                                                                                684

                            DECLARATION OF JUDGE AD HOC MOMTAZ

                 [Translation]

                    Security Council resolution 2231 (2015) — Binding effect of the obligations
                 imposed by resolution 2231 (2015) on United Nations Member States — Iran has
                 complied with its commitments under the JCPOA — Unlawfulness of the
                 extraterritorial measures taken by the United States in international law —
                 Sanctions with extraterritorial effect do not fall within the provisions of Article XX,
                 paragraph 1 (d) of the Treaty of Amity, Economic Relations, and Consular Rights
                 of 15 August 1955 — Mission of the Court as the principal judicial organ of the
                 United Nations in the maintenance of international peace and security.

                   1. I voted in favour of the three provisional measures indicated by the
                 Court in the operative part of the Order. However, I fear that the first
                 two provisional measures are not sufficient to protect the rights of Iran as
                 a matter of urgency or to avoid irreparable prejudice being caused to
                 those rights.
                   2. In point (1) (iii) of paragraph 102, the operative part of the Order,
                 the Court has limited the scope of the first provisional measure to “spare
                 parts, equipment and maintenance services necessary for civil aircraft
                 safety”. In my opinion, this measure does not enable Iran to ensure the
                 safety of its civil aviation, and thus to avoid irreparable prejudice being
                 caused to its rights under the Treaty of Amity. As the Court recalled in
                 paragraph 81 of its Order, Iran’s fleet of aircraft is one of the oldest in the
                 world. Iran asserted as much during the oral proceedings and this was not
                 contested. The first provisional measure should also have applied to the
                 purchase of aircraft and to the orders which have already been placed by
                 Iran and which are subject to the sanctions reimposed by the United
                 States. I regret that this was not included in the operative part of the
                 Order.
                   3. As regards the second provisional measure, and in view of the sec-
                 ondary, extraterritorial sanctions of the United States (Order, paras. 74
                 and 83), it would have been desirable for the Court to request that the
                 United States refrain from taking any measures aimed at discouraging the
                 companies and nationals of third States from maintaining trade relations
                 with Iran, in particular to enable Iran to purchase new civil aircraft.

                    4. While I agree with the reasoning set out in the Court’s Order, I never
                 theless believe it necessary to examine three questions on which the Court
                 did not rule — at least not at this stage of the proceedings. In my view,
                 these questions are particularly important since the purpose of provi-
                 sional measures is to prevent the aggravation of a dispute and to protect
                 the rights of the disputing parties pending a decision by the Court on the

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                 merits. Moreover, these questions are central to the Court’s role as the
                 principal judicial organ of the United Nations, as well as its role in pro-
                 tecting and promoting the purposes and principles of the Charter, includ-
                 ing in maintaining international peace and security.

                     1. The Obligations of United Nations Member States under
                              Security Council Resolution 2231 (2015)

                    5. In paragraph 18 of its Order, the Court takes note of Security Coun-
                 cil resolution 2231 (2015), but does not elucidate its legal consequences.
                 This resolution, which was adopted unanimously, is part of the factual
                 context in which the dispute submitted to the Court under the Treaty of
                 Amity arose. Although this dispute does not concern the United States’
                 compliance with resolution 2231 (2015) or its withdrawal from the Joint
                 Comprehensive Plan of Action (hereinafter the “JCPOA” or the “Plan”),
                 it could have been avoided had the United States adhered to its commit-
                 ments under resolution 2231 (2015).
                    6. Resolution 2231 (2015) does not expressly refer to Chapter VII of
                 the Charter of the United Nations. Nonetheless, the reference in the reso-
                 lution’s preamble to Article 25 of the Charter, and the ten references in its
                 operative part to Article 41, part of Chapter VII of the Charter, prove
                 that it imposes obligations on Member States. The resolution endorsed
                 the JCPOA in its entirety. Regardless of the legal status of the Plan as
                 such, in particular whether it is a binding instrument for the States which
                 concluded it, what is important here is to ascertain whether and to what
                 extent resolution 2231 (2015) imposes binding obligations on all Member
                 States of the Organization, including the United States.

                   7. First, the Court has had occasion to state the following on the bind-
                 ing effect of resolutions adopted by the Security Council:
                         “It would be an untenable interpretation to maintain that, once
                     such a declaration had been made by the Security Council under Arti-
                     cle 24 of the Charter, on behalf of all member States, those Members
                     would be free to act in disregard of such illegality or even to recognize
                     violations of law resulting from it
                     �����������������������������������������������������������������������������������������������������������������
                         Article 25 is not confined to decisions in regard to enforcement
                     action but applies to ‘the decisions of the Security Council’ adopted
                     in accordance with the Charter. Moreover, that Article is placed, not
                     in Chapter VII, but immediately after Article 24 in that part of the
                     Charter which deals with the functions and powers of the Security
                     Council. If Article 25 had reference solely to decisions of the Security
                     Council concerning enforcement action under Articles 41 and 42 of

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                     the Charter, that is to say, if it were only such decisions which had
                     binding effect, then Article 25 would be superfluous, since this effect
                     is secured by Articles 48 and 49 of the Charter.
                         It has also been contended that the relevant Security Council
                     resolutions are couched in exhortatory rather than mandatory lan-
                      guage and that, therefore, they do not purport to impose any legal
                      duty on any State nor to affect legally any right of any State. The
                      language of a resolution of the Security Council should be carefully
                      analysed before a conclusion can be made as to its binding effect. In
                      view of the nature of the powers under Article 25, the question
                      whether they have been in fact exercised is to be determined in each
                      case, having regard to the terms of the resolution to be interpreted,
                      the discussions leading to it, the Charter provisions invoked and, in
                      general, all circumstances that might assist in determining the legal
                      consequences of the resolution of the Security Council.” (Legal Con-
                      sequences for States of the Continued Presence of South Africa in
                      Namibia (South West Africa) notwithstanding Security Council Reso-
                      lution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 52‑53,
                     paras. 112‑114.)

