “duty to isolate the real issue in the case and to
                     identify the object of the claim” (see paragraph 52 above) does not permit
                     it to modify the object of the submissions, especially when they have been
                     clearly and precisely formulated. In particular, the Court cannot infer the
                     subject‑matter of a dispute from the political context in which the pro-
                     ceedings have been instituted, rather than basing itself on what the appli-
                     cant has requested of it.
                        60. For the reasons set out above, the Court cannot uphold the first
                     preliminary objection to jurisdiction raised by the United States.

                                  2. Second Preliminary Objection to Jurisdiction:
                                            “Third Country Measures”
                        61. The United States contends that, even if the actual subject‑matter
                     of the dispute were the application of the Treaty of Amity and not of the
                     JCPOA, the Court would lack jurisdiction to entertain the vast majority
                     of Iran’s claims, as those claims relate to measures which principally con-
                     cern trade or transactions between Iran and third countries, or between
                     their nationals and companies. According to the Respondent, the Treaty
                     of Amity is applicable only to trade between the two States parties, or
                     their nationals and companies, and not to trade between one of them and
                     a third country, or their nationals and companies.
                        62. According to the United States, the vast majority of the measures
                     implemented or reinstated under the Memorandum of 8 May 2018 con-
                     cern the trade or transactions of Iran (or its companies and nationals)
                     with third countries (or their companies and nationals). Indeed, the mea-
                     sures aimed directly at “U.S. persons” (within the specific meaning
                     in which this category of person is defined by the JCPOA), seeking to
                     prohibit such persons from carrying out certain operations with Iran or
                     Iranian entities, had not been lifted by the JCPOA ; they were therefore
                     not reinstated by the Memorandum of 8 May 2018 and its implementing
                     measures. Consequently, according to the United States, since Iran is
                     only challenging before the Court the lawfulness of the “8 May measures”
                     under the Treaty of Amity, it is thus complaining of measures of which
                     the vast majority do not affect the commercial or financial relations
                     between the United States and Iran, but between Iran and third countries,
                     or between their companies and nationals. According to the Respondent,
                     such measures, which it characterizes as “third country measures”, fall
                     outside the scope of the Treaty of Amity.

                        63. More specifically, the United States explains that the disputed mea-
                     sures can be divided into four categories, according to their purpose:
                     (i) the reimposition of certain sanctions provisions under United States
                     statutes that had been waived pursuant to the JCPOA; (ii) the reinstate-
                     ment, through issuance of Executive Order 13846, of certain sanctions
                     authorities that were previously terminated; (iii) the relisting of certain
                     persons on the Department of the Treasury’s Specially Designated

                     23

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                     29 	               1955 treaty of amity (judgment)

                     Nationals and Blocked Persons List or SDN List (which identifies natural
                     or legal persons from specially designated countries or subject to a block
                     on assets) ; and (iv) the revocation of certain licensing actions related to
                     carpets, foodstuffs, commercial passenger aircraft and parts, and activi-
                     ties of foreign entities owned or controlled by United States natural or
                     legal persons.
                        The Respondent contends that the measures in the first three categories
                     are “third country measures” which do not fall within the scope of the
                     Treaty of Amity. It states that its second objection to jurisdiction is not
                     directed at Iran’s claims relating to measures in the fourth category.

                        64. As regards the first three categories of measures, and in particular
                     those involving the reimposition of certain statutory provisions governing
                     sanctions which had been withdrawn under the JCPOA, the United States
                     points out that the latter specified that “[t]he sanctions that the
                     United States will cease to apply . . . pursuant to its commitment under
                     Section 4 are those directed towards non‑U.S. persons”. The JCPOA also
                     clarified that “U.S. persons and U.S.‑owned or ‑controlled foreign enti-
                     ties will continue to be generally prohibited from conducting transactions
                     of the type permitted pursuant to this JCPOA, unless authorised to do so
                     by the U.S. Department of the Treasury”. The United States argues that,
                     as a result, leaving aside the limited fourth category referred to in para-
                     graph 63 above, the only sanctions that were lifted during the period of
                     application of the JCPOA were those aimed at third States or their com-
                     panies and nationals, and that it was only such “third country measures”
                     that were reinstated after 8 May 2018.

                        65. According to the Respondent, the same applies to the provisions
                     resulting from Executive Order 13846, which reinstated certain earlier
                     Executive Orders that had been terminated or amended in connection
                     with the implementation of the JCPOA. The sanctions reimposed by
                     Executive Order 13846 are those directed at non‑United States persons.
                        66. Lastly, regarding the return of certain persons and assets to the
                     United States Department of the Treasury’s SDN List, the Respondent
                     maintains that the relisting of more than 400 individuals or entities prin-
                     cipally affected the nationals and companies of third countries by prohib-
                     iting those nationals or companies, on pain of sanctions, from supplying
                     goods and services to Iranian persons included in the list.

