US Should Seize on ICJ Ruling to Avert Global Energy Insecurity: Canadian Lawyer

TEHRAN (Tasnim) – An international lawyer said US officials, instead of rejecting an international court ruling against American sanctions on Iran, should be astute enough to seize on the decision and tone down their war rhetoric against Tehran to stop an inevitable “global energy insecurity”.

US Should Seize on ICJ Ruling to Avert Global Energy Insecurity: Canadian Lawyer

“Indeed, in my view, if US decision makers are even just half as astute as they tend to be given credit for, they will seize on this ICJ decision as a timely excuse for toning down US attacks on Iran and, more particular, demands that all nations stop buying Iranian oil, so that the threat of a regional conflagration and the global energy insecurity that would inevitably bring, can be avoided,” Barry Grossman, who is based on the Indonesian island of Bali, told Tasnim in an interview.

“…we all know that, like Israel and to a somewhat lesser extent, the UK and France, the USA considers itself far too special and exceptional to be in any way bound by the ICJ, by the United Nations more generally, or indeed, by the very same system of international laws, treaties, and conventions it so often invokes to hold other nations to account,” he added.

Following is the full text of the interview.

Tasnim: The UN’s international court of justice on Wednesday reprimanded the US over its re-imposition of sanctions on Iran and ordered Washington to lift restrictive measures linked to humanitarian trade, food, medicine and civil aviation. What is your take on the ruling?

Grossman: It is important to understand that this decision was merely an interim ruling, with the final decision to follow a long and complicated process. That said, it was a pleasant and unexpected surprise that the court demonstrated its willingness to manifest the independence and courage needed to reject, for the time being, the various technical arguments made by the US, among other things, contesting jurisdiction, blaming Iran itself for the unilateral sanctions imposed by the US, and claiming that those sanctions were somehow necessary to protect US national Security interests.

That said, all those issues remain “live”, bearing in mind that this was merely an interim decision providing some temporary relief fashioned with a view to maintaining the pre-sanctions status quo pending a final determination of the case.

In that regard, the same principles which typically apply in applications for interim relief in routine commercial disputes were for the most applied by the Court in this case. Specifically, the Court found that the Applicant, that is Iran, needed only to establish at this stage that there was an arguable case that the impugned US measures may violate Iran’s rights under the 1955 Treaty of Amity. The Court ruled that Iran had in fact established that it has an arguable case, notwithstanding US objections on the grounds of jurisdiction, national security, and an argument which in effect claimed that the diplomatic negotiating process which accompanied the JCPOA somehow displaced provisions in the Treaty of Amity which prescribe that any dispute under that Treaty be referred to the ICJ for resolution.

That much decided, the court turned its attention to the question of interim relief and in doing so once again invoked the same principles which have long applied in commercial disputes, namely that the court ought to make orders to in effect maintain the status quo which existed prior to the alleged breach, with a view to preventing the aggrieved party from suffering irreparable harm prior to the court’s final decision.

However, the ICJ at that point introduced a very disappointing twist in its interim judgment which, unlike the very broad approach to the kinds of apprehended loss or damage embraced by the concept of irreparable harm taken in ordinary commercial cases involving application for interim relief, saw the court inexplicably and without much discussion of the related legal principles, take the position in fashioning interim relief, only harm to the physical health and safety of Iranians that may potentially arise from the impugned US measures should be considered as irreparable harm and therefore appropriate for some kind of interim remedy. As a result, the court focused very narrowly on measures which might affect Iran ability to import foodstuffs, products needed for humanitarian aid, medicine and medical equipment and aviation spare parts, without so much as mentioning any impact the impugned US measures will have on Iranian exports and its economy more generally. Indeed, as I was listening to the judgment being read, I was somewhat astounded that the words “exports” and “oil” were not even mentioned in the judgment.

Indeed, this part of the court’s decision comes across to me as the ramblings of a less than competent lawyer who has had some experience with commercial litigation involving causes of action which do not provide for the recovery of damages for purely economic loss. Such distinctions, in my opinion, have absolutely no application in a case like this based on public international law.

In any case, you don’t have to be very clever or knowledgeable to understand that the risks to public health and safety presented by obstacles to the importation of humanitarian aid, foodstuffs, medicine and aviation spare parts, pales into relative insignificance compared to the illness, loss of life, civil unrest and general suffering intended, according to various public statements made by US officials like Mike Pompeo, Nikki Haley, John Bolton and even President Trump himself, as the inevitable consequences of the impugned US measures, described by President Trump as the strongest sanctions in history and clearly conceived with the aim of wreaking havoc with Iran’s economy and internal security. 

