On 3 October 2018, the International Court of Justice (“the Court”) handed down its decision on provisional measures in the Islamic Republic of Iran’s (“Iran”) case against the United States of America (“United States”) for alleged violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (“Treaty of Amity”).
The case arose out of the issuing by United States President Donald Trump of a National Security Presidential Memorandum ending the United States’ participation in the Joint Comprehensive Plan of Action (“JCPOA”), a multilateral plan designed to monitor and manage Iran’s compliance with its nuclear disarmament by lifting sanctions imposed on Iran by major world powers, including the United States. The President ordered that sanctions lifted under the Obama Presidency be reimposed.
Iran’s claim was essentially that the United States has violated the Treaty of Amity by imposing sanctions on Iran and it sought provisional measures to have the United States suspend the sanctions. The Judgment in its entirety has been explored in detail elsewhere, so my focus will be on the separate opinion of Judge Cançado Trindade and its implications for the philosophy of public international law.
Judge Cançado Trindade’s opinion focused on three aspects of Iran’s claim: (a) treaties as living instruments in the progressive development of international law; (b) the Court’s duty to the realisation of justice; and (c) the prioritisation of this duty to the realisation of justice over the invocation of “national security interests”: [4].
Treaties as living instruments
Judge Cançado Trindade notes at the outset that ‘[t]reaties are living instruments’ and endorses a process of ‘evolutionary interpretation’, which involves the terms of a treaty being interpreted in a manner which evolves depending on the development of international law: [7] citing Dispute regarding Navigational and Related Rights at[64].
Judge Cançado Trindade said that the basis for an evolutionary approach could be found in Article 31 of the Vienna Convention on the Law of Treaties which details the process by which a treaty should be interpreted: [9] and [10]. He said that this was particularly important for treaties of amity which state as their purposes the maintenance of ‘firm and enduring peace and sincere friendship between’ the relevant States: Oil Platforms at[52].
This commitment to the treaty as a living instrument is interesting, particularly given that it formed no part of the Judgment of the Court in this case.
The existence of the Court’s prima facie jurisdiction
Moving to the second issue, which has more of a philosophical aspect, Judge Cançado Trindade notes the International Court of Justice’s mission to the realisation of justice: [16]. This is particularly significant because the three documents cited by Judge Cançado Trindade to support this proposition are his writings on this issue. Indeed, it has been part of his Excellency’s jurisprudence since he sat as President of the Inter-American Court of Human Rights, as seen, for example, in his separate opinion in the 2001 IACHR case of Hilaire v Trinidad and Tobago at [4] and [37].
I was unable to find mentions of this mission in any judgments of the Court; however, interestingly, it was reflected in the remarks of former ICJ Judge Hisashi Owada earlier this year, where his Excellency noted that the ICJ plays a vital role as it ‘signifies that international peace and security is to be maintained in parallel with the realization of justice’.
The preference of the ‘realisation of justice’ over national security interests
This final – and most substantial – part of Judge Cançado Trindade’s separate opinion similarly focuses on the philosophyunderpinning the Court’s decisions, but is based more substantially on the ICJ’s case law.
The Judge’s arguments in this section are based on decisions in which his Excellency considers that the Court has prioritised the protection of rights above national security concerns invoked by a State. This thesis relies on the provisional measures orders made by the Court in Seizure and Detention of Certain Documents and Data; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination; and the Jadhav Case, cases in which Australia, Russia and Pakistan, respectively, each invoked national security concerns but were ordered to take provisional measures by the Court. However, as discussed above, the Court did not discuss these issues in the philosophical way used by Judge Cançado Trindade.
The Judge uses, however, these precedents as the basis of his elucidation of the roles that values play in international law, noting:
‘The idea of objective justice and human values stands above facts, which per se do not generate law-creating effects; ex conscientia jus oritur. The imperative of the realization of justice prevails over manifestations of a State’s “will” (paras. 64 and 66). My position, in the realm of provisional measures of protection, has been a consistently anti-voluntarist one. Conscience stands above the “will”’: [26].
This anti-voluntarist vision of public international law has strong links to the natural law school in legal philosophy, and contextually, the emergence of concepts of human rights and jus cogensnorms after World War II, as Koskenniemi noted in his 2006 Fragmentation Study.
This philosophical discussion is also reflected in the individualistic focus which Judge Cançado Trindade has adopted throughout his jurisprudence, as has been noted by Koslowski. Judge Cançado Trindade emphaises the importance of the individual as a subject of public international law, by reference to historical context:
‘As to contemporary law of nations (after the II world war), may it be recalled that the 1945 U.N. Charter itself, as adopted in one of the rare moments – if not glimpses – of lucidity in the XXth. century, – followed three years later by the 1948 Universal Declaration of Human Rights, – proclaimed, in its preamble, the determination of “the peoples of the United Nations” to “save succeeding generations from the scourge of war”, and, to that end, to “live together in peace with each other as good neighbours”. The draftsmen of the U.N. Charter made a point of making it refer to peoples – rather than States – of the United Nations. The U.N. Charter, as from the moment of its adoption, surpassed the strictly reductionist inter-State outlook’: [68].
It is slightly unclear why this deeply natural law-influenced, individualistic focus has been taken in a separate opinion about economic sanctions which, while they have been devastating to the Iranian economyand therefore the Iranian people, are not acts of discrimination and terrorist financing as was alleged in the Ukraine/Russia dispute. Those questions are not answered either by Judge Cançado Trindade’s opinion or by any academic literature on this topic.
However, the most important part of Judge Cançado Trindade’s thesis that international law has – and should have – a ‘preventive dimension’:
‘The moving towards the consolidation of the autonomous legal regime of provisional measures of protection, in my perception, gradually enhances the preventive dimension of international law. In doing so, contemporary international tribunals give a relevant contribution to the avoidance or prevention of irreparable harm in situations of urgency, to the ultimate benefit of human beings, and to secure due compliance with the ordered provisional measures of protection’: [42].
This is potentially the most powerful argument that Judge Cançado Trindade makes in his opinion. It is reflected in the emergence of preventive norms, most notably in the ‘responsibility to protect’, more popularly known as ‘R2P’. This recognises the idea that State sovereignty imbues States not only with rights, but with responsibilities: Report of the International Commission on Intervention and State Sovereignty at [2.14]-[2.15].
Conclusion
It is unclear what effect Judge Cançado Trindade’s separate opinion will have. Separate opinions have been uncharitably described in the past to authors Lillich and White by ICJ Judges as ‘exercises in academic irrelevancy’.
However, perhaps, Judge Cançado Trindade’s piece will encourage more Judges to consider more actively the role that international courts and tribunals play in the protection of individuals and the evolution of State sovereignty into a modern, responsive force for the benefit of its citizens, which can only be beneficial.
Molly Thomas is a Judge’s Associate at the Supreme Court of Queensland. She holds the degrees of Bachelor of Arts (French & Spanish) and Bachelor of Laws (Hons I) from The University of Queensland. She is an Assistant Editor of the ILA Reporter.