                       67. Having so characterized the measures challenged by Iran in these
                     proceedings, the United States argues that such measures do not fall
                     within the terms of any of the provisions of the Treaty of Amity, which
                     contains no clause that might require the United States either to take or
                     to refrain from taking any measures in respect of trade or transactions
                     between Iran and a third country. In particular, according to the
                     United States, such measures do not fall within the terms of any of the

                     24

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                     30 	                1955 treaty of amity (judgment)

                     provisions of the Treaty of Amity which Iran claims to have been vio-
                     lated, namely Articles IV (paras. 1 and 2), V (para. 1), VII (para. 1),
                     VIII (paras. 1 and 2), IX (paras. 2 and 3) and X (para. 1).
                        68. The United States maintains that Article IV, paragraph 2, and
                     Article V, paragraph 1, are expressly limited to conduct that occurs within
                     the territory of the United States. Likewise, according to the Respondent,
                     Iran is incorrect in claiming that Article VII, paragraph 1, which prohib-
                     its restrictions on the transfer of funds, could apply to the United States’
                     measures that affect payments to or from third countries, and not merely
                     to or from the territory of Iran.

                         69. With regard to Article VIII, paragraphs 1 and 2, which set forth
                     certain obligations relating to the exportation and importation of
                     products, the United States considers that these provisions concern only
                      products of Iran destined for import to the territory of the United States
                      or products of the United States destined for export to Iran. For similar
                      reasons, according to the United States, the measures c oncerning third States
                      fall outside the scope of Article IX, paragraphs 2 and 3, which require
                      each party to accord certain treatment to the companies and nationals of
                      the other party in matters of importation and exportation, and in respect
                      of the ability of companies to obtain marine insurance. Lastly, the
                      United States points out that Article X, paragraph 1, which provides that
                      “[b]etween the territories of the two High Contracting Parties there shall
                      be freedom of commerce and navigation”, contains an “important territo-
                      rial limitation” and therefore does not apply to goods that are subject to
                      intermediate transactions with third countries.

                                                            *
                       70. Iran challenges the concept of “third country measures” which
                     underlies the United States’ second preliminary objection to jurisdiction.
                     According to Iran, this is not only an invention on the part of the Respon-
                     dent, but above all a concept that is misleading, since in reality all the
                     United States’ measures at issue in this case are specifically targeted at
                     Iran and Iranian nationals and companies, not at third States or their
                     nationals and companies. Iran cites as evidence of this, in particular, the
                     words of the United States Department of the Treasury of 5 November
                     2018, which described the measures at issue as “the toughest U.S. sanctions
                     ever imposed on Iran, [which] will target critical sectors of Iran’s econ-
                     omy”.
                       71. Taking the example of Article X, paragraph 1, of the Treaty of
                     Amity, which protects “freedom of commerce” “[b]etween the territories
                     of the two High Contracting Parties”, Iran points out that it matters little
                     whether an obstruction to that freedom takes the form of the withdrawal
                     by the United States of a licence permitting an American company to sell
                     products to an Iranian company (a measure which the Respondent does

                     25

5 Ord_1215.indb 46                                                                                20/05/22 13:08

                     31 	                1955 treaty of amity (judgment)

                     not contest falls within the scope of the Treaty), or of a United States’
                     sanction on a third State bank or other business that prevents the Iranian
                     company from paying for or physically acquiring the products sold by the
                     American company (which would be a so-          called “third country mea-
                     sure”).
                        72. Iran maintains that its Application is based on certain provisions
                     of the Treaty of Amity interpreted in accordance with the rules codified in
                     the Vienna Convention on the Law of Treaties. The Applicant empha-
                     sizes that the ordinary meaning of the text is of key importance and that
                     the context must also be taken into account. In this respect, Iran acknowl-
                     edges that certain provisions of the Treaty of Amity contain territorial
                     limitations. But the very fact that this is the case in certain provisions is
                     seen by Iran as providing an important part of the context for the inter-
                     pretation of those provisions where such limitations are absent, since the
                     obvious inference is that such absence is deliberate.
                        73. Having considered each of the Treaty provisions which it claims
                     that the United States has violated, namely — according to the Applica-
                     tion — Articles IV (para. 1), VII (para. 1), VIII (paras. 1 and 2),
                     IX (para. 2) and X (para. 1), together with — under the terms of the
                     Memorial — Articles IV (para. 2), V (para. 1) and IX (para. 3), Iran
                     requests the Court to determine whether, on the basis of the relevant facts
                     which it alleges, there could exist a violation of one or more of those pro-
                     visions by the United States’ measures which it is contesting. According
                     to Iran, the “relevant facts” are in particular : that the object and effect of
                     the United States’ measures, including the “third country measures”, is to
                     deprive Iranian nationals and companies of their property and enterprises
                     or to harm such property and enterprises on a large scale ; that Iranian
                     nationals and companies operating in the key sectors of Iran’s economy
                     are being deliberately targeted by the United States’ measures ; and that
                     the sanctions are destroying the economy and currency of Iran, driving
                     millions of people into poverty.
                        74. Reviewing the various provisions of the Treaty which it claims
                     have been violated, Iran concludes that “the violations of the Treaty of
                     1955 pleaded by Iran . . . fall within the provisions of the Treaty and
                     [that], as a consequence, the dispute is one which the Court has jurisdic-
                     tion ratione materiae to entertain, pursuant to Article XXI, paragraph 2”,
                     thus echoing the terms of the well‑known statement of the Court in the
                     Oil Platforms case.

