The United States and the “World Court”

The United States and the “World Court”

Legal Sidebari

The United States and the “World Court”
October 17, 2018
The Trump Administration recently announced plans to reevaluate the United States’ role before the
International Court of Justice (ICJ)—commonly called the “World Court.” This year, Iran and the
Palestine Liberation Organization (PLO, designated as “Palestine” or “State of Palestine” within the U.N.
system) initiated separate proceedings against the United States at the international tribunal. After the ICJ
made a preliminary determination, over the United States’ objections, that it had jurisdiction to hear Iran’s
claims, the Trump Administration announced that the United States will withdraw from the treaties on
which both the Iran and PLO cases are based. The Administration also stated that it will review all other
international agreements “that may still expose the United States” to ICJ jurisdiction.
Some prior presidential Administrations have taken similar actions to narrow the ICJ’s jurisdiction.
Several decades ago, the Reagan Administration withdrew U.S. recognition of the ICJ’s compulsory
jurisdiction over a broad range of international legal disputes. And, in 2005, the George W. Bush
Administration withdrew from an international agreement giving the ICJ jurisdiction over disputes
between the United States and other parties to a consular convention. This Legal Sidebar reviews the most
recent ICJ proceedings against the United States by Iran and the PLO and the implications for Congress
of the Trump Administration’s withdrawal decision.
Background on the ICJ
The ICJ is the “principal judicial organ” of the United Nations. The tribunal’s functions are governed by
the ICJ Statute—an annex to and “integral part” of the U.N. Charter. Under Article 93 of the Charter,
which the United States ratified in 1945, all member-nations of the United Nations also are parties to the
ICJ Statute.
Although the ICJ is part of the U.N. system, it does not have jurisdiction over all disputes between U.N.
member-states. With the exception of “advisory opinions,” which are non-binding, the ICJ may only
resolve legal disputes between nations that voluntarily agreed to its jurisdiction. Some countries have
submitted declarations submitting to the court’s compulsory jurisdiction in a wide array of matters
outlined in Article 36(2) of the ICJ Statute. The United States submitted such a declaration in 1946. But it
withdrew that declaration in 1985 after the ICJ accepted jurisdiction over a dispute with Nicaragua that
the Reagan Administration argued was an “inherently political problem” inappropriate for judicial
resolution.
While the United States is no longer subject to the ICJ’s broad compulsory jurisdiction, individual treaties
may contain clauses that give the ICJ jurisdiction on a treaty-by-treaty basis. A 2008 study found that the
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United States was a party to more than 80 international agreements with ICJ clauses. This treaty-based
jurisdiction is at issue in the Iran and PLO cases, but the Trump Administration’s most recent withdrawal
announcement does not automatically terminate the ICJ proceedings in either case. Based on prior ICJ
jurisprudence, the ICJ’s jurisdiction is determined at the time of filing, and, once established, is not
terminated by withdrawal from the jurisdiction-creating instrument.
Iran v. United States
Iran instituted proceedings at the ICJ in July 2018 after President Trump announced the United States’
plan to re-impose sanctions that had been lifted pursuant to the Joint Comprehensive Plan of Action
(JCPOA), commonly called the “Iran nuclear deal.” The JCPOA is not a binding international agreement
and does not have an ICJ jurisdiction clause. Thus, rather than cite a violation of the nuclear deal itself,
Iran contends that reinstitution of U.S. sanctions violates the United States’ obligations under a 1955
bilateral Treaty of Amity, Economic Relations, and Consular Rights (Treaty of Amity) to, among other
things, allow freedom of commerce and navigation between the two nations. Article XXI of the Treaty of
Amity grants the ICJ jurisdiction over disputes concerning the treaty’s interpretation and application.
The United States objected to the ICJ’s jurisdiction, arguing that the true nature of Iran’s claims arose
from the JCPOA, not the Treaty of Amity. And even if U.S. sanctions were relevant to the Treaty of
Amity, the U.S. asserted, the sanctions were permitted by Article XX of that treaty, which authorizes both
nations to protect their “essential security interests.” In a preliminary ruling the ICJ sided with Iran and
concluded that the Treaty of Amity appeared, at least on a preliminary basis, to provide it jurisdiction
(although the “essential security interests” clause may be a defense on the merits). The ICJ also granted
certain “provisional measures”—or temporary relief pending a final decision—but its award falls far short
of the relief Iran requested. Whereas Iran asked that the ICJ order the United States to lift all sanctions
that had been withdrawn under the JCPOA, the ICJ only directed the United States to allow trade in
certain “goods required for humanitarian needs” and financial services necessary to facilitate such trade.
This is not the first time the ICJ has heard a case over the Treaty of Amity. In 1980, the ICJ concluded that
Iran violated the treaty by failing to protect U.S. nationals during the Iran hostage crisis (discussed here).
In the 1992 Oil Platforms case, which Iran filed after U.S. forces allegedly attacked Iranian oil rigs used
to mine the Persian Gulf, the ICJ rejected both Iran’s claims and the United States’ counter-claims arising
out of the Treaty of Amity. And in a still-ongoing case initiated in 2016, Iran contends that the U.S.
violated the treaty by allowing U.S. courts to attach certain Iranian assets to satisfy civil judgments
awarded to victims of terrorism. Given this history and the contentious state of U.S.-Iran relations
(discussed here), Secretary of State Pompeo announced that the United States will withdraw from the
Treaty of Amity.
“Palestine” (PLO) v. United States
The PLO instituted proceedings at the ICJ in September 2018, claiming that the United States violated the
1961 Vienna Convention on Diplomatic Relations (VCDR) by moving its embassy from Tel Aviv to
Jerusalem. The VCDR creates an international legal framework governing the rights and duties of
diplomatic officials and missions, and an Optional Protocol to the convention grants the ICJ jurisdiction
to resolve disputes that arise out of the interpretation or application of the VCDR.
The PLO argues that the VCDR requires a diplomatic mission to perform its functions within the territory
of a “receiving state.” According to the PLO, Jerusalem is not part of Israeli territory because it is subject
to international administration under earlier U.N. General Assembly and Security Council resolutions.
Therefore, the PLO argues, the U.S. Embassy in Israel is not in the territory of the “receiving state,” as
mandated by the VCDR.
While the ultimate result of the suit depends on a number of factors and cannot be predicted with
certainty, the United States possesses a number of potential counter-arguments and defenses. When the