                    8. As a general rule, therefore, the binding effect of Security Council
                 decisions is not limited to those taken under the provisions of Chap-
                 ter VII (see also, for example, Legal Consequences of the Construction of
                 a Wall in the Occupied Palestinian Territory, Advisory Opinion,
                 I.C.J. Reports 2004 (I), pp. 191-192, para. 134). Thus, ascertaining
                 whether a Security Council resolution is binding requires an analysis of
                 the terms used therein, the discussions which led to its adoption and the
                 provisions of the Charter it cites, with a view to determining whether the
                 Security Council intended to establish an obligation for Member States
                 (see, for example, East Timor (Portugal v. Australia), Judgment,
                 I.C.J. Reports 1995, p. 104, para. 32). While the rules on treaty interpreta-
                 tion embodied in Articles 31 and 32 of the Vienna Convention on the
                 Law of Treaties may provide guidance, “the interpretation of Security
                 Council resolutions also require[s] that other factors be taken into
                 account” (Accordance with International Law of the Unilateral Declaration
                 of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports
                 2010 (II), p. 442, para. 94). Thus:

                       “The interpretation of Security Council resolutions may require the
                     Court to analyse statements by representatives of members of the
                     Security Council made at the time of their adoption, other resolutions
                     of the Security Council on the same issue, as well as the subsequent
                     practice of relevant United Nations organs and of States affected by
                     those given resolutions.” (Ibid.)

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                    9. One must therefore examine the language, the object and purpose,
                 and the context of resolution 2231 (2015) to determine its legal effect. As
                 has been recalled, the resolution’s preamble provides that “Member
                 States are obligated under Article 25 of the Charter of the United Nations
                 to accept and carry out the Security Council’s decisions”. In that same
                 preamble, the Security Council made repeated references to the impor-
                 tance of the JCPOA, which “marks a fundamental shift in [the] consider-
                 ation” of the Iranian nuclear issue, the culmination of diplomatic efforts
                 in the area of non‑proliferation which falls squarely within the compe-
                 tence of the Security Council. It also invited all States to co‑operate with
                 Iran and underscored the importance of the role of the International
                 Atomic Energy Agency (IAEA) in implementing and monitoring the
                 commitments contained in the Plan and approved in the resolution, with
                 the Security Council, as emphasized by its permanent members following
                 the adoption of the resolution, guaranteeing its implementation.

                    10. If the true intention of the Security Council was in fact simply to
                 take note of the JCPOA, it could have done so, as it usually does, without
                 appending the entire text of that lengthy instrument to the resolution. Yet
                 that was not the intention with resolution 2231 (2015), in which the Secu-
                 rity Council “[e]ndorses the JCPOA and urges its full implementation on
                 the timetable established [there]in”. It is absolutely clear from the opening
                 of the resolution’s operative part, immediately preceded by a reference in
                 its preamble to Article 25 of the Charter, that the Security Council
                 intended to establish binding obligations for all Member States, including
                 the United States.

                    11. An examination of the operative part of the resolution confirms its
                 binding nature. The vast majority of its provisions are preceded by an
                 express reference to Article 41, part of Chapter VII of the Charter. This
                 includes paragraphs 7 to 9, 11 to 13, 16 and 21 to 23. In paragraph 7, for
                 example, the Security Council, “acting under Article 41 of the Charter”,
                 decided to lift the sanctions contained in its previous resolutions on the
                 Iranian nuclear issue, i.e. resolutions 1696 (2006), 1737 (2006), 1747 (2007),
                 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015). Other provisions
                 of resolution 2231 (2015), which are not preceded by an express reference
                 to Article 41 of the Charter, are nonetheless binding on the United
                 Nations Member States in so far as they were adopted in accordance with
                 the purposes and principles of the Charter and the provisions of Arti-
                 cle 25. As the Court has recalled,

                     “when the Security Council adopts a decision under Article 25 in
                     accordance with the Charter, it is for member States to comply with
                     that decision, including those [non-permanent] members of the Secu-

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                     rity Council which voted against it and those Members of the United
                     Nations who are not members of the Council” (Legal Consequences
                     for States of the Continued Presence of South Africa in Namibia (South
                     West Africa) notwithstanding Security Council Resolution 276 (1970),
                     Advisory Opinion, I.C.J. Reports 1971, p. 54, para. 116).

                 Last but not least, most of the provisions in resolution 2231 (2015) are
                 addressed to the United Nations Member States. It follows that, in
                 endorsing the JCPOA, resolution 2231 (2015) established binding obliga-
                 tions for all Member States, including the United States.

                    12. Finally, and although the present proceedings are at a preliminary
                 stage, it is worth examining the validity of the arguments put forward by
                 the United States to justify “the re‑imposition of all sanctions that had
                 previously been lifted or waived in connection with the plan” and resolu-
                 tion 2231 (2015). In a memorandum dated 8 May 2018, the President of
                 the United States observed that “Iran ha[s] publicly declared it would
                 deny the International Atomic Energy Agency (IAEA) access to military
                 sites”, and that, in 2016, Iran “twice violated the JCPOA’s heavy‑water
                 stockpile limits” (Order, para. 20). In reality, however, since 16 January
                 2016, the IAEA has verified and monitored Iran’s compliance with its
                 nuclear‑related commitments under the JCPOA, a mandate conferred on
                 it by resolution 2231 (2015). In its quarterly reports, the IAEA has con-
                 firmed Iran’s adherence to its commitments.