                                                          * *
                        75. The Court recalls that, according to its well-established jurispru-
                     dence, in order to determine its jurisdiction ratione materiae under a com-
                     promissory clause concerning disputes relating to the interpretation or
                     application of a treaty, it cannot limit itself to noting that one of the par-
                     ties maintains that such a dispute exists, and the other denies it. It must
                     ascertain whether the acts of which the applicant complains fall within

                     26

5 Ord_1215.indb 48                                                                                20/05/22 13:08

                     32 	               1955 treaty of amity (judgment)

                     the provisions of the treaty containing the compromissory clause. This
                     may require the interpretation of the provisions that define the scope of
                     the treaty (see Immunities and Criminal Proceedings (Equatorial Guinea v.
                     France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I),
                     p. 308, para. 46 ; Oil Platforms (Islamic Republic of Iran v. United States
                     of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
                     p. 810, para. 16).
                        76. The Court observes that the “third country measures” objection
                     does not concern all of Iran’s claims, but only the majority of them.
                     Indeed, the Respondent stated that one of the four categories into which
                     it divides the measures put in place or reimposed pursuant to the Presi-
                     dential Memorandum of 8 May 2018 (see paragraph 63 above) cannot be
                     characterized as “third country measures” and is therefore not included
                     in the second preliminary objection to jurisdiction. This fourth category
                     consists of the revocation of certain licensing actions which had
                     made it possible to engage in certain commercial or financial transactions
                     with Iran during the period of implementation of the JCPOA. A  ccording to
                     the Respondent, the licences in question, which were revoked pursuant to
                     the Memorandum of 8 May 2018, benefited “U.S. persons” and their
                     withdrawal is not included in the objection now under consideration.

                        77. It follows that even if the Court were to uphold the second objec-
                     tion to jurisdiction — and assuming that it does not accept any of the
                     other preliminary objections, each of which concerns all of Iran’s
                     claims — the proceedings would not be terminated. They would in any
                     event have to continue to the merits in respect of the category of measures
                     challenged by Iran which, according to the United States, are not “third
                     country measures”.
                        The Court notes, however, that, as regards this category, the
                     United States has declared that it “reserves the right to argue that some
                     or all of Iran’s claims based on the revocation of particular licensing
                     actions are outside the scope of the Treaty” at a later stage in the pro-
                     ceedings, should they continue.
                        78. The Court observes that the Parties are in disagreement about the
                     relevance of the concept of “third country measures” and about the effects
                     that should follow from the application of such a concept in this case.
                     While, according to the United States, the Court should find that it lacks
                     jurisdiction to entertain most of Iran’s claims, since the vast majority of
                     the measures complained of by the Applicant are directed against
                     “non‑U.S.” persons, companies or entities, Iran, on the other hand, con-
                     tends that the concept of “third country measures” is irrelevant. It is only
                     necessary, according to the Applicant, to examine each category of mea-
                     sures at issue in order to determine whether they fall within the scope of
                     the various provisions of the Treaty of Amity which it claims to have
                     been violated.

                     27

5 Ord_1215.indb 50                                                                                20/05/22 13:08

                     33 	               1955 treaty of amity (judgment)

                        79. Moreover, the Parties disagree on the interpretation of the provi-
                     sions of the Treaty which Iran claims to have been breached by the
                     United States, as regards their territorial scope and their ambit. Accord-
                     ing to Iran, the provisions that do not contain an express territorial limi-
                     tation must be interpreted generally as being applicable to activities
                     exercised in all places, whereas, according to the United States, it follows
                     from the object and purpose of the Treaty of Amity that it is concerned
                     only with the protection of commercial and investment activities of one
                     Party, or of its nationals or companies, on the territory of the other or in
                     the context of trade between them. Furthermore, Iran maintains that the
                     Treaty prohibits the United States from impairing the rights guaranteed
                     to Iran and Iranian nationals and companies, not only through measures
                     applied directly to those nationals or companies, or to “U.S. persons” in
                     their relations with Iran, but also through measures directed in the first
                     instance against a third party, whose real aim is however to prevent Iran,
                     its nationals and its companies from enjoying their rights under the
                     Treaty. The United States contests this view.

