                          INTERNATIONAL COURT OF JUSTICE

                           REPORTS OF JUDGMENTS,
                        ADVISORY OPINIONS AND ORDERS

                        CERTAIN IRANIAN ASSETS
                   (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                 OF AMERICA)

                            PRELIMINARY OBJECTIONS

                         JUDGMENT OF 13 FEBRUARY 2019

                                 2019
                          COUR INTERNATIONALE DE JUSTICE

                             RECUEIL DES ARRÊTS,
                      AVIS CONSULTATIFS ET ORDONNANCES

                       CERTAINS ACTIFS IRANIENS
                   (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                  D’AMÉRIQUE)

                           EXCEPTIONS PRÉLIMINAIRES

                            ARRÊT DU 13 FÉVRIER 2019

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                                                 Official citation :
                       Certain Iranian Assets (Islamic Republic of Iran v. United States of
                      America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7

                                            Mode officiel de citation :
                        Certains actifs iraniens (République islamique d’Iran c. Etats-Unis
                      d’Amérique), exceptions préliminaires, arrêt, C.I.J. Recueil 2019, p. 7

                                                                                1158
                                                                 Sales number
                   ISSN 0074-4441                                No de vente :
                   ISBN 978-92-1-157360-2

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                                                     13 FEBRUARY 2019

                                                        JUDGMENT

                            CERTAIN IRANIAN ASSETS
                   (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                 OF AMERICA)
                            PRELIMINARY OBJECTIONS

                           CERTAINS ACTIFS IRANIENS
                   (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                  D’AMÉRIQUE)
                           EXCEPTIONS PRÉLIMINAIRES

                                                      13 FÉVRIER 2019

                                                          ARRÊT

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                   7

                                            TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure	                                         1-17
                       I. Factual Background	                                          18-27
                   II. Jurisdiction	                                                   29-99
                         A. First objection to jurisdiction 	                          38-47
                         B. Second objection to jurisdiction	                          48-80
                            1. Article IV, paragraph 2, of the Treaty	                 53-58
                            2. Article XI, paragraph 4, of the Treaty 	                59-65
                            3. Article III, paragraph 2, of the Treaty 	               66-70
                            4. Article IV, paragraph 1, of the Treaty 	                71-74
                            5. Article X, paragraph 1, of the Treaty 	                 75-79
                         C. Third objection to jurisdiction	                           81-97
                         D. General conclusion on the jurisdiction of the Court	       98-99
                   III. Admissibility	                                               100-125
                         A. Abuse of process	                                        107-115
                         B. “Unclean hands”	                                         116-124
                   Operative Clause	                                                     126

                   4

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                    8

                                    INTERNATIONAL COURT OF JUSTICE

         2019
                                                      YEAR 2019
     13 February
     General List                                  13 February 2019
       No. 164

                                    CERTAIN IRANIAN ASSETS
                             (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                           OF AMERICA)

                                          PRELIMINARY OBJECTIONS

                        Factual background.

                                                            *
                       Jurisdiction — Article XXI (2) of the 1955 Treaty of Amity, Economic Rela-
                    tions, and Consular Rights (hereinafter the “Treaty”).
                       Not contested that Treaty in force at date of Application and that several of
                    conditions in Article XXI (2) of Treaty are met — Dispute has arisen between
                    Iran and United States — Has not been possible to adjust that dispute by diplo-
                    macy — No agreement to settle dispute by some other pacific means.

                       Parties disagree on whether dispute is one “as to the interpretation or applica-
                    tion” of Treaty — Court observes that a particular dispute often arises in context
                    of broader disagreement between parties — Court must ascertain whether acts
                    complained of fall within provisions of Treaty and whether, as a consequence, dis-
                    pute is one which the Court has jurisdiction ratione materiae to entertain.

                                                            *
                      First objection to jurisdiction: Iran’s claims arising from measures taken by
                    United States to block Iranian assets pursuant to Executive Order 13599.

                       Question whether blocking measures fall outside scope of Treaty by virtue of
                    Article XX (1) (c), which states that Treaty shall not preclude measures regulating
                    production or traffic in arms, ammunition and implements of war, and Arti-
                    cle XX (1) (d), which states that Treaty shall not preclude measures necessary to

                    5

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                   9 	                   certain iranian assets (judgment)

                   protect essential security interests — Court has previously observed that Treaty
                   contains no provision expressly excluding certain matters from its jurisdiction —
                   Court has previously considered that Article XX (1) (d) did not restrict jurisdic-
                   tion but was confined to affording a possible defence on the merits — No reason
                   for Court to depart from earlier findings — Same interpretation applies to Arti-
                   cle XX (1) (c) — First objection to jurisdiction rejected.

                                                             *
                       Second objection to jurisdiction : Iran’s claims concerning sovereign immunities.

                     Question whether claims predicated on purported failure to accord sovereign
                   immunity are outside Court’s jurisdiction — Court examines provisions of the
                   Treaty on which Iran relies to ascertain whether question of sovereign immunities
                   can be considered as falling within scope of Treaty.

                      Article IV (2), which guarantees protection and security to property of nation-
                   als and companies of either State in no case less than that required by international
                   law — Meaning of phrase “required by international law” — Viewed in light of
                   object and purpose of Treaty, the “international law” in question is that which
                   defines minimum standard of protection for property belonging to “nationals” and
                   “companies” of one Party engaging in economic activities within territory of the
                   other — Context of Article IV indicates that purpose of this provision is to guar-
                   antee rights and protections of natural persons and legal entities engaged in com-
                   mercial activities — Provision does not incorporate customary rules on sovereign
                   immunities.

                      Article XI (4), which excludes from sovereign immunity publicly owned or con-
                   trolled enterprises of either Party engaging in commercial or industrial activities
                   within territory of other Party — Provision does not affect sovereign immunities
                   under customary international law by State entities when they engage in activities
                   jure imperii — Provision does not implicitly guarantee, through an a contrario
                   interpretation, sovereign immunity of public entities engaged in activities jure impe-
                   rii — Object and purpose of Treaty support this interpretation — Provision does
                   not incorporate sovereign immunities.

                      Article III (2), which guarantees freedom of access to courts of other State on
                   terms no less favourable than those applicable to nationals and companies of third
                   States — Not linked to sovereign immunities because breach of international law
                   on sovereign immunities would not be capable of having impact on compliance with
                   Article III (2) — Provision not seeking to guarantee substantive or procedural
                   rights that a company might intend to pursue before courts — Nothing in ordinary
                   meaning of provision, in its context and in light of object and purpose of the Treaty,
                   to suggest that it entails an obligation to uphold sovereign immunities.

                     Article IV (1), which concerns fair and equitable treatment of nationals and
                   companies of both Parties, and prohibits unreasonable or discriminatory mea-

                   6

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                    10 	                 certain iranian assets (judgment)

                    sures — Similar reasoning as for Article IV (2) — Provision does not include an
                    obligation to respect sovereign immunities.

                       Article X (1), which provides for freedom of commerce and navigation — Court
                    has previously ruled that “commerce” in Article X (1) includes commercial
                    exchanges in general, not limited to acts of purchase or sale, and covers a wide
                    range of ancillary matters — Nevertheless, cannot cover matters having no or too
                    tenuous connection with commercial relations between Parties — Violation of sov-
                    ereign immunities to which certain State entities are said to be entitled in exercise
                    of activities jure imperii not capable of impeding freedom of commerce and thus
                    does not fall within scope of this provision.

                       Claims based on alleged violations of sovereign immunities do not fall within
                    scope of Treaty’s compromissory clause and Court lacks jurisdiction to consider
                    them — Second objection to jurisdiction upheld.

                                                              *
                      Third objection to jurisdiction : Iran’s claims alleging violations of Articles III,
                    IV and V of the Treaty in relation to Bank Markazi.

                       Rights and protections guaranteed by Articles III, IV and V to “companies” of
                    a Contracting Party — Definition of “company” in Article III (1) — Entity must
                    have its own legal personality, conferred on it by law of the State where it was cre-
                    ated — Definition makes no distinction between private and public enterprises —
                    Bank Markazi endowed with its own legal personality by Iran’s Monetary and
                    Banking Act — Fact that Bank Markazi wholly owned by Iran does not, in itself,
                    exclude it from category of “companies” within meaning of Treaty.

                       Definition of “company” in Article III (1) to be read in context and in light of
                    object and purpose of Treaty — Treaty is aimed at affording protections to com-
                    panies engaging in activities of a commercial nature — Question whether Bank
                    Markazi is a “company” to be determined by reference to nature of its activi-
                    ties — Entity carrying out exclusively sovereign activities cannot be characterized
                    as a “company” — Nothing to preclude a single entity from engaging in both com-
                    mercial and sovereign activities.

                       Question of nature of activities of Bank Markazi in the United States — Iran’s
                    Monetary and Banking Act not discussed in detail by Parties — Court does not
                    have before it all facts necessary to determine whether Bank Markazi’s activities
                    at relevant time would lead to its characterization as a “company” within meaning
                    of Treaty — Elements largely of factual nature and closely linked to merits —
                    Third objection to jurisdiction does not possess, in circumstances of the case, an
                    exclusively preliminary character.

                                                              *
                      Objections to admissibility : Abuse of process and “unclean hands”.
                      Abuse of process — Initially characterized as “abuse of right” by
                    United States —Recharacterization as “abuse of process” during oral proceedings

                    7

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                    11 	                  certain iranian assets (judgment)

                    does not constitute new objection — Court should reject claim based on valid title
                    of jurisdiction on grounds of abuse of process only in exceptional circumstances —
                    No exceptional circumstances in the present case.

                       “Unclean hands” — Court notes that the United States has not argued that Iran
                    has violated Treaty — Without having to take a position on the “clean hands”
                    doctrine, even if it were shown that Applicant’s conduct was not beyond reproach,
                    this would not be sufficient per se to uphold “unclean hands” objection to admis-
                    sibility — Conclusion without prejudice to question whether United States’ allega-
                    tions could eventually provide a defence on merits.

                        Objections to admissibility rejected.

                                                       JUDGMENT

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

                        In the case concerning certain Iranian assets,
                        between
                    the Islamic Republic of Iran,
                    represented by
                      Mr. Mohsen Mohebi, International Law Adviser to the President of the
                         Islamic Republic of Iran and Head of the Centre for International Legal
                         Affairs, Associate Professor of Public International Law and Arbitration at
                         the Azad University, Science and Research Branch, Tehran,
                      as Agent, Counsel and Advocate ;
                      Mr. Mohammad H. Zahedin Labbaf, Agent of the Islamic Republic of Iran
                         to the Iran‑US Claims Tribunal, Director of the Centre for International
                         Legal Affairs of the Islamic Republic of Iran, The Hague,

                        as Co-Agent and Counsel ;
                        Mr. Vaughan Lowe, QC, member of the English Bar, Essex Court Chambers,
                            Emeritus Professor of International Law, University of Oxford, member of
                            the Institut de droit international,
                        Mr. Alain Pellet, Emeritus Professor at the University Paris Nanterre, former
                           member and 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, member
                            of the Paris Bar, Sygna Partners,
                        Mr. Samuel Wordsworth, QC, member of the English Bar, member of the
                            Paris Bar, Essex Court Chambers,

                    8

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                    12 	                 certain iranian assets (judgment)