                    13. One need only refer to the IAEA’s 2018 reports to refute the justi-
                 fications put forward by the United States. First, on the question of access
                 to the sites in Iran, the IAEA has stated that “[t]he Agency has continued
                 to evaluate Iran’s declarations under the Additional Protocol, and has
                 conducted complementary accesses under the Additional Protocol to all
                 the sites and locations in Iran which it needed to visit” (“Verification and
                 monitoring in the Islamic Republic of Iran in light of United Nations
                 Security Council resolution 2231 (2015)”, doc. GOV/2018/7 of 22 Febru-
                 ary 2018, para. 23). In its latest report published on 30 August 2018, the
                 IAEA once again confirmed that it had accessed all the sites and locations
                 in Iran which it needed to visit, and further observed that “[t]imely and
                 proactive co-operation by Iran in providing such access facilitates imple-
                 mentation of the Additional Protocol and enhances confidence” (“Verifi-
                 cation and monitoring in the Islamic Republic of Iran in light of United
                 Nations Security Council resolution 2231 (2015)”, doc. GOV/2018/33 of
                 30 August 2018, para. 24). Moreover, in its report of 25 May 2018, just a
                 few weeks after the statement by the President of the United States
                 announcing the decision to reimpose and aggravate the economic sanc-
                 tions which had been lifted under the JCPOA, the IAEA confirmed that
                 Iran was continuing to co‑operate with the Agency and to comply with its

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                 commitments, including on access to the sites (“Verification and monitor-
                 ing in the Islamic Republic of Iran in light of United Nations Security
                 Council resolution 2231 (2015)”, doc. GOV/2018/24 of 24 May 2018,
                 para. 23). The 30 August 2018 report was also very clear on the subject of
                 heavy‑water stockpile limits: during the three‑month reporting period,
                 Iran had no more than 130 metric tonnes of heavy water, and was thus
                 within the limits set out in paragraph 14 of Annex I to the JCPOA.
                 Regarding Iran’s compliance with that commitment in 2016, an examina-
                 tion of the IAEA’s reports from that time is again enlightening:

                        “2. [. . .]on 8 November 2016, the Agency verified that Iran’s stock
                     of heavy water had reached 130.1 metric tonnes and, in a letter
                     received by the Agency on 9 November 2016, Iran informed the
                     Agency of ‘Iran’s plan to make preparation for transfer of five metric
                     tons of its nuclear grade heavy water’ out of Iran.
                        3. On 12 November 2016, Iran informed the Agency of its decision
                     to make preparations to transfer an additional six metric tonnes of
                     nuclear grade heavy water out of Iran. On 12 and 13 November 2016,
                     the Agency verified and sealed 11 metric tonnes of nuclear grade
                     heavy water that Iran was preparing for transfer out of Iran.
                        4. On 21 November 2016, Iran informed the Agency that the
                     11 metric tonnes of nuclear grade heavy water had been shipped out
                     of Iran on 19 November 2016.
                        5. On 6 December 2016, the Agency verified the quantity of 11 met-
                     ric tonnes of the nuclear grade heavy water at its destination outside
                     Iran. This transfer of heavy water out of Iran brings Iran’s stock of
                     heavy water to below 130 tonnes.” (“Verification and monitoring in
                     the Islamic Republic of Iran in light of United Nations Security Coun-
                     cil resolution 2231 (2015)”, doc. GOV/INF/2016/13 of 6 December
                     2016.)
                    14. Finally, it should be noted that since the United States announced
                 its intention to withdraw from the JCPOA and to reimpose its unilateral
                 sanctions, the European Union (EU) has not only confirmed Iran’s com-
                 pliance with its commitments, but also called for resolution 2231 (2015)
                 to be respected, having taken the necessary measures in EU law to protect
                 the rights of EU companies doing legitimate business with Iran:

                       “The lifting of nuclear‑related sanctions is an essential part of the
                     deal — it aims at having a positive impact not only on trade and
                     economic relations with Iran, but most importantly on the lives of the
                     Iranian people. We are determined to protect European economic
                     operators engaged in legitimate business with Iran, in accordance with
                     EU law and with UN Security Council resolution 2231. This is why
                     the European Union’s updated Blocking Statute enters into force on
                     7 August to protect EU companies doing legitimate business with Iran

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                       from the impact of US extra‑territorial sanctions.” (“Joint statement
                       on the re‑imposition of US sanctions due to its withdrawal from the
                       Joint Comprehensive Plan of Action (JCPOA)”, Brussels, 6 August
                       2018, available online on the EU’s official website 1.)

                     2. The Unlawfulness of Extraterritorial Measures Adopted by
                                          the United States

                   15. In my opinion, the secondary sanctions announced by the
                 United States on 8 May, for implementation on 6 August and 4 Novem-
                 ber 2018, also have an extraterritorial scope in that they target nationals
                 and companies of third States continuing to maintain economic relations
                 with Iran. Those sanctions are illegal under international law.