                       80. The Court observes that all the measures of which Iran com-
                     plains — those put in place or reinstated as a result of the Presidential
                     Memorandum of 8 May 2018 — are intended to weaken Iran’s economy.
                     Indeed, on the basis of the official statements of the United States’
                     authorities themselves, Iran, its nationals and its companies are the target
                     of what the Respondent describes as “third country measures”, as well as
                     of the measures aimed directly against Iranian entities and of those
                     against “U.S. persons” which are intended to prohibit them from engag-
                     ing in transactions with Iran, its nationals or its companies.

                        However, it cannot be inferred from the above that all the measures at
                     issue are capable of constituting breaches of the United States’ obliga-
                     tions under the Treaty of Amity. What is decisive in this regard is whether
                     each of the measures — or category of measures — under consideration
                     is of such a nature as to impair the rights of Iran under the various provi-
                     sions of the Treaty of Amity which the Applicant claims to have been
                     violated.
                        81. Conversely, the fact that some of the measures challenged —
                     whether or not they are “the vast majority”, as the United States main-
                     tains — directly target third States or the nationals or companies of third
                     States does not suffice for them to be automatically excluded from the
                     ambit of the Treaty of Amity. Only through a detailed examination of
                     each of the measures in question, of their reach and actual effects, can the
                     Court determine whether they affect the performance of the United States’
                     obligations arising out of the provisions of the Treaty of Amity invoked
                     by Iran, taking account of the meaning and scope of those various provi-
                     sions.
                        82. In sum, the Court considers that the second preliminary objection
                     of the United States relates to the scope of certain obligations relied upon

                     28

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                     34 	               1955 treaty of amity (judgment)

                     by the Applicant in the present case and raises legal and factual questions
                     which are properly a matter for the merits (cf. Application of the Interna-
                     tional Convention for the Suppression of the Financing of Terrorism and of
                     the International Convention on the Elimination of All Forms of Racial Dis-
                     crimination (Ukraine v. Russian Federation), Preliminary Objections,
                     Judgment, I.C.J. Reports 2019 (II), p. 586, para. 63). If the case were to
                     proceed to the merits, such matters would be decided by the Court at that
                     stage, on the basis of the arguments advanced by the Parties.
                        83. In light of the above, the Court finds that the second prelimi-
                     nary objection to jurisdiction raised by the United States cannot be
                     upheld.

                                                          *
                       84. For all the reasons set out above, the Court finds that it has juris-
                     diction ratione materiae to entertain the Application of Iran on the basis
                     of Article XXI, paragraph 2, of the 1955 Treaty of Amity.

                                     III. Admissibility of Iran’s Application

                        85. The United States submits, in the alternative, a preliminary objec-
                     tion to the admissibility of Iran’s Application. In its view, all claims
                     brought by Iran are inadmissible because they would amount to an abuse
                     of process and would raise questions of judicial propriety.

                        86. The Respondent observes that there is no comprehensive definition
                     in the Court’s jurisprudence of what type of conduct constitutes an abuse
                     of process ; what is considered an abuse will vary depending on the cir-
                     cumstances of the case. The United States contends that, while the notion
                     of abuse of process may be tied to the principle of good faith, an analysis
                     of whether a State has acted or is acting in good or bad faith is not neces-
                     sarily required. The Respondent recalls that the Court may decline to
                     hear a case where there exists clear evidence that the conduct of the appli-
                     cant State amounts to an abuse of process.
                        87. The United States maintains that in the present case there are
                     exceptional circumstances that warrant the dismissal by the Court of the
                     entirety of the case on account of an abuse of process. The Respondent
                     contends that through this case Iran is seeking to obtain “an illegitimate
                     advantage” in respect of its nuclear activities and aims to bring “political
                     and psychological pressure on the United States”. As with regard to its
                     first objection to the Court’s jurisdiction, the United States argues that
                     the dispute exclusively concerns the JCPOA. It asserts that, by bringing
                     this case to the Court, Iran is seeking relief from the sanctions that had
                     been lifted under the JCPOA and that had been reinstated subsequently.
                     The United States points out that political mechanisms were set forth
                     under the JCPOA to address the non‑performance by a participant of its

                     29

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                     35 	                1955 treaty of amity (judgment)

                     commitments, but that the participants did not consent to the jurisdiction
                     of the Court to resolve disputes under that instrument. The Respondent
                     contends that, were the case to proceed to the merits and the Court to
                     grant the relief Iran has requested, the Applicant would obtain the lifting
                     of a specific set of nuclear-related sanctions, which “formed the heart of
                     the bargain in the JCPOA”. Iran could be granted relief from
                     United States’ nuclear-related sanctions without being bound to uphold
                     its own commitments under the JCPOA. In light of these circumstances,
                     which in the view of the Respondent are exceptional, the Application
                     should be held inadmissible.
                        88. Moreover, the United States contends that the Court has the inher-
                     ent power to decline to exercise its jurisdiction in order to protect the
                     integrity of its judicial function. In the Respondent’s view, it would be
                     “reasonable, necessary and appropriate” for that purpose for the Court
                     to declare the present case inadmissible. By hearing a case that raises
                     questions deeply entangled with the JCPOA, the Court could compro-
                     mise its judicial integrity. The United States contends that, if the Court
                     were to grant Iran relief from nuclear‑related sanctions, it would be
                     placed “at odds with its inherently judicial function”.