                        Mr. Sean Aughey, member of the English Bar, 11KBW,
                        Mr. Luke Vidal, member of the Paris Bar, Sygna Partners,
                        Ms Philippa Webb, Associate Professor at King’s College London, member
                           of the English Bar, member of the New York Bar, 20 Essex Street Cham-
                           bers,
                        as Counsel and Advocates ;
                        Mr. Jean‑Rémi de Maistre, PhD candidate, Centre de droit international de
                           Nanterre,
                        Mr. Romain Piéri, member of the Paris Bar, Sygna Partners,
                        as Counsel ;
                        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,
                        Mr. Ebrahim Beigzadeh, Senior Legal Adviser to the Centre for International
                           Legal Affairs of the Islamic Republic of Iran, Professor of Public Interna-
                           tional Law at Shahid Beheshti University,
                        Mr. Mahdad Fallah Assadi, Legal Adviser to the Centre for International
                           Legal Affairs of the Islamic Republic of Iran,
                        Mr. Mohammad Jafar Ghanbari Jahromi, Deputy Head of the Centre for
                           International Legal Affairs of the Islamic Republic of Iran, Associate Pro-
                           fessor of Public International Law at Shahid Beheshti University,
                        Mr. Mohammad H. Latifian, Legal Adviser to the Centre for International
                           Legal Affairs of the Islamic Republic of Iran,
                        as Legal Advisers,
                        and
                    the United States of America,
                    represented by
                      Mr. Richard C. Visek, Principal Deputy Legal Adviser, United States Depart-
                         ment of State,
                      as Agent, Counsel and Advocate ;
                      Mr. Paul B. Dean, Legal Counselor, United States Embassy in the Kingdom
                         of the Netherlands,
                      Mr. David M. Bigge, Deputy Legal Counselor, United States Embassy in the
                         Kingdom of the Netherlands,
                      as Deputy Agents and Counsel ;
                      Sir Daniel Bethlehem, QC, member of the English Bar, 20 Essex Street Cham-
                         bers,
                      Ms Laurence Boisson de Chazournes, Professor of International Law, Uni-
                         versity of Geneva, associate member of the Institut de droit international,
                      Mr. Donald Earl Childress III, Counselor on International Law, United States
                         Department of State,
                      Ms Lisa J. Grosh, Assistant Legal Adviser, United States Department of
                         State,
                      Mr. John D. Daley, Deputy Assistant Legal Adviser, United States Depart-
                         ment of State,
                      Ms Emily J. Kimball, Attorney Adviser, United States Department of State,

                    9

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                    13 	                certain iranian assets (judgment)

                      as Counsel and Advocates ;
                      Ms Terra L. Gearhart‑Serna, Attorney Adviser, United States Department of
                         State,
                      Ms Catherine L. Peters, Attorney Adviser, United States Department of
                         State,
                      Ms Shubha Sastry, Attorney Adviser, United States Department of State,

                      Mr. Niels A. Von Deuten, Attorney Adviser, United States Department of
                         State,
                      as Counsel ;
                      Mr. Guillaume Guez, Assistant, University of Geneva, Faculty of Law,
                      Mr. John R. Calopietro, Paralegal Supervisor, United States Department of
                         State,
                      Ms Mariama N. Yilla, Paralegal, United States Department of State,

                      Ms Abby L. Lounsberry, Paralegal, United States Department of State,

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

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :
                       1. On 14 June 2016, the Government of the Islamic Republic of Iran (herein-
                    after “Iran”) filed in the Registry of the Court an Application instituting pro-
                    ceedings against the United States of America (hereinafter the “United States”)
                    with regard to a dispute concerning alleged violations by the United States 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 “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 Treaty of Amity.
                       3. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
                    immediately communicated to the Government of the United States ; and, in
                    accordance with paragraph 3 of that Article, all States entitled to appear before
                    the Court were notified of the filing of the Application.
                       4. By letters dated 23 June 2016, the Registrar informed both Parties that the
                    Member of the Court of United States nationality, referring to Article 24, para-
                    graph 1, of the Statute, had notified the Court of her intention not to participate
                    in the decision of the case. Pursuant to Article 31 of the Statute and Article 37,
                    paragraph 1, of the Rules of Court, the United States chose Mr. David Caron
                    to sit as judge ad hoc in the case. Judge Caron having passed away on 20 Febru-
                    ary 2018, the United States chose Mr. Charles Brower to sit as judge ad hoc in
                    the case.

                    10

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                    14 	                certain iranian assets (judgment)

                        5. Since the Court included upon the Bench no judge of Iranian nationality,
                    Iran proceeded to exercise the right conferred upon it by Article 31, paragraph 2,
                    of the Statute to choose a judge ad hoc to sit in the case ; it chose Mr. Djam-
                    chid Momtaz.
                        6. By an Order dated 1 July 2016, the Court fixed 1 February 2017 and
                    1 September 2017 as the respective time‑limits for the filing of a Memorial by
                    Iran and a Counter‑Memorial by the United States. The Memorial of Iran was
                    filed within the time‑limit thus prescribed.
                        7. By a letter dated 30 March 2017, the United States, invoking Article 49 of
                    the Statute and Articles 50 and 62 of the Rules, requested that the Court call
                    upon Iran to produce, or arrange for the United States to have access to, “cer-
                    tain documents relevant to the claims Iran ha[d] asserted against the
                    United States, which [had] not [been] included in the Annexes to Iran’s Memo-
                    rial, and to which the United States lack[ed] access”, in particular pleadings and
                    related documents that had been filed confidentially with the United States Dis-
                    trict Court for the Southern District of New York in the Deborah Peterson et
                    al. v. Islamic Republic of Iran case (hereinafter, the “Peterson case”).
                        By a second letter dated 30 March 2017, the United States requested that the
                    Court extend the time‑limit for the filing of preliminary objections to 16 June
                    2017 or a date not less than 45 days after the United States obtained the docu-
                    ments from the Peterson case.
                        By a letter dated 12 April 2017, Iran objected to these two requests.
                        By letters dated 19 April 2017, the Registrar informed the Parties that, at that
                    stage of the proceedings, the Court had decided not to use its powers under
                    Article 49 of the Statute to call upon Iran to produce the documents from the
                    Peterson case, and that, consequently, it had also decided to reject the request
                    for an extension of the time-limit for the filing of preliminary objections.
                        By letter dated 1 May 2017, the United States informed the Court that it
                    would petition the federal court concerned to obtain access to the requested
                    documents in the Peterson case and that it would seek to present to the Court
                    any additional relevant material.
                        8. On 1 May 2017, within the time‑limit prescribed by Article 79, para-
                    graph 1, of the Rules, the United States presented preliminary objections to the
                    admissibility of the Application and the jurisdiction of the Court. Consequently,
                    by an Order of 2 May 2017, the President of the Court, noting that, by virtue of
                    Article 79, paragraph 5, of the Rules, the proceedings on the merits were sus-
                    pended, fixed 1 September 2017 as the time‑limit within which Iran could pres-
                    ent a written statement of its observations and submissions on the preliminary
                    objections raised by the United States. Iran filed such a statement within the
                    time‑limit so prescribed, and the case thus became ready for hearing in respect
                    of the preliminary objections.
                        9. By letter dated 24 August 2017, the United States informed the Court that
                    the federal court in the Peterson case had directed the parties to file public ver-
                    sions of the documents to which it had sought access (see paragraph 7 above),
                    and announced its intention to file these public versions with the Court, adding
                    that they would constitute publications “readily available” within the meaning
                    of Article 56, paragraph 4, of the Rules.
                        By letter dated 30 August 2017, Iran noted the content of the United States’
                    letter of 24 August 2017 and indicated that it wished to reserve all its rights, in
                    particular its right “to respond to any application by the United States to intro-
                    duce new evidence and/or written submissions commenting upon evidence, out-
                    side the timetable fixed by the Court”.

                    11

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                    15 	                certain iranian assets (judgment)

                       On 19 September 2017, the United States filed certain documents from the
                    Peterson case, which had been made public on 31 August 2017. In an accompa-
                    nying letter, the United States indicated that these documents were available on
                    the website of the federal court concerned and that they would also be published
                    on the website of the United States Department of State.
                       By letter dated 16 October 2017, Iran objected to the filing of the documents
                    from the Peterson case, arguing that the United States had acted in violation of
                    Article 79, paragraphs 3 to 8, of the Rules of Court and that these documents
                    were not publicly available.
                       By letter dated 3 November 2017, the United States confirmed that it had
                    placed the documents from the Peterson case on the website of the United
                    States Department of State.
                       10. By letter dated 3 October 2018, the United States indicated that it consid-
                    ered it necessary to include four new documents in the case file. Given the nature
                    of the said documents and the absence of objection from Iran, the Court decided
                    to grant the United States’ request.
                       11. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascer-
                    taining the views of the Parties, decided that copies of the written pleadings,
                    including the Memorial of Iran, and the documents annexed would be made
                    accessible to the public on the opening of the oral proceedings.
                       12. Public hearings on the preliminary objections raised by the United States
                    were held from 8 to 12 October 2018, at which the Court heard the oral argu-
                    ments and replies of :
                    For the United States: Mr. Richard C. Visek,
                                            Ms Lisa J. Grosh,
                                            Sir Daniel Bethlehem,
                                            Ms Emily J. Kimball,
                                            Mr. John D. Daley,
                                            Ms Laurence Boisson de Chazournes,
                                            Mr. Donald Earl Childress III.
                    For Iran:               Mr. Mohsen Mohebi,
                                            Mr. Luke Vidal,
                                            Mr. Vaughan Lowe,
                                            Ms Philippa Webb,
                                            Mr. Jean-Marc Thouvenin,
                                            Mr. Samuel Wordsworth,
                                            Mr. Sean Aughey,
                                            Mr. Alain Pellet.

                                                            *
                       13. In the Application, the following claims were made by the Islamic Repub-
                    lic of Iran :
                           “On the basis of the foregoing, and while reserving the right to supple-
                         ment, amend or modify the present Application in the course of further
                         proceedings in the case, Iran respectfully requests the Court to adjudge,
                         order and declare as follows :
                         (a) That the Court has jurisdiction under the Treaty of Amity to entertain
                             the dispute and to rule upon the claims submitted by Iran ;

                    12

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                    16 	                certain iranian assets (judgment)

                         (b) That by its acts, including the acts referred to above and in particular
                             its (a) failure to recognise the separate juridical status (including the
                             separate legal personality) of all Iranian companies including Bank
                             Markazi, and (b) unfair and discriminatory treatment of such entities,
                             and their property, which impairs the legally acquired rights and inter-
                             ests of such entities including enforcement of their contractual rights,
                             and (c) failure to accord to such entities and their property the most
                             constant protection and security that is in no case less than that required
                             by international law, (d) expropriation of the property of such entities,
                             and (e) failure to accord to such entities freedom of access to the US
                             courts, including the abrogation of the immunities to which Iran and
                             Iranian State‑owned companies, including Bank Markazi, and their
                             property, are entitled under customary international law and as required
                             by the Treaty of Amity, and (f) failure to respect the right of such
                             entities to acquire and dispose of property, and (g) application of
                             restrictions to such entities on the making of payments and other trans-
                             fers of funds to or from the USA, and (h) interference with the freedom
                             of commerce, the USA has breached its obligations to Iran, inter alia,
                             under Articles III (1), III (2), IV (1), IV (2), V (1), VII (1) and X (1) of
                             the Treaty of Amity;

                         (c) That the USA shall ensure that no steps shall be taken based on the
                             executive, legislative and judicial acts (as referred to above) at issue in
                             this case which are, to the extent determined by the Court, inconsistent
                             with the obligations of the USA to Iran under the Treaty of Amity ;

                         (d) That Iran and Iranian State‑owned companies are entitled to immunity
                             from the jurisdiction of the US courts and in respect of enforcement
                             proceedings in the USA, and that such immunity must be respected by
                             the USA (including US courts), to the extent established as a matter of
                             customary international law and required by the Treaty of Amity ;
                         (e) That the USA (including the US courts) is obliged to respect the jurid-
                             ical status (including the separate legal personality), and to ensure free-
                             dom of access to the US courts, of all Iranian companies, including
                             State‑owned companies such as Bank Markazi, and that no steps based
                             on the executive, legislative and judicial acts (as referred to above),
                             which involve or imply the recognition or enforcement of such acts shall
                             be taken against the assets or interests of Iran or any Iranian entity or
                             national ;

                         (f) That the USA is under an obligation to make full reparations to 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 introduce and present to the Court in due
                             course a precise evaluation of the reparations owed by the USA ; and

                         (g) Any other remedy the Court may deem appropriate.”
                      14. In the written proceedings on the merits, the following submissions were
                    presented on behalf of the Government of the Islamic Republic of Iran in its
                    Memorial :