                    16. First, one must examine the lawfulness of those measures in the
                 light of the principles of the Charter of the United Nations, before con-
                 sidering their compliance with World Trade Organization (WTO) law,
                 which may be regarded as a lex specialis. Next, I am not satisfied that the
                 extraterritorial sanctions in question can fall within the scope of Arti-
                 cle XX, paragraph 1 (d), of the Treaty of Amity, even prima facie. Nor
                 can they be justified in the light of other similar exceptions in interna-
                 tional law, such as that contained in Article XXI of the General Agree-
                 ment on Tariffs and Trade (GATT).

                   17. Turning to the first issue, in the case concerning Military and Para-
                 military Activities in and against Nicaragua (Nicaragua v. United States of
                 America), the Court analysed the 1956 Treaty of Friendship, Commerce
                 and Navigation concluded between Nicaragua and the United States,
                 which was modelled on the 1955 Treaty of Amity at issue in this case,
                 observing that:
                       “in view of the generally accepted formulations, the principle [of
                       non‑intervention] forbids all States or groups of States to intervene
                       directly or indirectly in internal or external affairs of other States. A
                       prohibited intervention must accordingly be one bearing on matters
                       in which each State is permitted, by the principle of State sovereignty,
                       to decide freely. One of these is the choice of a political, economic,
                       social and cultural system, and the formulation of foreign policy.
                       Intervention is wrongful when it uses methods of coercion in regard
                       to such choices, which must remain free ones.” (Merits, Judgment,
                       I.C.J. Reports 1986, p. 108, para. 205.)

                     1 Https://eeas.europa.eu/headquarters/headquarters-homepage/49141/joint-statement-

                 re-imposition-us-sanctions-due-its-withdrawal-joint-comprehensive-plan-action_en.

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                    18. The principle of non‑intervention is one of the corollaries of the
                 sovereign equality of States (I.C.J. Reports 1986, p. 106, para. 202).
                 Indeed, it is its first natural consequence. The adoption of such unilateral
                 measures, which openly seek to constrain, dissuade and discourage poten-
                 tially all third States, their nationals and companies from maintaining
                 trade relations with the primary target of those sanctions, constitutes a
                 violation of the principle of non‑intervention enshrined in General Assem-
                 bly resolution 2625 (XXV). The Court has already had occasion to note
                 the customary status of that principle:
                         “The Court has also emphasized the importance to be attached, in
                       other respects, . . . to General Assembly resolution 2625 (XXV) . . .
                       Texts like these, in relation to which the Court has pointed to the
                       customary content of certain provisions such as the principles of the
                       non‑use of force and non‑intervention, envisage the relations among
                       States having different political, economic and social systems on the
                       basis of coexistence among their various ideologies; the United States
                       not only voiced no objection to their adoption, but took an active
                       part in bringing it about.” (Ibid., p. 133, para. 264; emphasis added.)

                    19. The unilateral measures taken by the United States against Iran
                 seek strongly to discourage any State and its nationals, and any foreign
                 financial institutions, from maintaining relations with Iran. Indeed, they
                 are similar to the measures imposed by acts of US domestic legislation
                 adopted in 1996, such as the Helms‑Burton Act (against Cuba) and the
                 D’Amato‑Kennedy Act (against Iran and Libya). As in this case, the
                 scope and effects of the provisions contained in those acts were extra
                 territorial and led to the adoption of anti‑boycott laws by Canada and
                 the EU, whose businesses and nationals were affected (in Canada: the
                 Foreign Extraterritorial Measures Act (FEMA), Revised Statutes of Can-
                 ada (RSC), Chap. F‑29 (1985), amended on 9 October 1996, RSC,
                 Chap. 28, reprinted in International Legal Materials (ILM), Vol. 36,
                 Issue 1, p. 111 (1997); in the EU: Council Regulation (EC) No. 2271/96 of
                 22 November 1996 protecting against the effects of the extraterritorial
                 application of legislation adopted by a third country, and actions based
                 thereon or resulting therefrom, Official Journal (L. 309), p. 1, reprinted in
                 ILM, Vol. 36, Issue 1, p. 125 (1997)).

                   20. The aforementioned Helms‑Burton Act was also the subject of a
                 long series of General Assembly resolutions 2, the terms of which are very
                    2 See the United Nations General Assembly resolutions concerning the “Necessity of

                 ending the economic, commercial and financial embargo imposed by the United States
                 of America against Cuba”, adopted since 1992: resolutions 47/19 (1992), 48/16 (1993),
                 49/9 (1994), 50/10 (1995) and 51/17 (1996); 52/10 (1997), 53/4 (1998), 54/21 (1999),
                 55/20 (2000), 56/9 (2001), 57/11 (2002), 58/7 (2003), 59/11 (2004), 60/12 (2005), 61/11 (2006),
                 62/3 (2007), 63/7 (2008), 64/6 (2009), 65/6 (2010), 66/6 (2011), 67/4 (2012), 68/8 (2013),
                 69/5 (2014), 70/5 (2015), 71/5 (2016) and 72/4 (2017).

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                 clear. The General Assembly reaffirmed, “among other principles, the
                 sovereign equality of States, non‑intervention and non‑interference in their
                 internal affairs and freedom of international trade and navigation, which
                 are also enshrined in many international legal instruments”, and expressed

                     “[c]oncer[n] about the continued promulgation and application by
                     Member States of laws and regulations, such as that promulgated on
                     12 March 1996 known as ‘the Helms‑Burton Act’, the extraterritorial
                     effects of which affect the sovereignty of other States, the legitimate
                     interests of entities or persons under their jurisdiction and the freedom
                     of trade and navigation” (General Assembly resolution 72/4 of
                     1 November 2017, preamble; emphasis added).