                                                           *
                       89. Iran points out that the Court has had to consider arguments based
                     on abuse of process in the past, but has stated that an abuse could occur
                     only under exceptional circumstances which have never been found to
                     exist. Iran argues that the threshold for an abuse of process is very high
                     and may be reached only if supported by clear evidence.

                        90. In the present case, Iran contends that there are no exceptional
                     circumstances that would justify the Court pronouncing an abuse of pro-
                     cess. In Iran’s view, it is normal that a dispute brought under a treaty has
                     political implications. Responding to the United States’ contention that
                     Iran would obtain an “illegitimate advantage” if the Court were to pro-
                     nounce in its favour, and that the case is really about the JCPOA and not
                     the Treaty of Amity, Iran recalls that the Court has already considered
                     similar contentions in other cases and concluded that the relevant circum-
                     stances did not constitute an abuse of process. The Applicant argues that
                     asserting its rights under a treaty in force between the Parties cannot be
                     illegitimate. Moreover, it maintains that access to judicial recourse cannot
                     be barred simply because of the “risk of influencing the execution of
                     another international instrument”.

                        91. Iran further argues that, by exercising its jurisdiction in the present
                     case, the Court would not compromise the integrity of its judicial func-
                     tion. It points out that the United States has not defined the conditions
                     under which the Court should declare a case inadmissible for consider-

                     30

5 Ord_1215.indb 56                                                                                20/05/22 13:08

                     36 	               1955 treaty of amity (judgment)

                     ations of judicial propriety. Iran argues that for the Court to decide not
                     to exercise its jurisdiction, there must exist circumstances “of such a
                     nature that they are capable of preventing or hindering the capacity of the
                     Court to address the specific legal and factual subject‑matter” of the case.
                     According to Iran, whether the dispute is entangled with the JCPOA, and
                     whether there exists a risk of granting an “illegitimate advantage” to Iran,
                     are not valid reasons for questioning the integrity of the judicial process.
                     Iran argues that none of the claims it presents actually requires the Court
                     to make any legal finding on the JCPOA ; the fact that the JCPOA con-
                     stitutes part of the factual background has no impact on the Court’s exer-
                     cise of its judicial function.

                                                         * *
                       92. The objection to admissibility raised by the United States is based
                     on the contention that “Iran’s claims amount to an abuse of process and
                     would work an injustice that would raise serious questions of judicial pro-
                     priety”. This is because “Iran has invoked the Treaty [of Amity] in a case
                     involving a dispute that solely concerns the application of the JCPOA”.
                     The Court notes that the United States did not address its objection to
                     the admissibility of Iran’s Application during the oral hearings, but
                     expressly maintained that objection.

                         93. As the Court observed in Immunities and Criminal Proceedings
                     (Equatorial Guinea v. France), “[i]t 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” (Preliminary Objections, Judgment,
                     I.C.J. Reports 2018 (I), p. 336, para. 150). The Court has specified that
                     there has to be “clear evidence” that the Applicant’s conduct amounts to
                     an abuse of process (for analogous statements, see Certain Iranian Assets
                     (Islamic Republic of Iran v. United States of America), Preliminary
                     Objections, Judgment, I.C.J. Reports 2019 (I), pp. 42‑43, para. 113 ;

                     Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019 (II), p. 433,
                      para. 49).
                         94. In the present case, the Court has already ascertained that the dis-
                      pute submitted by the Applicant concerns alleged breaches of obligations
                      under the Treaty of Amity and not the application of the JCPOA (see
                      paragraph 60 above). The Court has also found that the compromissory
                      clause included in the Treaty of Amity provides a valid basis for its juris-
                      diction with regard to the Applicant’s claims (see paragraph 84 above). If
                      the Court eventually found on the merits that certain obligations under
                      the Treaty of Amity have indeed been breached, this would not imply
                      giving Iran any “illegitimate advantage” with regard to its nuclear

                      programme, as contended by the United States. Such a finding would rest
                       on an examination by the Court of the treaty provisions that are encom-
                       passed within its jurisdiction.