                    13

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                    17 	                certain iranian assets (judgment)

                            “On the basis of the foregoing, and reserving its right to supplement,
                         amend or modify the present request for relief in the course of the proceed-
                         ings in this case, Iran respectfully requests the Court to adjudge, order and
                         declare :
                         (a) That the United States’ international responsibility is engaged as fol-
                             lows :
                               (i) That by its acts, including the acts referred to above and in par-
                                   ticular its failure to recognise the separate juridical status (includ-
                                   ing the separate legal personality) of all Iranian companies
                                   including Bank Markazi, the United States has breached its obli-
                                   gations to Iran, inter alia, under Article III (1) of the Treaty of
                                   Amity ;
                              (ii) That by its acts, including the acts referred to above and in par-
                                   ticular its: (a) unfair and discriminatory treatment of such entities,
                                   and their property, which impairs the legally acquired rights and
                                   interests of such entities including enforcement of their contractual
                                   rights, and (b) failure to accord to such entities and their property
                                   the most constant protection and security that is in no case less
                                   than that required by international law, and (c) expropriation of
                                   the property of such entities, and its failure to accord to such enti-
                                   ties freedom of access to the U.S. courts, including the abrogation
                                   of the immunities to which Iran and Iranian State-owned compa-
                                   nies, including Bank Markazi, and their property, are entitled
                                   under customary international law and as required by the
                                   1955 Treaty of Amity, and (d) failure to respect the right of such
                                   entities to acquire and dispose of property, the United States has
                                   breached its obligations to Iran, inter alia, under Articles III (2),
                                   IV (1), IV (2), V (1) and XI (4) of the Treaty of Amity ;

                             (iii) That by its acts, including the acts referred to above and in par-
                                   ticular its: (a) application of restrictions to such entities on the
                                   making of payments and other transfers of funds to or from the
                                   United States, and (b) interference with the freedom of commerce,
                                   the United States has breached its obligations to Iran, inter alia,
                                   under Articles VII (1) and X (1) of the Treaty of Amity ;

                         (b) That the United States shall cease such conduct and provide Iran with
                             an assurance that it will not repeat its unlawful acts ;
                         (c) That the United States shall ensure that no steps shall be taken based
                             on the executive, legislative and judicial acts (as referred to above) at
                             issue in this case which are, to the extent determined by the Court,
                             inconsistent with the obligations of the United States to Iran under the
                             1955 Treaty of Amity ;
                         (d) That the United States shall, by enacting appropriate legislation, or by
                             resorting to other methods of its choosing, ensure that the decisions of
                             its courts and those of other authorities infringing the rights, including
                             respect for the juridical status of Iranian companies, and the entitle-
                             ment to immunity which Iran and Iranian State‑owned companies,
                             including Bank Markazi, enjoy under the 1955 Treaty of Amity and
                             international law cease to have effect ;

                    14

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                    18 	                certain iranian assets (judgment)

                         (e) That Iran and Iranian State-owned companies are entitled to immunity
                             from the jurisdiction of the U.S. courts and in respect of enforcement
                             proceedings in the United States, and that such immunity must be
                             respected by the United States (including the U.S. courts), to the extent
                             required by the 1955 Treaty of Amity and international law ;
                         (f) That the United States (including the U.S. courts) is obliged to respect
                             the juridical status (including the separate legal personality), and to
                             ensure freedom of access to the U.S. courts, of all Iranian companies,
                             including State-owned companies such as Bank Markazi, and that no
                             steps based on the executive, legislative and judicial acts (as referred to
                             above), which involve or imply the recognition or enforcement of such
                             acts shall be taken against the assets or interests of Iran or any Iranian
                             companies[;]
                         (g) That the United States is under an obligation to make full reparation
                             to Iran for the violation of its international legal obligations in a form
                             and in an amount to be determined by the Court at a subsequent stage
                             of the proceedings. Iran reserves its right to introduce and present to
                             the Court in due course a precise evaluation of the reparations owed
                             by the United States ; and
                         (h) Any other remedy the Court may deem appropriate.”
                      15. In the Preliminary Objections, the following submissions were presented
                    on behalf of the Government of the United States of America :
                            “In light of the foregoing, the United States of America requests that the
                         Court uphold the objections set forth above as to the admissibility of Iran’s
                         claims and the jurisdiction of the Court, 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 inadmissible.

                         (b) Dismiss as outside the Court’s jurisdiction all claims that U.S. measures
                             that block or freeze assets of the Iranian government or Iranian finan-
                             cial institutions (as defined in Executive Order 13599) violate any pro-
                             vision of the Treaty.

                         (c) Dismiss as outside the Court’s jurisdiction all claims, brought under
                             any provision of the Treaty of Amity, that are predicated on the
                             United States’ purported failure to accord sovereign immunity from
                             jurisdiction and/or enforcement to the Government of Iran, Bank Mar-
                             kazi, or Iranian State-owned entities.
                         (d) Dismiss as outside the Court’s jurisdiction all claims of purported vio-
                             lations of Articles III, IV, or V of the Treaty that are predicated on
                             treatment accorded to the Government of Iran or to Bank Markazi.”
                       16. In its Observations and Submissions on the Preliminary Objections, the
                    following submissions were presented on behalf of the Government of the
                    Islamic Republic of Iran :
                           “For the reasons given above, the Islamic Republic of Iran requests that
                         the Court :
                         (a) Dismiss the preliminary objections submitted by the United States in
                             its submission dated 1 May 2017, and

                    15

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                    19 	                certain iranian assets (judgment)

                         (b) Decide that it has jurisdiction to hear the claims in the Application by
                             the Islamic Republic of Iran dated 14 June 2016, and proceed to hear
                             those claims.”
                      17. 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 of America,
                    at the hearing of 11 October 2018 :
                            “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. objections set forth in its written submissions
                         and at this hearing as to the admissibility of Iran’s claims and the jurisdic-
                         tion of the Court, 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 inadmissible ;

                         (b) Dismiss as outside the Court’s jurisdiction all claims that U.S. measures
                             that block the property and interests in property of the Government
                             of Iran or Iranian financial institutions (as defined in Executive
                             Order 13599 and regulatory provisions implementing Executive
                             Order 13599) violate any provision of the Treaty ;

                         (c) Dismiss as outside the Court’s jurisdiction all claims, brought under
                             any provision of the Treaty of Amity, that are predicated on the
                             United States’ purported failure to accord sovereign immunity from
                             jurisdiction and/or enforcement to the Government of Iran, Bank Mar-
                             kazi, or Iranian State-owned entities ; and
                         (d) Dismiss as outside the Court’s jurisdiction all claims of purported vio-
                             lations of Articles III, IV, or V of the Treaty of Amity that are predi-
                             cated on treatment accorded to the Government of Iran or Bank
                             Markazi.”
                    On behalf of the Government of the Islamic Republic of Iran,
                    at the hearing of 12 October 2018 :
                           “The Islamic Republic of Iran requests that the Court adjudge and declare :
                         (a) that the preliminary objections submitted by the United States are
                             rejected in their entireties, and
                         (b) that it has jurisdiction to hear the claims in the Application by the
                             Islamic Republic of Iran dated 14 June 2016 and proceed to hear those
                             claims.”

                                                              *
                                                          *       *

                                              I. Factual Background

                      18. The Court recalls that, on 15 August 1955, the Parties signed a
                    “Treaty of Amity, Economic Relations, and Consular Rights”, which
                    entered into force on 16 June 1957 (see paragraph 1 above).

                    16

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                    20 	               certain iranian assets (judgment)

                      19. Iran and the United States ceased diplomatic relations in 1980, fol-
                    lowing the Iranian revolution in early 1979 and the seizure of the
                    United States Embassy in Tehran on 4 November 1979.
                      20. In October 1983, United States Marine Corps barracks in Beirut,
                    Lebanon, were bombed, killing 241 United States servicemen who were
                    part of a multinational peacekeeping force. The United States claims that
                    Iran is responsible for this bombing and for subsequent acts of terrorism
                    and violations of international law ; Iran rejects these allegations.

                       21. In 1984, the United States designated Iran as a “State sponsor of
                    terrorism”, a designation which has been maintained ever since.
                       22. In 1996, the United States amended its Foreign Sovereign Immuni-
                    ties Act (hereinafter the “FSIA”) so as to remove the immunity from suit
                    before its courts of States designated as “State sponsors of terrorism” in
                    certain cases involving allegations of torture, extrajudicial killing, aircraft
                    sabotage, hostage taking, or the provision of material support for such
                    acts (Section 1605 (a) (7) of the FSIA) ; it also provided exceptions to
                    immunity from execution applicable in such cases (Sections 1610 (a) (7)
                    and 1610 (b) (2) of the FSIA). Plaintiffs then began to bring actions
                    against Iran before United States courts for damages arising from deaths
                    and injuries caused by acts allegedly supported, including financially, by
                    Iran. These actions gave rise in particular to the Peterson case, concerning
                    the above-mentioned bombing of the United States barracks in Beirut
                    (see paragraph 20 above). Iran declined to appear in these lawsuits on the
                    ground that the United States legislation was in violation of the interna-
                    tional law on State immunities.

                      23. In 2002, the United States adopted the Terrorism Risk Insurance
                    Act (hereinafter the “TRIA”), which established enforcement measures
                    for judgments entered following the 1996 amendment to the FSIA. In
                    particular, Section 201 of the TRIA provides as a general rule that, in
                    every case in which a person has obtained a judgment in respect of an act
                    of terrorism or falling within the scope of Section 1605 (a) (7) of the
                    FSIA, the assets of a “terrorist party” (defined to include, among others,
                    designated “State sponsors of terrorism”) previously blocked by the
                    United States Government — “including the blocked assets of any agency
                    or instrumentality of that terrorist party” — shall be subject to execution
                    or attachment in aid of execution.

                       24. In 2008, the United States further amended the FSIA, enlarging,
                    inter alia, the categories of assets available for the satisfaction of judg-
                    ment creditors, in particular to include all property of Iranian State‑owned
                    entities, whether or not that property had previously been “blocked” by
                    the United States Government, and regardless of the degree of control
                    exercised by Iran over those entities (Section 1610 (g) of the FSIA).

                    17

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                    21 	               certain iranian assets (judgment)

                       25. In 2012, the President of the United States issued Executive
                    Order 13599, which blocked all assets (“property and interests in prop-
                    erty”) of the Government of Iran, including those of the Central Bank of
                    Iran (Bank Markazi) and of financial institutions owned or controlled by
                    Iran, where such assets are within United States territory or “within the
                    possession or control of any United States person, including any foreign
                    branch”.
                       26. Also in 2012, the United States adopted the Iran Threat Reduction
                    and Syria Human Rights Act, Section 502 of which, inter alia, made the
                    assets of Bank Markazi subject to execution in order to satisfy default
                    judgments against Iran in the Peterson case. Bank Markazi challenged the
                    validity of this provision before United States courts ; the Supreme Court
                    of the United States ultimately upheld its constitutionality (Bank
                    Markazi v. Peterson et al., U.S. Supreme Court, 20 April 2016, Supreme
                    Court Reporter, Vol. 136, p. 1310 (2016)).

                       27. Following the measures taken by the United States, many default
                    judgments and substantial damages awards have been entered by
                    United States courts against the State of Iran and, in some cases, against
                    Iranian State‑owned entities. Further, the assets of Iran and Iranian
                    State‑owned entities, including Bank Markazi, are now subject to enforce-
                    ment proceedings in various cases in the United States or abroad, or have
                    already been distributed to judgment creditors.

                                                         *
                      28. The United States has raised several preliminary objections to the
                    jurisdiction of the Court and to the admissibility of the Application. The
                    Court will first deal with issues related to its jurisdiction.

                                                 II. Jurisdiction

                       29. Iran invokes as a basis of jurisdiction in the present case Arti-
                    cle XXI, paragraph 2, of the Treaty of Amity, which provides :
                           “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.”