                 It “[r]eiterate[d] its call upon all States to refrain from promulgating and
                 applying laws and measures of the kind referred to in the preamble to the
                 present resolution, in conformity with their obligations under the Charter
                 of the United Nations and international law, which, inter alia, reaffirm
                 the freedom of trade and navigation” (ibid., para. 2). The terms of para-
                 graph 2 are reproduced verbatim in the numerous other resolutions
                 adopted by the General Assembly since 1993, and could easily apply to
                 the sanctions against the nationals and companies of third States set out
                 in Sections 2, 3, 5 and 6 of US Executive Order 13846, dated 6 August
                 2018, reimposing “certain sanctions with respect to Iran [and its nation-
                 als]”. Juxtaposing the régime of extraterritorial sanctions in question with
                 the above‑mentioned jurisprudence of the Court, it is my view that those
                 sanctions serve as a constraint that aims to influence directly the choice of
                 sovereign States in formulating their external relations, which constitutes
                 a violation of the fundamental principle of non‑intervention, as enshrined
                 in the Charter of the United Nations.
                    21. General Assembly resolutions, officially recommendations, may
                 have a normative character through their “content and the conditions of
                 [their] adoption” (Legality of the Threat or Use of Nuclear Weapons, Advi-
                 sory Opinion, I.C.J. Reports 1996 (I), pp. 254‑255, para. 70). Moreover,
                 “a series of resolutions may show the gradual evolution of the opinio juris
                 required for the establishment of a new rule” (ibid.). As noted by the
                 Court,
                     “it would not be correct to assume that, because the General Assem-
                     bly is in principle vested with recommendatory powers, it is debarred
                     from adopting, in specific cases within the framework of its compe-
                     tence, resolutions which make determinations or have operative
                     design” (Legal Consequences for States of the Continued Presence of
                     South Africa in Namibia (South West Africa) notwithstanding Security
                     Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
                     p. 50, para. 105).

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                     22. In addition to the Charter of the United Nations, there may also be
                 doubts as to the compliance of the United States’ extraterritorial sanc-
                 tions with WTO law. First, it is to be noted that Iran is not a member of
                 the WTO; it has had observer status since 26 May 2005. Therefore, while
                 it cannot be said that there has been a breach of WTO law by the United
                 States against Iran, the possibility remains that the measures in question
                 could violate WTO law vis‑à‑vis any third party and member of that
                 organization maintaining trade relations with Iran. Furthermore, the EU
                 has already voiced its opposition to the sanctions and stated that it would
                 protect European institutions and economic operators by adopting block-
                 ing statutes against the United States. It should be added that in today’s
                 global economy, it is no longer possible to regard international and econom-
                 ic relations as a group of bilateral dealings. The international economic
                 system is a network and the deterioration of relations between A and
                 B will inevitably have repercussions for all participants. In the WTO
                 system, there is no difference between participant and trading partner.
                  Thus, when State A imposes sanctions against State B with an extrater-
                  ritorial effect which serves to dissuade State C from trading with State B,
                  and when State C refuses to comply and falls victim to the régime of sanc-
                  tions, but State D decides to adhere to the régime imposed by A, there is
                  a difference in the way States C and D are treated. This could constitute
                  a violation of the most‑favoured‑nation principle set out in Article I of
                  GATT. The measures in question also have the effect of curbing the EU’s
                  freedom to export to Iran and to import products of Iranian origin. As a
                  result, they may also lead to a violation of Article XI of GATT, which
                  provides for the general elimination of quantitative restrictions.

                    23. Several measures adopted by US Executive Order 13846 may be
                 described as “secondary boycott measures” intended to target economic
                 actors having trade relations with Iranian nationals or companies, Iran
                 itself being the subject of a primary boycott. Yet the fact that a State
                 imposes restrictions on its nationals or legal entities as part of its foreign
                 policy does not mean, a contrario, that it can act without any territorial
                 or personal ties, or prohibit relations between third States.

                   24. Lastly, it is important to consider whether and to what extent the
                 extraterritorial sanctions of the United States fall within the scope of
                 Article XX, paragraph 1 (d), of the Treaty of Amity. According to that
                 provision, the Treaty
                     “shall not preclude the application of measures . . . necessary to fulfill
                     the obligations of a High Contracting Party for the maintenance or
                     restoration of international peace and security, or necessary to protect
                     its essential security interests”.

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                 In its Judgment on the preliminary objection in the Oil Platforms case,
                 the Court noted that “the Treaty of 1955 contains no provision expressly
                 excluding certain matters from the jurisdiction of the Court” (Oil Plat-
                 forms (Islamic Republic of Iran v. United States of America), Preliminary
                 Objection, Judgment, I.C.J. Reports 1996 (II), p. 811, para. 20). The
                 Court then confirmed that Article XX, paragraph 1 (d), of the Treaty of
                 Amity does not bar the Court’s jurisdiction, but rather “is confined to
                 affording the Parties a possible defence on the merits” (ibid.). The ques-
                 tion whether the sanctions fall within the scope of that provision must be
                 considered from two perspectives. First, one must examine whether the
                 measures directly targeting Iran constitute an exception authorized by
                 Article XX, paragraph 1 (d), of the Treaty of Amity, before determining
                 whether the “secondary boycott” measures directed against third States
                 may be covered by the same provision.
                    25. Article XX opens with the phrase: “The present Treaty shall not
                 preclude.” It is, therefore, a “non‑prejudice clause”, listing the actions
                 which, by their nature, are exceptions which will not upset the operation
                 of the Treaty should one of the parties have recourse to them. As an
                 exception, this provision must be the subject of a restrictive interpreta-
                 tion. Article XX, paragraph 1 (d), naturally splits into two parts. Under
                 the first part, measures “necessary to fulfill . . . obligations . . . for the
                 maintenance or restoration of international peace and security” are per-
                 mitted. Such measures may be adopted only with the authorization of the
                 Security Council, which has primary responsibility for the maintenance of
                 international peace and security under Article 24 of the Charter, or, in the
                 case of self‑defence, with its subsequent consent. The second part autho-
                 rizes the adoption of measures “necessary to protect [the] essential secu-
                 rity interests [of the High Contracting Party]”. This second part may
                 appear to be a more general exception, but in my opinion it must be inter-
                 preted in an even more restrictive manner. As the Court recalled in the
                 case concerning Military and Paramilitary Activities in and against Nica-
                 ragua (Nicaragua v. United States of America), “whether a measure is
                 necessary to protect the essential security interests of a party is not . . .
                 purely a question for the subjective judgment of the party” (Merits, Judg-
                 ment, I.C.J. Reports 1986, p. 141, para. 282). States are entitled to provide
                 for their security and the protection of their essential interests within the
                 limits defined by international law.