                     31

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                     37 	               1955 treaty of amity (judgment)

                        95. In the view of the Court, there are no exceptional circumstances
                     that would justify considering Iran’s Application inadmissible on the
                     ground of abuse of process. In particular, the fact that Iran only chal-
                     lenged the consistency with the Treaty of Amity of the measures that had
                     been lifted in conjunction with the JCPOA and then reinstated in
                     May 2018, without discussing other measures affecting Iran and its
                     nationals or companies, may reflect a policy decision. However, as was
                     noted in Border and Transborder Armed Actions (Nicaragua v.
                     Honduras), the Court’s judgment “cannot concern itself with the political
                     motivation which may lead a State at a particular time, or in
                     particular circumstances, to choose judicial settlement” (Jurisdiction and
                     Admissibility, Judgment, I.C.J. Reports 1988, p. 91, para. 52). In any event,
                     the fact that most of Iran’s claims concern measures that had been lifted
                     in conjunction with the JCPOA and were later reinstated does not indicate
                     that the submission of these claims constitutes an abuse of process.

                        96. In light of the foregoing, the Court finds that the objection to the
                     admissibility of the Application raised by the United States must be
                     rejected.

                     IV. Objections on the Basis of Article XX, Paragraph 1 (b) and (d),
                                           of the Treaty of Amity

                        97. The United States maintains that Article 79 (now Article 79bis) of
                     the Rules of Court sets out three types of preliminary objections, namely
                     objections to the jurisdiction of the Court, objections to the admissibility
                     of the Application, and any “other objection the decision upon which is
                     requested before any further proceedings on the merits”. The Respondent
                     contends that the Court has recognized in the past that an objection may
                     fall into this last category and may have an exclusively preliminary char-
                     acter even if it touches on certain aspects of the merits.
                        98. The United States submits that in the present case its objections
                     based on Article XX, paragraph 1 (b) and (d) — which provide that the
                     Treaty of Amity does not preclude the application of measures “relating
                     to fissionable materials” or that are necessary to protect a State’s “essen-
                     tial security interests” — fall into this third category of objections under
                     Article 79 of the Rules of Court and are of an exclusively preliminary
                     character. The Respondent argues that a determination on these objec-
                     tions can be made on the basis of the facts already before the Court,
                     without deciding on the merits of the case and without prejudging Iran’s
                     claims. According to the United States, even though in its jurisprudence
                     the Court has decided that objections based on Article XX, paragraph 1,
                     of the Treaty of Amity were defences on the merits to be considered at a
                     subsequent phase, in the present case the Court should examine them as
                     a preliminary matter, in particular because they are “severable from the
                     merits of Iran’s claims”. In the “interests of fairness, procedural economy,

                     32

5 Ord_1215.indb 60                                                                                20/05/22 13:08

                     38 	               1955 treaty of amity (judgment)

                     and the sound administration of justice”, the United States maintains that
                     the Court should render an early decision on these questions.

                        99. The United States argues that both objections cover the entirety of
                     Iran’s claims. It maintains, therefore, that a decision on the objections
                     should be made at the preliminary stage of the proceedings.
                        100. In the United States’ view, all measures at issue in this case can be
                     categorized as “nuclear‑related” ; therefore, they are all covered by Arti-
                     cle XX, paragraph 1 (b), of the Treaty of Amity. The United States con-
                     tends that, in light of the text and context of this provision, the phrase
                     “relating to fissionable materials” gives a party a considerable degree of
                     discretion for taking “a full range of measures developed and adopted to
                     control and prevent proliferation of sensitive nuclear materials”, and not
                     only measures regulating direct trade in fissionable materials.

                        101. The United States notes that the present case is concerned solely
                     with the measures reinstated on 8 May 2018, which were those that had
                     been lifted with the adoption of the JCPOA. The Respondent indicates
                     that all of those measures were categorized by JCPOA participants,
                     including Iran, as “national sanctions related to Iran’s nuclear pro-
                     gramme”. In the Respondent’s opinion, for Article XX, paragraph 1 (b),
                     to apply, it is irrelevant that the measures were reimposed for both nuclear
                     and non-nuclear related security reasons.
                        102. Additionally, the United States contends that the measures at
                     issue fall within Article XX, paragraph 1 (d), of the Treaty of Amity. The
                     Respondent argues that the notion of essential security interests referred
                     to in this provision is broad ; to reach the required threshold, measures do
                     not need to be taken in relation to an armed attack, or with regard to
                     matters considered by the Security Council as a threat to international
                     peace and security. The United States contends that “wide discretion”
                     and “substantial deference” must be granted to the State invoking sub-
                     paragraph (d) in determining whether national security is at stake and
                     what measures are necessary.

                       103. In the present case, the United States indicates that in light of
                     “Iran’s ongoing record of violent and destabilizing acts”, measures were
                     necessary to protect the Respondent’s essential security interests. The
                     decision to reimpose sanctions was taken at the highest level of govern-
                     ment, on the basis of an evaluation of Iran’s nuclear ambitions, as well as
                     other Iranian policies that were of concern for the United States, such as
                     those related to the financing of terrorism.

