International Law Review

International Law Review

Jurisdictional Immunities of States and Their Property in International Law: Analyzing the ICJ Decision in the Case of Certain Iranian Assets

Document Type : academic

Authors
Meisam Norouzi 1
Saber Habibi Savadkohi 2
Mehdi Shayanmehr 3
Seyyed Ali Tabatabai Nesab 4
1 Meisam Norouzi. Assistant Prof in public of international law, Department of law, Faculty of humanities, Bu-Ali Sina University, Hamadan, Iran
2 Saber Habibi Savadkohi, Assistant Prof. Department of Law, Faculty of Humanities, Islamic Azad University, Tehran East Branch, Tehran, Iran.
3 Mehdi Shayanmehr, Ph.D. Student in International Law, Department of Law, Faculty of Humanities, Islamic Azad University of Hamadan, Hamadan, Iran.
4 Seyyed Ali Tabatabai Nesab, PhD. In International Law, Instructor, Faculty of Humanities, Islamic Azad University, Tehran East Branch, Tehran, Iran.
10.22066/cilamag.2024.2021590.2501
Abstract
The principle of state immunity and the protection of state assets under international law have undergone a progressive evolution over time. Rooted in customary international law, this principle finds support in general and special treaties, customary rules, and judicial practice. It establishes that all property, locations, possessions, and tangible and intangible assets belonging to a State located in another jurisdiction must be respected are to be accorded respect and safeguarded against any form of attack or interference by administrative or executive actions. However, exceptions to immunity have emerged in light of the evolving nature of international law. In this regard, the United States courts, invoking the Anti-Terrorism and Effective Death Penalty Act passed by Congress in 1996, have seized assets and properties belonging to the Iranian government, especially the bonds of Bank Markazi, on the grounds that Iran is considered a state sponsor of terrorism. Subsequently, Iran initiated legal proceedings against the United States before the International Court of Justice on June 14, 2016, alleging breaches of state immunity and the Treaty of Amity. The Court issued a jurisdictional ruling on February 13, 2019, and a substantive verdict on March 30, 2023. This research critically examines whether the Court considered (the assets of) the Central Bank of Iran as a sovereign and State entity entitled to immunity, or whether it construed the Bank as a corporate entity under the purview of the Treaty of Amity of 1955. Recruiting a descriptive-analytical approach to examine relevant treaties and court decisions, it concludes that, due to the sovereign nature of Bank Markazi of Iran, the seizure of assets belonging to this government institution falls outside the protective scope of the Treaty of Amity. Consequently, the Court possesses the authority to adjudicate on the issue of immunity concerning Bank Markazi. Notably, the Court's 2023 decision deviates from its previous 2019 decision, acknowledging the sovereign nature of Bank Markazi and the customary rule governing the dispute.
Keywords
Bank Markazi
International Law
International Court of Justice
Treaty of Amity
State Immunity
State Assets

Subjects

  1. - Books

    1. Bankers, Ernest K. The State Immunity Controversy in International Law: Private suits against Sovereign States in domestic Courts, 1st Berlin: Springer, 2005.
    2. Clive, Parry and John P. Grant, and J. Craig Barker. Parry & Grant Encyclopaedic Dictionary of International Law. New York: Oxford University Press, 2009.
    3. Combacau, Jean and Serge Sur, Droit international public, 4e édition, Montchrestien, 1999.   
    4. Katzman, Kenneth, Iran Sanction, Congressional Research Service, Grs Report Prepared for Members and Committees of Congress, 7-5700, Rs20871, US, Library of Congress, 2017.
    5. Malanczuk, Peter, Akehurst´s Modern Introduction to International Law, 7th Taylor & Francis e-library, Landon and New York, 2002.
    6. Shaw, Malcom, International Law, 6th Cambridge university press, 2008.

     

    – Articles

    1. Finke, Jasper, “Sovereign Immunity: Rule, Comity or Something Else?ˮ European Journal of International Law 21, no. 4 (2011).
    2. Karagiannakis, Magdalini, “State immunity and Fundamental Human Rights.” Leiden Jornal of International Law 11, (1998).
    3. Lauterpacht, Elihu, and Christopher J. Greenwood, “International Law Reports,ˮ Libyan Arab Socialist Peoples Jamhahirian V. Actimon SA, Switzerland, Federal Tribunal 82, (1985).
    4. Nagan, Winston, and Root, Joshua, “The Emerging Restrictions on Sovereing Immunity: Peremptory Norms of International Law, the UN. Charter, and the Application of Modern Communications Theory.” UF Law Scholarship Repository, (2013).
    5. Wagner, Megan L. “Jurisdiction by Estoppel in the International Court of Justice.” California Law Review 74, no. 5 (1986).

     

    - Cases

    1. AIG Capital Partners Inc. v. Republic of Kazakhstan (2005) EWHC 2239 (Comm), 2006, 1 WLR 1420.
    2. Bank Markazi v. Peterson et al. United States Supreme Court, 20 April 2016, 578 U.S. 1, 2016.
    3. Ceskoslovenska Obchodni Banka, A.S. v. Slovak Republic (ICSID Case No. ARB/97/4)”, icsid.worldbank, last accessed May 17, 2017.
    4. ICJ Reports, Case Concerning “Certain Iranian Assets” (Islamic Republic of Iran V. United States of America), 2017.
    5. C.J Report, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 2012.
    6. New England Merchants National Bank v. Iran Power and Others, 502 F.Supp. 120 Generation and Transmission Co S.D.N.Y. 1980.
    7. Trendtex Trading Corp. Ltd v. Central Bank of Nigeria, 1977.
    8. Peterson et al. v. Islamic Republic of Iran et al., United States District Court, Southern District of New York, 2013.

     

    - International Documents

    1. Charter of the United Nations, Article 2, para. 1.
    2. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Application Instiuting Proceedings, 14 June 2016.
    3. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019.
    4. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2023.
    5. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Verbatim Record (Mohsen Mohebi) of 12 October 2018.
    6. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Verbatim Record (Mohsen Mohebi), of 11 October 2018.
    7. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Verbatim Record (Richard C. Visek) of 8 October 2018.
    8. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Verbatim Record (Richard C. Visek) of 11 October 2018.
    9. Certain Iranian assets (Iran v. USA), Judgment, I.C.J. Reports 2023, Separate Opinion of Judges Benona & Salam & Rabinson & Momtaz.
    10. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment I.C.J Report 2012. Separate Opinion of Bennouna, para. 3.
    11. United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004, UN Doc A/RES/59/38.
    12. United States Foreign Sovereign Immunities Act (FSIA), Public Law. No. 94, 1976.
    13. The Swedish Supreme Court: Certain property owned by a central bank is not protected from enforcement according to international principles of state immunity.” Available at: https://www.magnussonlaw.com/news/, last accessed on March 6, 2024.

  • Receive Date 29 January 2024
  • Revise Date 09 March 2024
  • Accept Date 12 February 2024