                    26. The question to what extent the United States may make use of the
                 exception provided for by Article XX, paragraph 1 (d), of the Treaty of
                 Amity is closely linked to the possibility of recourse to the security excep-
                 tion set out in Article XXI of GATT. If we juxtapose the two provisions,
                 it is apparent that, under Article XXI of GATT, the General Agreement
                 is not to be construed “to prevent any contracting party from taking any
                 action which it considers necessary for the protection of its essential secu-

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                                   1955 treaty of amity (decl. momtaz)                      695

                 rity interests” (emphasis added), while Article XX, paragraph 1 (d), of
                 the Treaty of Amity merely speaks of “measures . . . necessary”. In the
                 case concerning Military and Paramilitary Activities in and against Nica-
                 ragua (Nicaragua v. United States of America), the Court said the follow-
                 ing of a similar clause:
                        “That the Court has jurisdiction to determine whether measures
                     taken by one of the Parties fall within such an exception, is also clear
                     a contrario from the fact that the text of Article XXI of the Treaty
                     does not employ the wording which was already to be found in Arti-
                     cle XXI of the General Agreement on Tariffs and Trade. This provi-
                     sion of GATT, contemplating exceptions to the normal
                     implementation of the General Agreement, stipulates that the Agree-
                     ment is not to be construed to prevent any contracting party from
                     taking any action which it ‘considers necessary for the protection of
                     its essential security interests’, in such fields as nuclear fission, arms,
                     etc. The 1956 Treaty, on the contrary, speaks simply of ‘necessary’
                     measures, not of those considered by a party to be such.” (Merits,
                     Judgment, I.C.J. Reports 1986, p. 116, para. 222.)
                    27. In the absence of an interpretation of this provision by the WTO’s
                 Dispute Settlement or Appellate Body, particular importance must be
                 attributed to the way in which Article XX, paragraph 1 (d), of the Treaty
                 of Amity is worded compared with Article XXI of GATT. As has just
                 been shown, the Court’s jurisprudence confirms that interpretation of the
                 text, which places the emphasis on the term “necessity”, in its objective
                 sense, and not the “measures . . . considered by [the] part[ies] to be
                 [necessary]”.
                    28. For all these reasons, I am of the opinion that the unilateral mea-
                 sures taken by the United States against the nationals and companies of
                 third States do not comply prima facie with the principle of non‑interven-
                 tion or WTO law, and that the United States cannot make use of the
                 exceptions provided by Article XX, paragraph 1 (d), of the Treaty of
                 Amity or by Article XXI of GATT.

                               3. The Public Order Mission of the Court

                    29. Finally, the dispute in this case not only risks affecting the entire
                 economy, banks and finance, civil aviation security and the humanitarian
                 needs of the Iranian population, it also poses a threat to peace and secu-
                 rity in the region. In point (3) of the operative part (Order, para. 102), the
                 Court indicated a provisional measure calling on both Parties to “refrain
                 from any action which might aggravate or extend the dispute before the
                 Court or make it more difficult to resolve”. This, however, is not suffi-
                 cient.
                    30. The heightened tensions between the Parties pose a serious threat
                 to international peace and security. In my opinion, it would have been

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                 desirable for the Court to go further. In the hope of achieving a concilia-
                 tory climate, the Court, as the principal judicial organ of the
                 United Nations, had a duty immediately to request that the Parties
                 respect their obligations under the Charter of the United Nations and
                 general international law. This power “flows from its responsibility for
                 the safeguarding of international law and from major considerations of
                 public order” (Legality of Use of Force (Yugoslavia v. Belgium), Provi-
                 sional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), dissenting
                 opinion of Judge Vereshchetin, p. 209). In so doing, the Court is acting
                 “as an organization functioning within the framework of the
                 United Nations and pursuing the common aim of peace” (ibid., dissenting
                 opinion of Judge Weeramantry, p. 198).