                      30. The Court begins by noting that it is not contested that the Treaty
                    of Amity was in force between the Parties on the date of the filing of Iran’s
                    Application, namely 14 June 2016, and that the denunciation of the Treaty

                    18

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                    22 	               certain iranian assets (judgment)

                    announced by the United States on 3 October 2018 has no effect on the
                    jurisdiction of the Court in the present case. Nor is it contested that sev-
                    eral of the conditions laid down by Article XXI, paragraph 2, of the Treaty
                    are met : a dispute has arisen between Iran and the United States ; it has
                    not been possible to adjust that dispute by diplomacy ; and the two States
                    have not agreed to settlement by some other pacific means.
                       31. However, the Parties disagree on the question whether the dispute
                    concerning the United States’ measures of which Iran complains is a dis-
                    pute “as to the interpretation or application” of the Treaty of Amity.
                       32. The Court recalls that, in its Application filed on 14 June 2016,
                    Iran states that the dispute between the Parties concerns the adoption by
                    the United States of a series of measures which have had a serious adverse
                    impact on the ability of Iran and of certain Iranian companies to exercise
                    their rights to control and enjoy their property, including property located
                    outside the territory of Iran and, in particular, within the territory of the
                    United States.
                       33. In its written pleadings, Iran alleges that, by failing to recognize the
                    separate juridical status of Bank Markazi and other Iranian companies,
                    the United States has breached Article III, paragraph 1, of the Treaty ;
                    that, by denying these various companies the immunities that they would
                    otherwise enjoy, it has breached Article III, paragraph 2, and Article XI,
                    paragraph 4, of the Treaty ; that the unfair and inequitable treatment by
                    the United States of these various companies has breached the obliga-
                    tions arising from Article IV, paragraph 1, of the Treaty ; that, by failing
                    to accord such companies and their property the most constant protec-
                    tion and security, the United States has also breached its obligations
                    under Article IV, paragraph 2, of the Treaty ; that, by failing to respect
                    the right of such companies to acquire and dispose of property, the
                    United States has breached Article V, paragraph 1, of the Treaty ; and
                    that the restrictions applied by the United States on financial transfers
                    have interfered with freedom of commerce between the territories of the
                    Parties to the Treaty, in breach of Article VII, paragraph 1, and Arti-
                    cle X, paragraph 1, of the Treaty.
                       34. The United States maintains that Iran is not seeking the settlement
                    of a legal dispute concerning the provisions of the Treaty, but is attempt-
                    ing to embroil the Court in “a broader strategic dispute”. The Respon-
                    dent also notes that the United States’ actions of which Iran complains
                    cannot be separated from their context, namely Iran’s long-standing vio-
                    lations of international law with regard to the United States and its
                    nationals and the consequent deterioration of United States‑Iranian rela-
                    tions.
                       35. In Iran’s view, the United States “mischaracterises” the dispute by
                    contending that it would encompass the whole of the Iran‑United States
                    relationship since 1979. In its oral arguments, however, Iran acknowl-
                    edged the existence of a complicated history and relationship between the
                    two Parties, but argued that this must not prevent the two countries from
                    seeking the peaceful settlement of their disputes through judicial means.

                    19

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                    23 	                       certain iranian assets (judgment)

                       36. As the Court has observed, applications that are submitted to it
                    often present a particular dispute that arises in the context of a broader
                    disagreement between parties (Obligation to Negotiate Access to the
                    Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
                    I.C.J. Reports 2015 (II), p. 604, para. 32 ; Application of the International
                    Convention on the Elimination of All Forms of Racial Discrimination
                    (Georgia v. Russian Federation), Preliminary Objections, Judgment,
                    I.C.J. Reports 2011 (I), pp. 85‑86, para. 32 ; Border and Transborder
                    Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
                    Judgment, I.C.J. Reports 1988, pp. 91‑92, para. 54 ; United States Diplo-
                    matic and Consular Staff in Tehran (United States of America v. Iran),
                    Judgment, I.C.J. Reports 1980, pp. 19‑20, paras. 36‑37). In this case, the
                    Court must ascertain whether the acts of which Iran complains fall within
                    the provisions of the Treaty of Amity and whether, as a consequence, the
                    dispute is one which the Court has jurisdiction ratione materiae to enter-
                    tain, pursuant to Article XXI, paragraph 2, thereof (Oil Platforms
                    (Islamic Republic of Iran v. United States of America), Preliminary Objec-
                    tion, Judgment, I.C.J. Reports 1996 (II), pp. 809‑810, para. 16).
                       37. The Court will examine in turn the three preliminary objections to
                    jurisdiction raised by the United States.

                                                  A. First Objection to Jurisdiction
                       38. In its first objection to jurisdiction, the United States asks the
                    Court to “[d]ismiss as outside the Court’s jurisdiction all claims that
                    U.S. measures that block the property and interests in property of the
                    Government of Iran or Iranian financial institutions (as defined in Execu-
                    tive Order 13599 and regulatory provisions implementing Executive
                    Order 13599) violate any provision of the Treaty”. In its view, these
                    claims fall outside the scope of the Treaty by virtue of Article XX, para-
                    graph 1, subparagraphs (c) and (d), thereof.

                      39. Those provisions read as follows :
                             “1. The present Treaty shall not preclude the application of meas-
                         ures :
                         �����������������������������������������������������������������������������������������������������������������
                         (c) regulating the production of or traffic in arms, ammunition and
                               implements of war, or traffic in other materials carried on directly
                               or indirectly for the purpose of supplying a military establish-
                               ment ; and
                         (d) necessary to fulfill the obligations of a High Contracting Party
                               for the maintenance or restoration of international peace and secu-
                               rity, or necessary to protect its essential security interests.”

                    20

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                    24 	               certain iranian assets (judgment)

                       40. The United States submits that, when Article XX, paragraph 1, of
                    the Treaty is invoked, “the Court’s jurisdiction is limited to deciding, as
                    an initial matter, whether the exclusions therein apply to the challenged
                    measure”. In that case, the Court would have no jurisdiction in respect of
                    any claims predicated on such measure. The United States adds that this
                    objection to jurisdiction is exclusively preliminary. To this end, it argues
                    that the Court need not make any findings that concern the merits of
                    Iran’s claims, in particular with regard to Article XX, paragraph 1, sub-
                    paragraph (c), of the Treaty, which the United States notes was not
                    invoked in the Oil Platforms case, in order to hold that Executive
                    Order 13599 is excluded from the Court’s jurisdiction under Article XX,
                    paragraph 1, of the Treaty. It maintains that the Court should confine
                    itself to observing that Executive Order 13599 is a measure which regu-
                    lates traffic in the materials listed in Article XX, paragraph 1, subpara-
                    graph (c), of the Treaty.
                       41. In addition, according to the United States, even if the Court were
                    to find that Article XX, paragraph 1, of the Treaty could not sustain an
                    objection to jurisdiction, this would nonetheless not bar it from consider-
                    ing any other objection under that article as a preliminary matter, with-
                    out any consideration of the merits. The United States thus argues that its
                    first objection is an objection upon which the Court should render a deci-
                    sion before any further proceedings on the merits, in accordance with
                    Article 79, paragraph 1, of the Rules of Court.

                       42. According to Iran, Article XX, paragraph 1, of the Treaty provides
                    for a potential defence on the merits. It maintains that conduct which
                    would otherwise amount to a breach of the Treaty could thus be excused,
                    adding that the United States’ interpretation of the provision lacks a tex-
                    tual basis and is also inconsistent with the Court’s jurisprudence. In sup-
                    port of its arguments, Iran cites, in addition to the Judgments rendered in
                    the cases concerning Military and Paramilitary Activities in and against
                    Nicaragua (Nicaragua v. United States of America) (Merits, Judgment,
                    I.C.J. Reports 1986, p. 116, para. 222, and p. 136, para. 271) and Oil
                    Platforms (Islamic Republic of Iran v. United States of America) (Pre-
                    liminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 811, para. 20),
                    the Court’s Order of 3 October 2018 indicating provisional measures in
                    the case concerning Alleged Violations of the 1955 Treaty of Amity, Eco-
                    nomic Relations, and Consular Rights (Islamic Republic of Iran v.
                    United States of America) (Provisional Measures, Order of 3 October
                    2018, I.C.J. Reports 2018 (II), p. 635, paras. 40‑42).
                       43. Responding to the United States’ argument that the Court was not
                    asked to consider Article XX, paragraph 1, subparagraph (c), of the
                    Treaty in the case concerning Oil Platforms, Iran claims that it is of little
                    importance that the United States invokes a different subparagraph of the
                    same article in the present case.
                       44. Iran also contends that the objection raised by the United States
                    cannot, in any event, be regarded as exclusively preliminary, but that it is

                    21

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                    25 	               certain iranian assets (judgment)

                    inherently tied to the merits in so far as it involves establishing factual
                    allegations of an extremely grave nature which the Court is not in a posi-
                    tion to rule on at this preliminary stage of the proceedings.

                                                        * *
                       45. The Court recalls that it previously had occasion to observe in its
                    Judgment on the preliminary objection in the case concerning 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) and more
                    recently in its Order indicating provisional measures in the case concern-
                    ing Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
                    and Consular Rights (Islamic Republic of Iran v. United States of America)
                    (Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II),
                    p. 635, para. 41) that the Treaty of Amity contains no provision
                    expressly excluding certain matters from its jurisdiction. Referring to
                    its decision in the case concerning Military and Paramilitary Activities in
                    and against Nicaragua (Nicaragua v. United States of America) (Merits,
                    Judgment, I.C.J. Reports 1986, p. 116, para. 222, and p. 136, para. 271),
                    the Court considered that Article XX, paragraph 1, subparagraph (d),
                    “[did] not restrict its jurisdiction” in that case “but [was] confined to
                    affording the Parties a possible defence on the merits to be used should
                    the occasion arise” (Oil Platforms (Islamic Republic of Iran v. United States
                    of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
                    p. 811, para. 20). The Court sees no reason in the present case to depart
                    from its earlier findings.
                       46. In the Court’s opinion, this same interpretation also applies to
                    Article XX, paragraph 1, subparagraph (c), of the Treaty since, in this
                    regard, there are no relevant grounds on which to distinguish it from
                    Article XX, paragraph 1, subparagraph (d).
                       47. The Court concludes from the foregoing that subparagraphs (c)
                    and (d) of Article XX, paragraph 1, do not restrict its jurisdiction but
                    merely afford the Parties a defence on the merits.
                       The first objection to jurisdiction raised by the United States must
                    therefore be rejected.

                                        B. Second Objection to Jurisdiction
                      48. In its second objection to jurisdiction, the United States asks the
                    Court to dismiss
                         “as outside the Court’s jurisdiction all claims, brought under any pro-
                         vision of the Treaty of Amity, that are predicated on the United States’
                         purported failure to accord sovereign immunity from jurisdiction
                         and/or enforcement to the Government of Iran, Bank Markazi, or
                         Iranian State‑owned entities”.

                    22

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                    26 	              certain iranian assets (judgment)

                       49. In substance, the United States argues that it follows from the text
                    and context of the Treaty of Amity that it does not confer immunity on
                    the States Parties themselves or on any of their State entities. The
                    United States observes that none of the articles of which Iran alleges a
                    breach in support of its claims mentions any protection with respect to
                    immunity from jurisdiction or enforcement. It points out that the object
                    and purpose of the Treaty indicate that it is not intended to govern such
                    questions, but rather concerns commercial and consular relations between
                    the two countries. According to the Respondent, this is confirmed by the
                    historical circumstances in which the Treaty was adopted and by the
                    absence of any reference in the travaux préparatoires to questions relating
                    to sovereign immunities. Finally, the United States asserts that its conclu-
                    sion is supported by the subsequent practice of the Parties to the Treaty,
                    and in particular by the fact that, in the cases submitted to United States
                    courts in the decades following the Treaty’s entry into force, Iran did not
                    claim any violation of a right to sovereign immunity allegedly protected
                    by the Treaty.
                       50. Iran does not dispute that the Treaty of Amity contains no clause
                    directly and expressly granting immunity from jurisdiction or enforce-
                    ment to the States Parties or their State entities. However, it maintains
                    that consideration of the immunities conferred on States and certain State
                    entities by general international law is a necessary condition for the Court
                    to adjudicate in full on Iran’s claims relating to the violation of various
                    provisions of the Treaty of Amity. Consequently, in Iran’s view, the juris-
                    diction conferred on the Court by Article XXI, paragraph 2, of the Treaty
                    includes jurisdiction to determine and apply the immunities at issue to the
                    full extent necessary in order to decide whether the provisions invoked by
                    Iran have been breached by the United States.