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PLO provided notification that it would become a party to the VCDR and its Optional Protocol, the U.S.
Mission to the United Nations objected, stating: “the Government of the United States of America
believes that the ‘State of Palestine’ is not qualified” to join to the treaties. Thus, it appears that the United
States may challenge whether “Palestine” has achieved international legal status for statehood necessary
to enforce the VCDR at the ICJ. The United States also might argue that, regardless of the status of
Palestinian statehood, only the receiving state (here, Israel) has sufficient “legal right or interest” in the
VCDR’s provisions concerning embassy location to confer standing at the ICJ.
Earlier ICJ jurisprudence suggests that the international tribunal may not adjudicate claims that involve
the legal interests of third-party nations without those nations’ consent. Because the PLO’s suit implicates
Israel’s territorial claims to Jerusalem, the ICJ may refrain from resolving the case without Israel’s
approval. Finally, the United States might challenge the merits of the PLO’s interpretation of the VCDR.
The PLO argues that the treaty requires embassies to be located within the territory of the receiving state,
but commentators disagree on whether this reading is consistent with the treaty’s text and state practice.
No proceedings have been held in the PLO case thus far, and the ICJ has not submitted any preliminary
rulings. On October 3, 2018, the Trump Administration announced that it would withdraw from the
Optional Protocol which creates ICJ jurisdiction, but it will remain a party to the VCDR itself.
Implications for Congress
Whereas the ICJ cases raise complex policy questions over the role of international tribunals in foreign
affairs, the Trump Administration’s treaty termination decisions may implicate constitutional concerns
over the separation of powers. The executive branch ratified the Treaty of Amity and the Optional
Protocol to the VCDR only after receiving the Senate’s consent; yet, it appears to have announced its
withdrawal from those agreements without seeking formal approval from the legislative branch. As
detailed in this Report, the termination of treaties typically involved joint action by the executive and
legislative branches until the 20th century when unilateral termination by the Executive became the norm.
Some Members of Congress have contested unilateral executive authority in the past, but judicial
challenges have been dismissed, often on grounds that they raise nonjusticiable questions left to the
political branches to resolve. The Trump Administration’s recent withdrawals—and any future
withdrawals resulting from its review of all treaties with ICJ clauses—could establish additional historical
precedent for unilateral executive withdrawal power.

Author Information

Stephen P. Mulligan

Legislative Attorney

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