                                                          *
                       104. Iran argues that the Respondent’s objections that are based on
                     Article XX, paragraph 1, do not fall within the objections mentioned in
                     Article 79 of the Rules of Court. Iran acknowledges that some prelimi-

                     33

5 Ord_1215.indb 62                                                                                20/05/22 13:08

                     39 	                 1955 treaty of amity (judgment)

                     nary objections may not be easily classified as either pertaining to the
                     jurisdiction of the Court or to the admissibility of the Application, but
                     this does not mean that there exists a “third category” of preliminary
                     objections which may include objections pertaining to the merits. Iran
                     argues that, in order to be dealt with at this stage, “an objection must be
                     jurisdictional in nature without touching upon the substance of the merits
                     of the case”. It maintains that the position of the United States, which
                     argues that its objections do not affect the Court’s jurisdiction but are
                     nonetheless “preliminary in nature”, is contradictory ; in Iran’s view, a
                     preliminary objection can only be aimed at preventing the Court from
                     exercising its jurisdiction. Iran argues that whether subparagraphs (b)
                     and (d) of Article XX, paragraph 1, of the Treaty of Amity cover the
                     entirety of its claims is irrelevant in determining the nature of the objec-
                     tions: these objections remain defences on the merits, whether they cover
                     all of Iran’s submissions or not.
                        105. Iran contends that there is no reason for the Court to depart from
                     its findings in the case concerning Certain Iranian Assets, in which it con-
                     cluded 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”. Moreover, the Applicant submits that an extensive factual analysis
                     would be necessary to decide on the objections based on subparagraphs (b)
                     and (d) of Article XX, paragraph 1, and that such an analysis can only be
                     conducted at the merits stage ; it is “unsuitable and improper” at the pres-
                     ent stage. Indeed, the facts and arguments in support of these objections
                     are substantially the same as the ones forming the basis of the case on the
                     merits. The Applicant submits that if the Court were to pronounce at this
                     stage on the defences of Article XX, paragraph 1, Iran’s rights would form
                     the very subject‑matter of the decision. Moreover, in the Applicant’s view,
                     at this stage of the proceedings the Court does not have in its possession all
                     the necessary factual elements to make a determination on the objections
                     raised on the basis of Article XX, paragraph 1 (b) and (d).
                        106. Iran also points out that subparagraph (b) must be interpreted in
                     light of the object and purpose of the Treaty and that therefore it only
                     applies to trade, investment or other economic activities in relation to fis-
                     sionable materials. Measures related to nuclear activity broadly speaking
                     are not covered by Article XX, paragraph 1 (b). In the present case, Iran
                     contends that none of the measures in dispute concerns fissionable mat
                     erials or their radioactive by-products.
                        107. In relation to subparagraph (d), Iran maintains that the concerns of
                     the United States with regard to its essential security interests did not justify
                     implementing the measures at hand. The Applicant recalls that it is the
                     Court’s role to assess the probative value of the arguments put forward by
                     the Respondent and to determine whether there exist reasonable grounds
                     for the United States to consider that the imposition of the sanctions in dis-
                     pute was necessary and proportional to protect its security interests. In the
                     present case, Iran contends that the measures reimposed by the United States
                     cannot be considered as necessary in order to protect its essential security

                     34

5 Ord_1215.indb 64                                                                                20/05/22 13:08

                     40 	                        1955 treaty of amity (judgment)

                     interests. According to the Applicant, the invocation of Article XX, para-
                     graph 1 (d), by the United States is “unfounded and abusive”.

                                                                            * *
                       108. Article XX, paragraph 1, of the Treaty of Amity reads as follows :
                              “1. The present Treaty shall not preclude the application of meas-
                          ures:
                          �����������������������������������������������������������������������������������������������������������������
                          (b) relating to fissionable materials, the radio-                                active by-      products
                                thereof, or the sources thereof;

                          �����������������������������������������������������������������������������������������������������������������
                          (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 inter-
                                ests.”