                       51. More specifically, in support of its claim that the second objection
                    to jurisdiction should be rejected, Iran relies on two categories of provi-
                    sions in the Treaty of Amity. Those in the first category refer to interna-
                    tional law in general or to the law of immunities in particular, and,
                    according to Iran, must be understood as incorporating into the Treaty,
                    at least to some degree, the obligation to respect the sovereign immunities
                    guaranteed by international law : they are Article IV, paragraph 2, and
                    Article XI, paragraph 4, of the Treaty. The others, although containing
                    no express reference to the law of immunities or to customary interna-
                    tional law in general, necessarily entail, according to Iran, consideration
                    of the immunities which States and State entities enjoy under interna-
                    tional law, in order to be interpreted and applied in full : they are Arti-
                    cle III, paragraph 2 ; Article IV, paragraph 1 ; and Article X, paragraph 1,
                    of the Treaty.
                       52. The Court will examine below each of the provisions on which Iran
                    relies, in order to ascertain whether it permits the question of sovereign
                    immunities to be considered as falling within the scope ratione materiae of
                    the Treaty of Amity.

                    23

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                    27 	               certain iranian assets (judgment)

                    1. Article IV, paragraph 2, of the Treaty
                      53. Article IV, paragraph 2, of the Treaty of Amity provides :
                            “Property of nationals and companies of either High Contracting
                         Party, including interests in property, shall receive the most constant
                         protection and security within the territories of the other High Con-
                         tracting Party, in no case less than that required by international law.
                         Such property shall not be taken except for a public purpose, nor shall
                         it be taken without the prompt payment of just compensation. Such
                         compensation shall be in an effectively realizable form and shall rep-
                         resent the full equivalent of the property taken ; and adequate provi-
                         sion shall have been made at or prior to the time of taking for the
                         determination and payment thereof.”

                       54. Iran relies on the explicit mention of the “require[ments of] interna-
                    tional law” contained in the opening sentence of the above paragraph to
                    argue that this provision incorporates by reference the rules of customary
                    international law on sovereign immunities into the obligation it lays
                    down. According to Iran, if there has been a breach by the United States
                    of the immunities enjoyed under customary international law by the Ira-
                    nian State and Iranian State‑owned entities, as it claims on the merits, it
                    follows that the “[p]roperty of nationals and companies of either High
                    Contracting Party” did not “receive the most constant protection and
                    security”, and that the protection and security received did not comply
                    with the obligation that they be no “less than that required by interna-
                    tional law” ; that, consequently, Article IV, paragraph 2, has been
                    breached by the United States. Since the Court has jurisdiction to rule on
                    the alleged breach of any of the Treaty’s provisions, it therefore also has
                    jurisdiction, according to Iran, to apply the law of immunities in the con-
                    text of Article IV, paragraph 2.
                       55. The United States disputes this interpretation. In its view, the
                    “require[ments of] international law” referred to in Article IV, para-
                    graph 2, concern the minimum standard of treatment for the property of
                    aliens in the host State — a well‑known concept in the field of investment
                    protection — and not immunity protections of any kind. Furthermore,
                    the fact that these guarantees apply indiscriminately to private companies
                    (which may not benefit from immunity) and State entities confirms, in the
                    Respondent’s view, that the provision at issue cannot be understood as
                    including sovereign immunity protections.

                                                        * *
                      56. For the purposes of the present discussion, the Court will leave
                    aside the question whether Bank Markazi is a “company” within the

                    24

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                    28 	               certain iranian assets (judgment)

                    meaning of Article IV, paragraph 2, quoted above. This point will be
                    addressed below in the context of the Court’s consideration of the third
                    objection to jurisdiction. The question to be answered now by the Court
                    is whether, assuming that this entity constitutes a “company” within the
                    meaning of the Treaty — which the United States disputes — Article IV,
                    paragraph 2, obliges the Respondent to respect the sovereign immunity to
                    which Bank Markazi or the other Iranian State-owned entities concerned
                    in this case would allegedly be entitled under customary international
                    law.
                       57. The Court observes in this regard that Iran’s proposed interpreta-
                    tion of the phrase referring to the “require[ments of] international law” in
                    the provision quoted above is not consistent with the object and purpose
                    of the Treaty of Amity. As stated in the Treaty’s preamble, the Parties
                    intended to “encourag[e] mutually beneficial trade and investments and
                    closer economic intercourse generally between their peoples, and [to]
                    regulat[e] consular relations”. In addition, the title of the Treaty does not
                    suggest that sovereign immunities fall within the object and purpose of
                    the instrument concerned. Such immunities cannot therefore be consid-
                    ered as included in Article IV, paragraph 2 (see, by analogy, Immunities
                    and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
                    Objections, Judgment, I.C.J. Reports 2018 (I), pp. 321-322, para. 95). The
                    “international law” in question in this provision is that which defines the
                    minimum standard of protection for property belonging to the “nation-
                    als” and “companies” of one Party engaging in economic activities within
                    the territory of the other, and not that governing the protections enjoyed
                    by State entities by virtue of the principle of sovereign equality of States.

                       58. In addition, the provision in Article IV, paragraph 2, relied on by
                    Iran must be read in the context of Article IV as a whole. Paragraph 1 of
                    this Article concerns the “fair and equitable treatment” to be accorded to
                    the nationals and companies of one Party by the other Party and the pro-
                    hibition of any “unreasonable or discriminatory measures” that would
                    impair their “legally acquired rights and interests”. The second sentence
                    of paragraph 2 provides that the property mentioned in the previous sen-
                    tence (property which must receive protection, in no case less than that
                    required by international law) “shall not be taken except for a public pur-
                    pose, nor shall it be taken without the prompt payment of just compensa-
                    tion”. Paragraph 4 concerns “[e]nterprises which nationals and companies
                    of either High Contracting Party are permitted to establish or acquire,
                    within the territories of the other High Contracting Party”. Taken
                    together, these provisions clearly indicate that the purpose of Article IV is
                    to guarantee certain rights and minimum protections for the benefit of
                    natural persons and legal entities engaged in activities of a commercial
                    nature. It cannot therefore be interpreted as incorporating, by reference,
                    the customary rules on sovereign immunities.

                    25

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                    29 	               certain iranian assets (judgment)

                    2. Article XI, paragraph 4, of the Treaty
                      59. Article XI, paragraph 4, of the Treaty of Amity provides :
                            “No enterprise of either High Contracting Party, including corpo-
                         rations, associations, and government agencies and instrumentalities,
                         which is publicly owned or controlled shall, if it engages in commer-
                         cial, industrial, shipping or other business activities within the terri-
                         tories of the other High Contracting Party, claim or enjoy, either for
                         itself or for its property, immunity therein from taxation, suit, execu-
                         tion of judgment or other liability to which privately owned and con-
                         trolled enterprises are subject therein.”

                       60. Iran notes that this provision bars all “immunity” only in the case
                    of enterprises of a Contracting Party which are “publicly owned or con-
                    trolled” and engage in “commercial [or] industrial” activities within the
                    territory of the other Party. It infers from this that the provision at issue
                    does not affect the immunity enjoyed under customary international law
                    by State entities that engage in activities jure imperii, and that it “confirms
                    by strong implication the existence of a Treaty obligation that such
                    immunity must be upheld”.

                       61. The United States rejects this interpretation. In its view, Article XI,
                    paragraph 4, seeks only to prevent unfair competition on the part of pub-
                    licly owned enterprises, by ensuring that they cannot avoid the liabilities
                    imposed on the private enterprises with which they are in competition. It
                    is extraneous to the question of the immunities enjoyed by State entities
                    engaging in activities jure imperii.

                                                         * *
                       62. The Court notes, in agreement with Iran’s argument on this point,
                    that Article XI, paragraph 4, which solely excludes from all “immunity”
                    publicly owned enterprises engaging in commercial or industrial activi-
                    ties, does not affect the immunities enjoyed under customary international
                    law by State entities which engage in activities jure imperii.

                      63. However, Iran goes further in contending that this provision
                    imposes an implied obligation to uphold those immunities. The Applicant
                    adopts, in this regard, an a contrario reading of Article XI, paragraph 4,
                    whereby, in excluding from immunity only publicly owned enterprises
                    engaging in commercial or industrial activities, this provision implicitly
                    seeks to guarantee the sovereign immunity of public entities when they
                    engage in activities jure imperii.

                    26

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                    30 	               certain iranian assets (judgment)

                      64. As the Court has stated previously,
                         “[a]n a contrario reading of a treaty provision . . . has been employed
                         by both the present Court (see, e.g., Territorial and Maritime Dispute
                         (Nicaragua v. Colombia), Application by Honduras for Permission to
                         Intervene, Judgment, I.C.J. Reports 2011 (II), p. 432, para. 29) and
                         the Permanent Court of International Justice (S.S. “Wimbledon”,
                         Judgments, 1923, P.C.I.J., Series A, No. 1, pp. 23‑24). Such an inter-
                         pretation is only warranted, however, when it is appropriate in light
                         of the text of all the provisions concerned, their context and the object
                         and purpose of the treaty.” (Alleged Violations of Sovereign Rights
                         and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),
                         Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 19,
                         para. 37 ; Question of the Delimitation of the Continental Shelf between
                         Nicaragua and Colombia beyond 200 Nautical Miles from the Nicara-
                         guan Coast (Nicaragua v. Colombia), Preliminary Objections, Judg-
                         ment, I.C.J. Reports 2016 (I), p. 116, para. 35.)
                       65. In the present case, the Court cannot adopt the interpretation put
                    forward by Iran. It is one thing for Article XI, paragraph 4, to leave
                    intact, by not barring them, the immunities enjoyed under customary law
                    by State entities when they engage in activities jure imperii. It is quite
                    another for it to have the effect, as Iran claims it does, of transforming
                    compliance with such immunities into a treaty obligation, a view not sup-
                    ported by the text or context of the provision.

                       If Article XI, paragraph 4, mentions only publicly owned enterprises
                    which engage in “commercial, industrial, shipping or other business activ-
                    ities”, this is because, in keeping with the object and purpose of the
                    Treaty, it pertains only to economic activities and seeks to preserve fair
                    competition among economic actors operating in the same market. The
                    question of activities jure imperii is simply not germane to the concerns
                    underlying the drafting of Article XI, paragraph 4. The argument that
                    this provision incorporates sovereign immunities into the Treaty thus
                    cannot be upheld.

                    3. Article III, paragraph 2, of the Treaty
                      66. Article III, paragraph 2, of the Treaty of Amity provides :
                            “Nationals and companies of either High Contracting Party shall
                         have freedom of access to the courts of justice and administrative
                         agencies within the territories of the other High Contracting Party, in
                         all degrees of jurisdiction, both in defense and pursuit of their rights,
                         to the end that prompt and impartial justice be done. Such access shall
                         be allowed, in any event, upon terms no less favorable than those
                         applicable to nationals and companies of such other High Contract-

                    27

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                    31 	               certain iranian assets (judgment)

                         ing Party or of any third country. It is understood that companies not
                         engaged in activities within the country shall enjoy the right of such
                         access without any requirement of registration or domestication.”

                       67. According to Iran, sovereign immunities come into play in several
                    ways in determining — a matter for the merits — whether the United States
                    upheld the “freedom of access to the courts of justice and administrative
                    agencies . . . both in defense and pursuit of their rights”, which the provi-
                    sion quoted above accords to “nationals and companies” of Iran.