Then there is the not so small matter of unilateral US demands that all nations stop buying oil from Iran not later than November 4, and the very stark implications that has for regional security and global energy security and, of course, the very same rights under the 1955 Treaty of Amity which the court was ostensibly fashioning an interim remedy to protect.

That the court was able to find in Iran’s favor pretty much on all points of substance at this interim stage but entirely failed to address itself to the pending doom and catastrophe openly promised to Iran by this US administration is nothing less than scandalous and a cynical concession to the politics of power. 

Tasnim: According to the verdict, which was read out by Judge Abdulqawi Ahmed Yusuf, Washington "shall remove by means of its choosing any impediments arising from the measures announced on May 8 to the free exportation to Iran of medicines and medical devices, food and agricultural commodities" as well as airplane parts. Do you believe that Washington will abide by the ruling?

Grossman: Well we all know that, like Israel and to a somewhat lesser extent, the UK and France, the USA considers itself far too special and exceptional to be in any way bound by the ICJ, by the United Nations more generally, or indeed, by the very same system of international laws, treaties, and conventions it so often invokes to hold other nations to account. 

In that regard, we have already seen this administration abuse and threaten any nation which disagrees with it in the UN General Assembly and the Security Council.

We have seen this administration withdraw the US from participation in the United Nations Human Rights Council and, together with Israel, threaten the very existence of the International Criminal Court.

We have long witnessed the United States thumbing its nose at ICJ decisions and, more particularly, at ICJ decisions declaring various measures adopted by the occupying regime in Palestine to be unlawful, with this US administration going so far as to disregard long-standing US policy, international law, and the position embraced by pretty much the entire civilized world regarding the status of Jerusalem, in favour of unilaterally and illegally recognising Jerusalem as the capital of Israel.

Indeed, we have long witnessed the United States wage unlawful belligerent wars under false pretenses and in violation of both global opinion and international law, war crimes, and other clandestine military interventions, as often as not, targeting unidentified civilians in other sovereign nations. We watched the US ignore the United Nations and wage belligerency invasions killing millions in Afghanistan and Iraq, as well as leading the way for the illegal invasion and destruction of both Libya and Iraq, not to mention US involvement in the belligerent Saudi/UAE led war on Yemen.

So when you ask me if I expect the US to abide by the ICJ interim decision in this case brought by Iran, no, I certainly do not. 

That said, the current political dynamic which sees the EU squarely at odds with the US on pretty much every issue arising, in this case, does give some hope that the US will have to tread somewhat more lightly than usual in order to avoid fully alienating its European allies and thereby triggering a series of developments which can only further isolate the United States.

Indeed, in my view, if US decision makers are even just half as astute as they tend to be given credit for, they will seize on this ICJ decision as a timely excuse for toning down US attacks on Iran and, more particular, demands that all nations stop buying Iranian oil, so that the threat of a regional conflagration and the global energy insecurity that would inevitably bring, can be avoided. 

Tasnim: In response, the United States said it was terminating a 1955 treaty reached with then ally Iran after Tehran cited it in an international court ruling against Washington's sanctions policy. "I'm announcing that the US is terminating the 1955 Treaty of Amity with Iran. This is a decision, frankly, that is 39 years overdue," Secretary of State Mike Pompeo told reporters, referring to the date of the 1979 Islamic revolution. Pompeo described the ruling as a "defeat for Iran." Do you think it was a defeat for Iran or the US?

Grossman: For a man reputed to be extremely clever, it was absurd of Pompeo to claim that the ICJ’s interim ruling was a defeat for Iran. Every argument made by the US was rejected by the court and pretty much every argument of substance made by Iran was accepted. Yes, the court seems to have lost its nerve in formulating an absurdly narrow set of interim orders but that can almost certainly be explained by the US lobbying and threats directed at the court.

Let me put it this way: on listening to the reading of the court’s decision in somewhat stunned disbelief, the first image of the United States that came to mind for me was of a boxer heavily favoured to win about, stumbling blindly to his corner dazed, bloodied and badly in need of smelling salts, after being knocked from pillar to post in the first round of a fight the challenger was expected to have no chance whatsoever of surviving.

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