                        109. The Court recalls that in the Oil Platforms case (Islamic Republic
                     of Iran v. United States of America), it found that “Article XX, para-
                     graph 1 (d), [of the Treaty of Amity] does not restrict its jurisdiction in
                     the present case, but is confined to affording the Parties a possible defence
                     on the merits” (Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
                     p. 811, para. 20). A similar view was expressed in the case concerning
                     Certain Iranian Assets (Islamic Republic of Iran v. United States of Amer-
                     ica) (Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 25,
                     para. 45), where the Court noted that the interpretation given to Arti-
                     cle XX, paragraph 1, with regard to subparagraph (d) also applies to
                     subparagraph (c), which concerns measures “regulating the production
                     of or traffic in arms, ammunition and implements of war”. The Court
                     observed that in this respect “there are no relevant grounds on which to
                     distinguish [subparagraph (c)] from Article XX, paragraph 1, subpara-
                     graph (d)” (ibid., p. 25, para. 46). The Court finds that there are equally
                     no relevant grounds for a distinction with regard to subparagraph (b),
                     which may only afford a possible defence on the merits.
                        110. The Parties do not dispute that arguments based on Article XX of
                     the Treaty of Amity do not affect either the Court’s jurisdiction or the
                     admissibility of the Application. However, the Respondent argues that
                     objections formulated on the basis of Article XX, paragraph 1 (b)
                     and (d), may be presented as preliminary according to Article 79 of the
                     Rules of Court as “other objection[s] the decision upon which is requested
                     before any further proceedings on the merits”. For the following reasons,
                     the two objections raised by the United States on the basis of Article XX,
                     paragraph 1 (b) and (d), cannot be considered as preliminary. A deci-
                     sion concerning these matters requires an analysis of issues of law and
                     fact that should be left to the stage of the examination of the merits.

                     35

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                     41 	               1955 treaty of amity (judgment)

                        111. 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 impor-
                     tation 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.
                        112. The same applies to measures taken by the United States allegedly
                     because they are deemed “necessary to protect its essential security inter-
                     ests” and are therefore argued to be comprised in the category of mea-
                     sures that are outlined in subparagraph (d). The analysis of this objection
                     would raise the question of the existence of such essential security inter-
                     ests and may require an assessment of the reasonableness and necessity of
                     the measures in so far as they affect the obligations under the Treaty of
                     Amity (see Military and Paramilitary Activities in and against Nicaragua
                     (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
                     1986, p. 117, para. 224). Such an assessment can be conducted only at the
                     stage of the examination of the merits.

                       113. For the foregoing reasons, the arguments raised by the Respon-
                     dent with regard to Article XX, paragraph 1 (b) and (d), of the Treaty
                     of Amity cannot provide a basis for preliminary objections, but may be
                     presented at the merits stage. Therefore, the preliminary objections raised
                     by the United States based on these provisions must be rejected.

                                                           *
                                                       *       *

                       114. For these reasons,
                       The Court,
                       (1) Unanimously,
                       Rejects the preliminary objection to its jurisdiction raised by the
                     United States of America according to which the subject-matter of the
                     dispute does not relate to the interpretation or application of the Treaty
                     of Amity, Economic Relations, and Consular Rights of 1955;
                       (2) Unanimously,
                        Rejects the preliminary objection to its jurisdiction raised by the
                     United States of America relating to the measures concerning trade or
                     transactions between the Islamic Republic of Iran (or Iranian nationals
                     and companies) and third countries (or their nationals and companies);

                     36

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                     42 	               1955 treaty of amity (judgment)

                       (3) By fifteen votes to one,
                        Rejects the preliminary objection to the admissibility of the Applica-
                     tion raised by the United States of America;
                       in favour: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                         Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson,
                         Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;
                       against: Judge ad hoc Brower;
                       (4) By fifteen votes to one,
                        Rejects the preliminary objection raised by the United States of Amer-
                     ica on the basis of Article XX, paragraph 1 (b), of the Treaty of Amity,
                     Economic Relations, and Consular Rights of 1955;
                       in favour: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                         Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson,
                         Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;

                       against: Judge ad hoc Brower;
                       (5) Unanimously,
                        Rejects the preliminary objection raised by the United States of Amer-
                     ica on the basis of Article XX, paragraph 1 (d), of the Treaty of Amity,
                     Economic Relations, and Consular Rights of 1955;
                       (6) By fifteen votes to one,
                       Finds, consequently, that it has jurisdiction, on the basis of Article XXI,
                     paragraph 2, of the Treaty of Amity, Economic Relations, and Consular
                     Rights of 1955, to entertain the Application filed by the Islamic Republic
                     of Iran on 16 July 2018, and that the said Application is admissible.
                       in favour: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                         Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson,
                         Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Momtaz;

                       against: Judge ad hoc Brower.

                       Done in English and in French, the English text being authoritative, at
                     the Peace Palace, The Hague, this third day of February, two thousand
                     and twenty-one, in three copies, one of which will be placed in the archives
                     of the Court and the others transmitted to the Government of the Islamic
                     Republic of Iran and the Government of the United States of America,
                     respectively.

                                                         (Signed) Abdulqawi Ahmed Yusuf,
                                                                         President.
                                                              (Signed) Philippe Gautier,
                                                                           Registrar.

                     37

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                     43 	             1955 treaty of amity (judgment)

                       Judge Tomka appends a declaration to the Judgment of the Court;
                     Judge ad hoc Brower appends a separate, partly concurring and partly
                     dissenting, opinion to the Judgment of the Court.
                                                                     (Initialled) A.A.Y.
                                                                      (Initialled) Ph.G.

                     38

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