                    31. Under the terms of Article 24 of the Charter, the Security Council
                 has primary responsibility for the maintenance of international peace and
                 security, but it does not have exclusive responsibility. As the Court has
                 recalled on a number of occasions, “[t]he Council has functions of a polit-
                 ical nature assigned to it, whereas the Court exercises purely judicial func-
                 tions. Both organs can therefore perform their separate but complementary
                 functions with respect to the same events.” (Military and Paramilitary
                 Activities in and against Nicaragua (Nicaragua v. United States of Amer-
                 ica), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 435,
                 para. 95.)
                    32. In practice, the Court and the Security Council have on several
                 occasions been seised of the same dispute posing a threat to international
                 peace and security. This was true of the case concerning the Aegean Sea
                 Continental Shelf. Since the Security Council, by its resolution 395 (1976),
                 had already asked the Parties to that dispute “to do everything in their
                 power to reduce the present tensions in the area so that the negotiating
                 process may be facilitated” and called on them “to resume direct negotia-
                 tions over their differences”, the Court did not consider it necessary to
                 indicate provisional measures in its Order, and simply reminded the Par-
                 ties of the need to comply with that resolution (Aegean Sea Continental
                 Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976,
                 I.C.J. Reports 1976, p. 12, para. 38).
                    33. In his separate opinion appended to that Order, Judge Lachs
                 declared that the Court should “readily seize the opportunity of remind-
                 ing the member States concerned in a dispute referred to it of certain
                 obligations deriving from general international law or flowing from the
                 Charter” (ibid., separate opinion of Judge Lachs, p. 20). He further
                 observed that “[t]he pronouncements of the Council did not dispense the
                 Court, an independent judicial organ, from expressing its own view on
                 the serious situation in the disputed area” (ibid.). According to
                 Judge Lachs, the Court, in so doing,
                     “does not . . . arrogate any powers excluded by its Statute when,
                     otherwise than by adjudication, it assists, facilitates or contributes to

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                                  1955 treaty of amity (decl. momtaz)                       697

                     the peaceful settlement of disputes between States, if offered the occa-
                     sion at any stage of the proceedings” (I.C.J. Reports 1976, p. 20).

                 This is all the more relevant when, as is the case here, there is no Security
                 Council resolution. In other words, when the Security Council has not
                 had occasion to urge the parties to respect their obligations under the
                 Charter and general international law, it falls to the Court to do so, and
                 to fulfil its role in the maintenance of international peace and security.

                    34. This lacuna in the Court’s Order is all the more striking since Arti-
                 cle I of the Treaty of Amity provides that “[t]here shall be firm and endur-
                 ing peace” between the two contracting parties (Oil Platforms (Islamic
                 Republic of Iran v. United States of America), Preliminary Objection,
                 Judgment, I.C.J. Reports 1996 (II), p. 813, para. 27), some of whose
                 rights were judged plausible prima facie and at imminent risk of irrepa-
                 rable prejudice (Order, paras. 70 and 91). The Court has also had occa-
                 sion in its jurisprudence to remind the parties, at the provisional measures
                 stage, of their obligations under the Charter, and it is difficult to see why
                 that approach was not taken here. For example, in the case concerning
                 Request for Interpretation of the Judgment of 15 June 1962 in the Case
                 concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambo-
                 dia v. Thailand), the Court reminded the parties that:

                     “the Charter of the United Nations imposes an obligation on all
                     Member States of the United Nations to refrain in their international
                     relations from the threat or use of force against the territorial integrity
                     or political independence of any State, or in any other manner incon-
                     sistent with the purposes of the United Nations; whereas the Court
                     further recalls that United Nations Member States are also obliged
                     to settle their international disputes by peaceful means in such a man-
                     ner that international peace and security, and justice, are not endan-
                     gered; and whereas both Parties are obliged, by the Charter and
                     general international law, to respect these fundamental principles of
                     international law” (Provisional Measures, Order of 18 July 2011,
                     I.C.J. Reports 2011 (II), p. 554, para. 66).

                    35. In the words of Robert Kolb, “[t]he principal aim of establishing
                 a court of justice is to contribute to the peaceful resolution of disputes,
                 i.e. to ensure that tensions are diminished and that the dispute is
                 directed towards a rational means of settlement” (R. Kolb, La Cour
                 internationale de Justice, Paris, Pedone, 2013, p. 636). In my view, provi-
                 sional measures are intended to ease tensions between the parties and to
                 preserve the utility of the proceedings. In indicating provisional measures,
                 the Court cannot lose sight of the fact that it is exercising its exceptional
                 power both to protect the rights of the parties and the integrity of its

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                 judicial function, and to safeguard the fundamental nature of its remit to
                 act in the public interest (R. Kolb, La Cour internationale de Justice,
                 Paris, Pedone, 2013, p. 637).

                    36. In conclusion, it would have been desirable for the Court to have
                 directly called on the Parties to respect their obligations under the Char-
                 ter, including the obligations deriving from resolution 2231 (2015) and
                 general international law, not only to avoid an aggravation of the situa-
                 tion but to re‑establish and preserve international peace and security in
                 the region.

                 (Signed) Djamchid Momtaz.

                                                                                79

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INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

ORDER OF 28 AUGUST 2001

2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES PLATES-FORMES PÉTROLIÈRES

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D'AMÉRIQUE)

ORDONNANCE DU 28 AOÛT 2001
Official citation:
Oil Platforms (Islamic Republic of Iran
v. United States of America), Order of 28 August 2001,
ILC J. Reports 2001, p. 568

Mode officiel de citation:

Plates-formes pétrolières (République islamique d'Iran
c. Etats-Unis d’ Amérique), ordonnance du 28 août 2001,
CI.J. Recueil 2001, p. 568

Sales number
ISSN 0074-4441 N° de vente: S25

ISBN 92-1-070924-1

28 AUGUST 2001

ORDER

OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN vy. UNITED STATES
OF AMERICA)

PLATES-FORMES PETROLIERES

(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
D’AMERIQUE)

28 AOUT 2001
ORDONNANCE
568

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2001 2001
28 août
Rôle général
28 août 2001 n° 90