                       In Iran’s view, the Court should determine whether the denial under
                    United States law of the right of the Iranian entities concerned to avail
                    themselves in judicial proceedings of a defence based on sovereign immu-
                    nity is consistent with customary international law.
                       Iran is also of the view that the Court should take account of all the
                    relevant rules of international law, including the right to assert jurisdic-
                    tional immunity in judicial proceedings, in order to ascertain what is
                    required by “freedom of access” to the courts within the meaning of Arti-
                    cle III, paragraph 2. It argues that its right under that provision to free-
                    dom of access to United States courts on terms no less favourable than
                    those applicable to nationals and companies of third States has been
                    breached. This is because, according to Iran, entities of third States per-
                    forming sovereign functions, in particular central banks, are able to avail
                    themselves of their immunity before United States courts.

                       68. The United States disputes this interpretation and contends that
                    the purpose of Article III, paragraph 2, is not to grant specific substantive
                    rights or any substantive guarantees as to the defences that may be
                    asserted by the “nationals” or “companies” of one Party before the courts
                    of the other Party, but only to allow access to those courts. Similarly,
                    freedom of access to the courts does not imply any guarantee that certain
                    entities cannot be sued or that their property cannot be seized.

                                                        * *
                       69. Assuming for the purposes of the present discussion, as above (see
                    paragraph 56 above), that Bank Markazi is a “company” — a question
                    which will be examined below — the Court must now ascertain whether
                    the alleged breach of the immunities that bank and the other Iranian
                    State entities concerned are said to enjoy under customary international
                    law, should that breach be established, would constitute a violation of the
                    right to have “freedom of access to the courts” guaranteed by that provi-
                    sion. It is only if the answer to this question is in the affirmative that it

                    28

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                    32 	               certain iranian assets (judgment)

                    could be concluded that the application of Article III, paragraph 2,
                    requires the Court to examine the question of sovereign immunities, and
                    that such an examination thus falls, to that extent, within its jurisdiction
                    as defined by the compromissory clause of the Treaty of Amity.
                       70. The Court is not convinced that a link of the nature alleged by Iran
                    exists between the question of sovereign immunities and the right guaran-
                    teed by Article III, paragraph 2.
                       It is true that the mere fact that Article III, paragraph 2, makes no
                    mention of sovereign immunities, and that it also contains no renvoi to
                    the rules of general international law, does not suffice to exclude the ques-
                    tion of immunities from the scope ratione materiae of the provision at
                    issue. However, for that question to be relevant, the breach of interna-
                    tional law on immunities would have to be capable of having some impact
                    on compliance with the right guaranteed by Article III, paragraph 2.

                       That is not the case. The provision at issue does not seek to guarantee
                    the substantive or even the procedural rights that a company of one Con-
                    tracting Party might intend to pursue before the courts or authorities of
                    the other Party, but only to protect the possibility for such a company to
                    have access to those courts or authorities with a view to pursuing the
                    (substantive or procedural) rights it claims to have. The wording of Arti-
                    cle III, paragraph 2, does not point towards the broad interpretation sug-
                    gested by Iran. The rights therein are guaranteed “to the end that prompt
                    and impartial justice be done”. Access to a Contracting Party’s courts
                    must be allowed “upon terms no less favorable” than those applicable to
                    the nationals and companies of the Party itself “or of any third country”.
                    There is nothing in the language of Article III, paragraph 2, in its ordi-
                    nary meaning, in its context and in light of the object and purpose of the
                    Treaty of Amity, to suggest or indicate that the obligation to grant Ira-
                    nian “companies” freedom of access to United States courts entails an
                    obligation to uphold the immunities that customary international law is
                    said to accord — if that were so — to some of these entities. The two
                    questions are clearly distinct.

                    4. Article IV, paragraph 1, of the Treaty
                      71. Iran also relies on Article IV, paragraph 1, of the Treaty of Amity,
                    which provides :
                            “Each High Contracting Party shall at all times accord fair and
                         equitable treatment to nationals and companies of the other High
                         Contracting Party, and to their property and enterprises ; shall refrain
                         from applying unreasonable or discriminatory measures that would
                         impair their legally acquired rights and interests ; and shall assure that
                         their lawful contractual rights are afforded effective means of enforce-
                         ment, in conformity with the applicable laws.”

                    29

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                    33 	               certain iranian assets (judgment)

                       72. According to Iran, the denial by the United States of the sovereign
                    immunities to which the Iranian State entities concerned are entitled
                    under customary international law is capable of constituting a breach of
                    the obligation to accord “fair and equitable treatment” and to refrain
                    from any “unreasonable or discriminatory measures” within the meaning
                    of Article IV, paragraph 1. In Iran’s view, the Court therefore has juris-
                    diction to ascertain whether the international law on immunities has been
                    upheld, in order to determine whether the United States has complied
                    with the requirements of Article IV, paragraph 1.
                       73. The United States contests this view. According to the Respon-
                    dent, Article IV, paragraph 1, which is a classic provision in “Friendship,
                    Commerce and Navigation” treaties, is aimed at affording certain protec-
                    tions to the nationals and companies of a State in the exercise of their
                    private or professional activities, of a commercial nature, within the terri-
                    tory of the other Party. It does not concern entities engaged in sovereign
                    activities.

                                                        * *
                      74. For reasons similar to those set out above regarding Iran’s reliance
                    on Article IV, paragraph 2, of the Treaty of Amity (see paragraph 58
                    above), the Court does not consider that the requirements of Article IV,
                    paragraph 1, include an obligation to respect the sovereign immunities of
                    the State and those of its entities which can claim such immunities under
                    customary international law. It cannot therefore uphold on this
                    point Iran’s argument that the question of sovereign immunities falls
                    within the scope ratione materiae of this provision, and consequently
                    within the jurisdiction of the Court under the compromissory clause of
                    the Treaty of Amity.

                    5. Article X, paragraph 1, of the Treaty
                       75. Article X, paragraph 1, of the Treaty of Amity provides that
                    “[b]etween the territories of the two High Contracting Parties there shall
                    be freedom of commerce and navigation”.
                       76. According to Iran, the jurisdiction of the Court to pronounce on
                    whether the United States respected the “freedom of commerce” guaran-
                    teed by Article X, paragraph 1, implies jurisdiction to determine whether
                    the sovereign immunities guaranteed by customary international law have
                    been respected and, if they have not, whether and to what extent freedom
                    of commerce might thereby have been impeded.
                       77. The United States notes that the “freedom of commerce” men-
                    tioned in Article X, paragraph 1, appears in an article on matters relating
                    to the treatment of vessels and of the cargo and products they carry. The
                    Respondent concludes that this expression refers to actual commerce and

                    30

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                    34 	                certain iranian assets (judgment)

                    to the ancillary activities linked directly thereto, but that it cannot cover
                    the protection of sovereign immunity.

                                                          * *
                        78. The Court recalls that in its Judgment on the preliminary objection
                     in the case concerning Oil Platforms (Islamic Republic of Iran v.
                     United States of America) (Preliminary Objection, Judgment, I.C.J. Reports
                     1996 (II), p. 803), it had to rule on the scope of the concept of “freedom
                     of commerce” within the meaning of Article X, paragraph 1, of the Treaty
                     of Amity, in order to determine whether the dispute between the parties
                     fell within the scope of that provision.
                        It stated on that occasion that the word “commerce” within the mean-
                    ing of the provision at issue refers not just to maritime commerce, but to
                    commercial exchanges in general ; that, in addition, the word “com-
                    merce”, both in its ordinary usage and in its legal meaning, is not limited
                    to the mere acts of purchase and sale ; and that commercial treaties cover
                    a wide range of matters ancillary to commerce, such as the right to estab-
                    lish and operate businesses, protection from molestation, and acquisition
                    and enjoyment of property, etc. (ibid., pp. 818‑819, paras. 45‑46). The
                    Court concluded that “it would be a natural interpretation of the word
                    ‘commerce’ in Article X, paragraph 1, of the Treaty of 1955 that it
                    includes commercial activities in general — not merely the immediate act
                    of purchase and sale, but also the ancillary activities integrally related to
                    commerce” (ibid., p. 819, para. 49).
                        79. The Court sees no reason to depart now from the interpretation of
                    the concept of “freedom of commerce” that it adopted in the case quoted
                    above. Nevertheless, even if understood in this sense, freedom of com-
                    merce cannot cover matters that have no connection, or too tenuous a
                    connection, with the commercial relations between the States Parties to
                    the Treaty. In this regard, the Court is not convinced that the violation of
                    the sovereign immunities to which certain State entities are said to be
                    entitled under international law in the exercise of their activities jure
                    imperii is capable of impeding freedom of commerce, which by definition
                    concerns activities of a different kind. Consequently, the violations of
                    sovereign immunities alleged by Iran do not fall within the scope of
                    Article X, paragraph 1, of the Treaty.

                                                           *
                       80. The Court concludes from all of the foregoing that none of the pro-
                    visions the violation of which Iran alleges, and which, according to the
                    Applicant, are capable of bringing within the jurisdiction of the Court the
                    question of the United States’ respect for the immunities to which certain
                    Iranian State entities are said to be entitled, is of such a nature as to justify
                    such a finding.

                    31

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                    35 	               certain iranian assets (judgment)

                       Consequently, the Court finds that Iran’s claims based on the alleged
                    violation of the sovereign immunities guaranteed by customary interna-
                    tional law do not relate to the interpretation or application of the Treaty
                    of Amity and, as a result, do not fall within the scope of the compromis-
                    sory clause in Article XXI, paragraph 2. Thus, in so far as Iran’s claims
                    concern the alleged violation of rules of international law on sovereign
                    immunities, the Court does not have jurisdiction to consider them.

                      The second objection to jurisdiction raised by the United States must
                    therefore be upheld.

                                        C. Third Objection to Jurisdiction
                       81. In its third objection to jurisdiction, the United States requests the
                    Court to dismiss “as outside the Court’s jurisdiction all claims of pur-
                    ported violations of Articles III, IV, or V of the Treaty of Amity that are
                    predicated on treatment accorded to the Government of Iran or Bank
                    Markazi”.
                       82. The United States contends that Bank Markazi is not a “company”
                    for the purposes of Articles III, IV and V of the Treaty of Amity, on the
                    ground that, as the Central Bank of Iran, it carries out exclusively sover-
                    eign functions and is not engaged in activities of a commercial nature.
                    According to the United States, the protections which Articles III, IV
                    and V provide to “companies” apply only to entities whose activity is of
                    a commercial nature and takes place in a competitive market. The
                    United States acknowledges that the term “company” may also be applied
                    to a public enterprise, but only if the enterprise in question is acting in a
                    similar fashion to a private enterprise. On the other hand, according to
                    the United States, a central bank with functions of an exclusively sover-
                    eign nature falls outside the scope of Articles III, IV and V of the Treaty.
                    Such is the case, according to the United States, for Bank Markazi. The
                    Respondent refers to the statutes of the bank laid down in Iran’s
                    1960 Monetary and Banking Act, as amended, which it argues place this
                    entity under the full control of the Iranian Government and confer on it
                    exclusively sovereign functions, as is generally the case for a central
                    bank. The United States concludes from the above that Iran’s claims
                    relating to the treatment of Bank Markazi fall outside the scope of Arti-
                    cles III, IV and V of the Treaty and that, as a result, the Court lacks
                    jurisdiction to entertain the claims based on the alleged violation of those
                    provisions.

                      83. Iran contends, to the contrary, that Bank Markazi is a “company”
                    for the purposes of Articles III, IV and V of the Treaty of Amity. Iran
                    points out that the definition of “companies” given in Article III, para-
                    graph 1, is deliberately broad. According to the Applicant, it includes any
                    entity that has its own legal personality in the legal order in which it was
                    created, regardless of its activity or capital structure and of whether or

                    32

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                    36 	               certain iranian assets (judgment)

                    not it engages in profit-making activities. Iran argues that, since Bank
                    Markazi has legal personality under Article 10 of the Monetary and
                    Banking Act, and since, under that same provision, it is generally subject
                    to the law applicable to joint-stock companies — and not the law appli-
                    cable to public entities, except for instances expressly laid down by law —
                    it is a “company” within the meaning of the Treaty.

                      Iran adds that Bank Markazi is endowed with capital for the conduct
                    of its professional operations, which may generate profits on which it
                    must pay tax to the Iranian State, and that, like any legal person, it can
                    enter into contracts of any nature, acquire and sell goods and services,
                    own assets and other movable and immovable property, and appear in a
                    court of law.
                      Lastly, Iran contends in the alternative that the third objection to juris-
                    diction is not of a preliminary character, since in order to rule on it, the
                    Court would have to consider questions pertaining to the merits. Indeed,
                    according to Iran, assuming that, as the United States claims, the Treaty
                    only protects companies in so far as they are engaging in private, com-
                    mercial or business activities, it would be necessary for the Court to deter-
                    mine to which of Bank Markazi’s activities the treatment complained of
                    by the Applicant relates. In Iran’s opinion, that could only be done after
                    the Parties have been heard on the merits.

                                                         * *
                       84. The Court observes first that, although the wording of the third
                    preliminary objection refers to “treatment accorded to the Government
                    of Iran or Bank Markazi”, the question before it is solely that of whether
                    Bank Markazi is a “company” within the meaning of the Treaty of Amity
                    and is thereby justified in claiming the rights and protections afforded to
                    “companies” by Articles III, IV and V. It is because Bank Markazi is
                    endowed, under Iranian law, with a legal personality distinct from the
                    State, that Iran takes the view that it is a “company” within the meaning
                    of the Treaty. In the final version of its arguments presented to the Court,
                    Iran does not contend that this characterization could be applied to the
                    State itself. Consequently, the Court will endeavour solely to establish, in
                    the following paragraphs, whether the characterization of “company”
                    within the meaning of the Treaty of Amity is applicable to Bank Markazi.
                    That is, in reality, the only question raised by the third objection to juris-
                    diction.
                       85. Articles III, IV and V of the Treaty of Amity guarantee certain
                    rights and protections to “nationals” and “companies” of a Contracting
                    Party, which must be respected by the other Party.
                       These include, in particular, the right to have “freedom of access to the
                    courts of justice and administrative agencies . . . both in defense and pur-
                    suit of their rights” (Art. III, para. 2) ; the right to “fair and equitable
                    treatment” and not to be subject to “unreasonable or discriminatory mea-

                    33

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                    37 	              certain iranian assets (judgment)

                    sures” (Art. IV, para. 1) ; the “most constant protection” of their prop-
                    erty, “in no case less than that required by international law”, and the
                    right for such property not to be taken “except for a public purpose,
                    nor . . . without the prompt payment of just compensation” (Art. IV,
                    para. 2) ; the protection of premises used by them from any entry or
                    molestation without just cause and other than according to law (Art. IV,
                    para. 3) ; the right for enterprises established by “nationals” and “compa-
                    nies” of one Party within the territory of the other to conduct their activ-
                    ities on terms no less favourable than for other enterprises of whatever
                    nationality engaged in similar activities (Art. IV, para. 4) ; the right to
                    benefit, in the lease or purchase of movable and immovable property,
                    from treatment no less favourable than that accorded to nationals and
                    companies of any third country (Art. V).

                       86. All these provisions refer to “nationals” and “companies” of a
                    Contracting Party. The term “national” applies to natural persons, whose
                    status is not at issue in the difference between the Parties as regards the
                    third preliminary objection. The term “company” is defined thus in Arti-
                    cle III, paragraph 1: “As used in the present Treaty, ‘companies’ means
                    corporations, partnerships, companies and other associations, whether or
                    not with limited liability and whether or not for pecuniary profit.”

                       87. On the basis of this definition, two points are not in doubt and,
                    moreover, give no cause for disagreement between the Parties.
                       First, an entity may only be characterized as a “company” within the
                    meaning of the Treaty if it has its own legal personality, conferred on it
                    by the law of the State where it was created, which establishes its legal
                    status. In this regard, Article III, paragraph 1, begins by stating that
                    “[c]ompanies constituted under the applicable laws and regulations of
                    either High Contracting Party shall have their juridical status recognized
                    within the territories of the other High Contracting Party”.
                       Secondly, an entity which is wholly or partly owned by a State may
                    constitute a “company” within the meaning of the Treaty. The definition
                    of “companies” provided by Article III, paragraph 1, makes no distinc-
                    tion between private and public enterprises. The possibility of a public
                    enterprise constituting a “company” within the meaning of the Treaty is
                    confirmed by Article XI, paragraph 4, which deprives of immunity any
                    enterprise of either Contracting Party “which is publicly owned or con-
                    trolled” when it engages in commercial or industrial activities within the
                    territory of the other Party, so as to avoid placing such an enterprise in
                    an advantageous position in relation to private enterprises with which it
                    may be competing (see paragraph 65 above).

                      88. Two conclusions may be drawn from the above.

                    34

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                    38 	               certain iranian assets (judgment)

                       In the first place, the United States cannot contest the fact that Bank
                    Markazi was endowed with its own legal personality by Article 10, para-
                    graph (c), of Iran’s 1960 Monetary and Banking Act, as amended — and
                    indeed it does not do so.
                       In the second place, the fact that Bank Markazi is wholly owned by the
                    Iranian State, and that the State exercises a power of direction and close
                    control over the bank’s activities — as pointed out by the United States
                    and not contested by Iran — does not, in itself, exclude that entity from
                    the category of “companies” within the meaning of the Treaty.
                       89. It remains to be determined whether, by the nature of its activities,
                    Bank Markazi may be characterized as a “company” according to the
                    definition given by Article III, paragraph 1, read in its context and in light
                    of the object and purpose of the Treaty of Amity.
                       90. In this regard, the Court cannot accept the interpretation put for-
                    ward by Iran in its main argument, whereby the nature of the activities
                    carried out by a particular entity is immaterial for the purpose of charac-
                    terizing that entity as a “company”. According to Iran, whether an entity
                    carries out functions of a sovereign nature, i.e., acts of sovereignty or pub-
                    lic authority, or whether it engages in activities of a commercial or indus-
                    trial nature, or indeed a combination of both types of activity, is of no
                    relevance when it comes to characterizing it as a “company”. It would
                    follow that having a separate legal personality under the domestic law of a
                    Contracting Party would be a sufficient condition for a given entity to be
                    characterized as a “company” within the meaning of the Treaty of Amity.
                       91. In the opinion of the Court, such an interpretation would fail to
                    take account of the context of the definition provided by Article III, para-
                    graph 1, and the object and purpose of the Treaty of Amity. As stated
                    above in respect of the second objection to jurisdiction raised by the
                    United States, an analysis of all those provisions of the Treaty which
                    form the context of Article III, paragraph 1, points clearly to the conclu-
                    sion that the Treaty is aimed at guaranteeing rights and affording protec-
                    tions to natural and legal persons engaging in activities of a commercial
                    nature, even if this latter term is to be understood in a broad sense. The
                    same applies to the object and purpose of the Treaty, as set out in the
                    preamble (quoted in paragraph 57 above), and an indication of which can
                    also be found in the title of the Treaty (Treaty of Amity, Economic Rela-
                    tions, and Consular Rights).
                       The Court therefore concludes that an entity carrying out exclusively
                    sovereign activities, linked to the sovereign functions of the State, cannot
                    be characterized as a “company” within the meaning of the Treaty and,
                    consequently, may not claim the benefit of the rights and protections pro-
                    vided for in Articles III, IV and V.
                       92. However, there is nothing to preclude, a priori, a single entity from
                    engaging both in activities of a commercial nature (or, more broadly,
                    business activities) and in sovereign activities.
                       In such a case, since it is the nature of the activity actually carried out
                    which determines the characterization of the entity engaged in it, the legal

                    35

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                    39 	              certain iranian assets (judgment)

                    person in question should be regarded as a “company” within the mean-
                    ing of the Treaty to the extent that it is engaged in activities of a com-
                    mercial nature, even if they do not constitute its principal activities.
                       93. The Court must therefore now address the question of the nature
                    of the activities engaged in by Bank Markazi. More precisely, it must
                    examine Bank Markazi’s activities within the territory of the United States
                    at the time of the measures which Iran claims violated Bank Markazi’s
                    alleged rights under Articles III, IV and V of the Treaty.

                       94. Given that Iran’s principal argument is that the nature of the activ-
                    ities engaged in is of no relevance when it comes to characterization of an
                    entity as a “company” within the meaning of the Treaty (see paragraph 83
                    above), the Applicant has made little attempt to demonstrate that, along-
                    side the sovereign functions which it concedes, Bank Markazi engages in
                    activities of a commercial nature. It has nonetheless stated, in its written
                    observations, that “[s]ome of Bank Markazi’s activities are also per-
                    formed by private companies (e.g., concluding contracts ; owning prop-
                    erty ; buying securities), and they pertain to commerce”. The Applicant
                    added during the hearings that Bank Markazi “was endowed with capital
                    for the conduct of its operations, which may generate profits on which it
                    must pay tax to the Iranian State” and that it “can . . . enter into con-
                    tracts of any nature, acquire and sell goods and services” (see para-
                    graph 83 above). The United States, for its part, has asserted to the
                    contrary that, like any central bank, Bank Markazi exercises sovereign
                    functions, and has emphasized the fact that, before United States courts,
                    Bank Markazi has always presented itself as a central bank in the tradi-
                    tional sense and not as a commercial enterprise.

                       95. The Court observes that the Monetary and Banking Act of 1960,
                    as amended, containing the statutes of Bank Markazi, was included in the
                    case file by Iran in an English translation which for the most part the
                    United States has not contested. This law contains various provisions
                    defining the types of activities in which Bank Markazi is entitled to
                    engage, the scope of which has not been discussed in detail by the Parties
                    before the Court.
                       96. Under Article 79, paragraph 9, of the Rules of Court, when it is
                    called upon to rule on a preliminary objection, the Court must give its
                    decision “in the form of a judgment, by which it shall either uphold the
                    objection, reject it, or declare that the objection does not possess, in the
                    circumstances of the case, an exclusively preliminary character”.
                       As the Court stated in its Judgment on the preliminary objections in
                    the case concerning the Territorial and Maritime Dispute (Nicaragua v.
                    Colombia) (Preliminary Objections, Judgment, I.C.J. Reports 2007 (II),
                    p. 852, para. 51) :
                           “In principle, a party raising preliminary objections is entitled to
                         have these objections answered at the preliminary stage of the pro-

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                    40 	               certain iranian assets (judgment)

                         ceedings unless the Court does not have before it all facts necessary
                         to decide the questions raised or if answering the preliminary objec-
                         tion would determine the dispute, or some elements thereof, on the
                         merits.”
                      97. In the present case, the Court takes the view that it does not have
                    before it all the facts necessary to determine whether Bank Markazi was
                    carrying out, at the relevant time, activities of the nature of those which
                    permit characterization as a “company” within the meaning of the Treaty
                    of Amity, and which would have been capable of being affected by the
                    measures complained of by Iran by reference to Articles III, IV and V of
                    the Treaty. Since those elements are largely of a factual nature and are,
                    moreover, closely linked to the merits of the case, the Court considers
                    that it will be able to rule on the third objection only after the Parties
                    have presented their arguments in the following stage of the proceedings,
                    should it find the Application to be admissible.
                      Therefore, there is reason to conclude that the third objection to juris-
                    diction does not possess, in the circumstances of the case, an exclusively
                    preliminary character.

                              D. General Conclusion on the Jurisdiction of the Court
                       98. It follows from the foregoing that the first objection to jurisdiction
                    must be rejected, the second must be upheld, and the third does not
                    possess, in the circumstances of the case, an exclusively preliminary

                    character.

                                                          *
                      99. Given that the Court has jurisdiction to entertain part of the claims
                    made by Iran, which, moreover, were not covered in their entirety by the
                    three objections to jurisdiction raised by the United States, it is now nec-
                    essary for the Court to consider the objections to admissibility raised by
                    the Respondent, which seek the rejection of the Application as a whole.