AFFAIRE DES PLATES-FORMES PÉTROLIÈRES

(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
D’AMERIQUE)

ORDONNANCE

Le vice-président de la Cour internationale de Justice,

Vu larticle 48 du Statut de la Cour et les articles 13, 44 et 80 de son
Règlement,

Vu la requête déposée au Greffe de la Cour le 2 novembre 1992, par
laquelle la République islamique d’Iran a introduit une instance contre
les Etats-Unis d'Amérique au sujet d’un différend

«a[yant] pour origine l’attaque et la destruction de trois installations
de production pétrolière offshore, propriété de la compagnie natio-
nale iranienne des pétroles et exploitées par elle à des fins commer-
ciales, par plusieurs navires de guerre de la marine des Etats-Unis,
les 19 octobre 1987 et 18 avril 1988, respectivement»,

Vu lordonnance du 4 décembre 1992, par laquelle le président de la
Cour a fixé les dates d’expiration des délais pour le dépôt d’un mémoire
de l’Iran et d’un contre-mémoire des Etats-Unis, et l’ordonnance du
3 juin 1993 par laquelle il a reporté ces dates,

Vu le mémoire déposé par l’Iran et l’exception préliminaire présentée
par les Etats-Unis dans les délais ainsi prorogés,

Vu l’arrêt du 12 décembre 1996, par lequel la Cour a statué sur l’excep-
tion préliminaire soulevée par les Etats-Unis,

Vu l’ordonnance du 16 décembre 1996, par laquelle le président de la
Cour a fixé la date d'expiration d’un nouveau délai pour le dépôt du
contre-mémoire des Etats-Unis,
PLATES-FORMES PÉTROLIÈRES (ORDONNANCE 28 VIII 01) 569

Vu le contre-mémoire déposé par les Etats-Unis dans le nouveau délai
ainsi fixé, et la demande reconventionnelle qui y était présentée,

Vu l’ordonnance datée du 10 mars 1998, par laquelle la Cour a dit que
la demande reconventionnelle présentée par les Etats-Unis était recevable
comme telle et faisait partie de l’instance en cours, a prescrit la présenta-
tion d’une réplique de l'Iran et d’une duplique des Etats-Unis portant sur
les demandes soumises par les deux Parties et a fixé, respectivement, au
10 septembre 1998 et au 23 novembre 1999 les dates d'expiration des
délais pour le dépôt de ces pièces,

Vu les ordonnances du 26 mai 1998 et du 8 décembre 1998, par les-
quelles les dates d’expiration des délais pour le dépôt de la réplique de
l’Iran et la duplique des Etats-Unis ont été reportées, respectivement, au
10 décembre 1998 et au 23 mai 2000, puis au 10 mars 1999 et au
23 novembre 2000,

Vu l’ordonnance du 4 septembre 2000, par laquelle le président de la
Cour a reporté au 23 mars 2001 la date d’expiration du délai pour le
dépôt de la duplique des Etats-Unis,

Vu la réplique déposée par l'Iran et la duplique déposée par les Etats-
Unis dans les délais ainsi prorogés;

Considérant que, par une lettre datée du 30 juillet 2001 et reçue au
Greffe le 7 août 2001, l’agent de l'Iran, se référant à l’ordonnance rendue
par la Cour le 10 mars 1998, a fait savoir à la Cour que son gouverne-
ment souhaitait s'exprimer une seconde fois par écrit sur la demande
reconventionnelle des Etats-Unis, dans une pièce additionnelle, et a pro-
posé que la date d’expiration du délai pour le dépôt de cette pièce soit
fixée au 23 septembre 2001;

Considérant que, par une lettre datée du 16 août 2001 et reçue au
Greffe le 21 août 2001, l’agent des Etats-Unis a informé la Cour que son
gouvernement ne voyait d’objections ni à la demande de l'Iran de s’expri-
mer une seconde fois par écrit sur la demande reconventionnelle des
Etats-Unis, dans une pièce additionnelle, ni à la date proposée par l'Iran
pour le dépôt d’une telle pièce, et a précisé que les Etats-Unis se réser-
vaient le droit de prier la Cour de leur donner la possibilité de répondre,
le cas échéant, aux arguments présentés par l’Iran dans cette pièce;

Considérant que, dans son ordonnance susvisée du 10 mars 1998, la
Cour, après avoir indiqué qu’elle estimait nécessaire le dépôt d’une
réplique par l'Iran et d’une duplique par les Etats-Unis, portant sur
les demandes soumises par les deux Parties, a ajouté ce qui suit:

«il échet en outre, aux fins d’assurer une stricte égalité entre les
Parties, de réserver le droit, pour l'Iran, de s'exprimer une seconde
fois par écrit sur la demande reconventionnelle des Etats-Unis, dans
une pièce additionnelle dont la présentation pourrait faire l’objet
d’une ordonnance ultérieure » ;
PLATES-FORMES PÉTROLIÈRES (ORDONNANCE 28 VIII 01) 570

Compte tenu de l’accord des Parties,

Autorise la présentation par la République islamique d’Iran d’une
pièce additionnelle portant exclusivement sur la demande reconvention-
nelle soumise par les Etats-Unis d'Amérique;

Fixe au 24 septembre 2001 la date d'expiration du délai pour le dépôt
de cette pièce;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt-huit août deux mille un, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République islamique
d’Iran et au Gouvernement des Etats-Unis d'Amérique.

Le vice-président,
(Signé) Sui Jiuyong.
Le greffier,
(Signé) Philippe COUVREUR.