                                                 III. Admissibility

                       100. The Court notes that the United States initially raised two objec-
                    tions to the admissibility of the Application, namely, first, that Iran’s reli-
                    ance on the Treaty to found the Court’s jurisdiction in this case is an
                    abuse of right and, secondly, that Iran’s “unclean hands” preclude the
                    Court from proceeding with this case. The Court observes, however, that,
                    during the oral proceedings, the United States clarified that its first objec-
                    tion to admissibility was an objection based on “abuse of process” and
                    not on “abuse of right”, adding that an applicant who comes with
                    “unclean hands” is committing an abuse of process.

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                    41 	               certain iranian assets (judgment)

                       101. The United States acknowledges that it used the term “abuse of
                    right” in its written submissions, but states that the clarification provided
                    by the Court on the nature of abuse of right and abuse of process in the
                    case concerning Immunities and Criminal Proceedings (Equatorial
                    Guinea v. France) made it more appropriate to characterize the objection
                    it raised as one based on an abuse of process.
                       102. According to Iran, it is too late to raise this new objection. In sup-
                    port of its view, it invokes Article 79, paragraph 1, of the Rules of Court,
                    according to which
                         “[a]ny objection by the respondent to the jurisdiction of the Court or
                         to the admissibility of the application, or other objection the decision
                         upon which is requested before any further proceedings on the merits,
                         shall be made in writing as soon as possible, and not later than three
                         months after the delivery of the Memorial”.

                                                         * *
                        103. The Court begins by recalling that, in the case concerning Immu-
                    nities and Criminal Proceedings (Equatorial Guinea v. France), it consid-
                    ered that “[a]lthough the basic concept of an abuse may be the same, the
                    consequences of an abuse of rights or an abuse of process may be
                    different” (Preliminary Objections, Judgment, I.C.J. Reports 2018 (I),
                     p. 335, para. 146). It further stated that “[a]n abuse of process goes to the
                     procedure before a court or tribunal and can be considered at the pre-
                     liminary phase of these proceedings” (ibid., p. 336, para. 150) and that
                     “abuse of rights cannot be invoked as a ground of inadmissibility when
                     the establishment of the right in question is properly a matter for the
                     merits” (ibid., p. 337, para. 151).
                        104. The Court notes that, in its oral pleadings, the United States sub-
                     mitted that the dispute did not fall within the scope of the Treaty of
                     Amity and that Iran could not therefore seek to found the jurisdiction of
                     the Court on that instrument, an attempt that it characterizes in its Pre-
                     liminary Objections as being “disingenuous”. In the Court’s view, the
                     objection based on abuse of process is not a new objection, but merely a
                     recharacterization of a position already set out by the United States in its
                     Preliminary Objections.
                        105. The Court further notes that, during the oral proceedings, the
                     United States maintained that the “clean hands” doctrine was a subpart
                     of the abuse of process principle. It added that if, however, the Court
                     considered that abuse of process and the “clean hands” doctrine were
                     distinct, the latter had a sufficient basis in international law.
                        106. The Court observes that even if the objections based on abuse of
                     process and on the “clean hands” doctrine may be linked, in the present
                     instance they remain distinct with regard to their scope and the acts relied
                     upon in their support. The Court will first examine the objection based on
                     abuse of process raised by the United States, followed by that based on
                     the “clean hands” doctrine.

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                    42 	               certain iranian assets (judgment)

                                                A. Abuse of Process
                       107. The United States contends that in light of the “exceptional” cir-
                    cumstances of this case, the Court should decline to found jurisdiction on
                    the Treaty of Amity. It points out in particular that the fundamental con-
                    ditions underlying the Treaty of Amity no longer exist between the Par-
                    ties, notably the friendly, commercial and consular relations envisaged
                    therein. It adds that Iran’s attempt to found the Court’s jurisdiction on
                    the Treaty does not seek to vindicate interests protected by the Treaty,
                    but rather to embroil the Court in a broader strategic dispute.

                       108. In addition, the United States maintains that Iran’s claims are
                    abusive because they “subvert” the purposes of the Treaty. Focusing on
                    Iran’s claims in respect of sovereign immunity, it considers that Iran is
                    attempting to rewrite the Treaty, thus violating basic principles of good
                    faith by manipulating the Treaty in disregard of its object and purpose.

                       109. Finally, the United States cites the Northern Cameroons case to
                    assert that Iran’s claims are also incompatible with the Court’s judicial
                    function, because a judgment of the Court on the merits of the present
                    case would, in its view, rest on “a fiction”.
                       110. Iran, for its part, notes that, in this instance, the United States has
                    invoked no “exceptional circumstances” linked to the procedure before
                    the Court. It maintains that the “broader strategic dispute” referred to by
                    the United States is irrelevant to the present case. It also rejects the
                    Respondent’s assertion that the fundamental conditions underlying the
                    Treaty no longer exist between the Parties.
                       111. Responding to the United States’ assertion regarding Iran’s claims
                    in respect of sovereign immunities, the latter reiterates that the Treaty
                    expressly contains a renvoi to international law, which includes the law of
                    sovereign immunities.
                       112. Finally, Iran considers that the Northern Cameroons case relied
                    on by the United States is of no assistance to the latter in this instance,
                    because the issue in that case was the interpretation of a treaty that was
                    no longer in force. According to Iran, submitting a dispute to the Court
                    under a jurisdictional title that is in force, and in a case in which the
                    claims are related to a breach of the treaty in question, cannot be consid-
                    ered an abuse of process. In its oral pleadings, Iran added that the real
                    question was whether the Treaty of Amity was in force, and noted that
                    since it was, it must apply.

                                                         * *
                      113. The Court recalls that, in the case concerning Immunities and
                    Criminal Proceedings (Equatorial Guinea v. France), it stated that only in
                    exceptional circumstances should the Court reject a claim based on a
                    valid title of jurisdiction on the ground of abuse of process. In this regard,

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                    43 	                certain iranian assets (judgment)

                    there has to be clear evidence that the applicant’s conduct amounts to an
                    abuse of process (Preliminary Objections, Judgment, I.C.J. Reports
                    2018 (I), p. 336, para. 150) (see also Certain Phosphate Lands in Nauru
                    (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
                    1992, p. 255, para. 38).
                       114. The Court has already observed that the Treaty of Amity was in force
                    between the Parties on the date of the filing of Iran’s Application, i.e., 14 June
                    2016 (see paragraph 30 above), and that the Treaty includes a compromissory
                    clause in Article XXI providing for its jurisdiction. The Court does not con-
                    sider that in the present case there are exceptional circumstances which would
                    warrant rejecting Iran’s claim on the ground of abuse of process.
                       115. In light of the foregoing, the Court finds that the first objection to
                    admissibility raised by the United States must be rejected.

                                                 B. “Unclean Hands”
                       116. According to the second objection to admissibility raised by the
                    United States, the Court should not proceed with the present case because
                    Iran has come before it with “unclean hands”. The United States alleges
                    in particular that “Iran has sponsored and supported international terror-
                    ism, as well as taken destabilizing actions in contravention of nuclear
                    non‑proliferation, ballistic missile, arms trafficking, and counter-terrorism
                    obligations”. It contends that Iran is seeking relief because of the out-
                    come of the Peterson case, which, in its view, arose from Iran’s support
                    for terrorism.
                       117. The United States recognizes that in the past the Court has not
                    upheld an objection based on the “clean hands” doctrine, but argues that
                    it has not rejected the doctrine either, and that, in any event, the time is
                    ripe for the Court to acknowledge it and apply it. According to the
                    United States, the Court need not address the merits of this case to assess
                    the legal consequences of Iran’s conduct.
                       118. Iran, for its part, rejects the allegations of the United States that
                    it has breached its counter-terrorism, nuclear non-proliferation and arms
                    trafficking obligations. In its view, these allegations are ill-founded and
                    irrelevant to the resolution of the present case, and thus cannot be a bar
                    to the admissibility of the Application.
                       119. Iran also points out that there is uncertainty about the substance
                    and binding character of the “clean hands” doctrine and that the Court
                    has never recognized its applicability.
                       120. In Iran’s view, it is nevertheless clear that the “clean hands” doc-
                    trine cannot be applied at the preliminary objections phase and that it
                    cannot serve as a basis for the inadmissibility of a claim.

                       121. Iran argues lastly that, according to proponents of the “clean
                    hands” doctrine, it only applies when the claimant is engaged in “pre-
                    cisely similar action, similar in fact and similar in law” as that of which it
                    complains. It is of the view that the United States’ objection does not

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                    44 	              certain iranian assets (judgment)

                    satisfy that requirement, since the Respondent has not even claimed that
                    the accusations on which it bases its assertion that Iran has “unclean
                    hands” amount to a violation of the Treaty of Amity.

                                                       * *
                       122. The Court begins by noting that the United States has not argued
                    that Iran, through its alleged conduct, has violated the Treaty of Amity,
                    upon which its Application is based. Without having to take a position
                    on the “clean hands” doctrine, the Court considers that, even if it were
                    shown that the Applicant’s conduct was not beyond reproach, this would
                    not be sufficient per se to uphold the objection to admissibility raised by
                    the Respondent on the basis of the “clean hands” doctrine (Avena and
                    Other Mexican Nationals (Mexico v. United States of America), Judg-
                    ment, I.C.J. Reports 2004 (I), p. 38, para. 47 ; Maritime Delimitation in
                    the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment,
                    I.C.J. Reports 2017, p. 52, para. 142).
                       123. Such a conclusion is however without prejudice to the question
                    whether the allegations made by the United States, concerning notably
                    Iran’s alleged sponsoring and support of international terrorism and its
                    presumed actions in respect of nuclear non‑proliferation and arms traf-
                    ficking, could, eventually, provide a defence on the merits.
                       124. The Court concludes that the second objection to admissibility
                    raised by the United States cannot be upheld.

                                                          *
                     125. In light of the foregoing, the two objections to admissibility of the
                    Application raised by the United States must be rejected.

                                                          *
                                                      *       *

                      126. For these reasons,
                      The Court,
                      (1) Unanimously,
                     Rejects the first preliminary objection to jurisdiction raised by the
                    United States of America ;
                      (2) By eleven votes to four,
                     Upholds the second preliminary objection to jurisdiction raised by the
                    United States of America ;
                      in favour : President Yusuf ; Vice-President Xue ; Judges Tomka, Abraham,
                         Bennouna, Cançado Trindade, Gaja, Crawford, Salam, Iwasawa ; Judge
                         ad hoc Brower ;

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                    45 	               certain iranian assets (judgment)

                      against : Judges Bhandari, Robinson, Gevorgian ; Judge ad hoc Momtaz ;
                      (3) By eleven votes to four,
                      Declares that the third preliminary objection to jurisdiction raised by
                    the United States of America does not possess, in the circumstances of the
                    case, an exclusively preliminary character ;
                      in favour : President Yusuf ; Vice-President Xue ; Judges Abraham, Ben-
                         nouna, Cançado Trindade, Bhandari, Robinson, Gevorgian, Salam, Iwas-
                         awa ; Judge ad hoc Momtaz ;
                      against : Judges Tomka, Gaja, Crawford ; Judge ad hoc Brower ;
                      (4) Unanimously,
                     Rejects the preliminary objections to admissibility raised by the
                    United States of America ;
                      (5) Unanimously,
                      Finds that it has jurisdiction, subject to points (2) and (3) of the present
                    operative clause, to rule on the Application filed by the Islamic Republic
                    of Iran on 14 June 2016, and that the said Application is admissible.

                      Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this thirteenth day of February, two thou-
                    sand and nineteen, 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 Couvreur,
                                                                          Registrar.

                      Judges Tomka and Crawford append a joint separate opinion to the
                    Judgment of the Court ; Judge Gaja appends a declaration to the Judg-
                    ment of the Court ; Judges Robinson and Gevorgian append separate
                    opinions to the Judgment of the Court ; Judges ad hoc Brower and Mom-
                    taz append separate opinions to the Judgment of the Court.

                    (Initialled) A.A.Y.
                      (Initialled) Ph.C.

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