International Law Review

International Law Review

Breach of the Obligation Arising from the Adoption of Inconsistent Domestic Law: Analysis of the Judgment of the International Court of Justice in the Case of Certain Iranian Assets

Document Type : academic

Author
Abdollah Abedini
Faculty Member of the Institution for Research and Development in the Humanities (SAMT)
10.22066/cilamag.2024.2021675.2504
Abstract
According to the definition provided by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001 (the ARSIWA), a breach of an obligation refers to conduct that is inconsistent with a state's obligation. State responsibility consists of two elements: attribution and breach of obligation. Therefore, after attributing an action to a state, it becomes crucial to assess the nature and scope of the breach of obligation. Notably, a state may adopt domestic legislation that is incompatible with its international obligations, even without taking practical measures in line with the implementation of such domestic law. In the judgment of Certain Iranian Assets, the International Court of Justice (the Court) adopted a distinct perspective on the violation of the United States’ obligations arising from the 1955 Treaty of Amity. The Court's approach in deeming the United States’ actions unlawful in relation to Iran's claims, particularly Articles 5 and 10, involves verifying the incompatibility of the United States' legislative, executive, and judicial actions with these provisions, and subsequently seeking objective evidence to declare them as illegal measures against Iran. Therefore, in addressing the main question of this paper, which is whether engaging in conduct inconsistent with an obligation alone constitutes a breach, and whether the Court must require at least one example of such breach in the form of an external manifestation of the specific defect, it is asserted that the criterion for determining a violation mirrors the one outlined in the ARSIWA: the incompatibility of a state's conduct with the content of the obligation.
Keywords
Determination of Breach
1955 Treaty of Amity
International Law Commission
Nature of Obligation
Executive Order 13599

Subjects

  1. - Books

    1. Bartholomeusz, Lance, “Inviolability of Premises (Article II Section 3 General Convention).” in August Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary. Oxford University Press, 2016.
    2. Saul, Ben, “The Implementation of the Genocide Convention at the National Level.” in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary. Oxford University Press, 2009.
    3. Thornberry, Patrick, “Article 2: Obligations to Eliminate Racial Discrimination”. in The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary. Oxford University Press, 2016.
    4. Villiger, Mark, Commentary on the 1969 Vienna Convention on the Law of Treaties. Brill, 2009.
    5. Zach, Gerrit, “Article 2: Obligation to Prevent Torture, in, Nowak, Birk, and Monina (eds.). The United Nations Convention Against Torture and its Optional Protocol: A Commentary. 2nd Oxford University Press.

     

    - Cases and Documents

    1. “Alleged Violations of State Immunities (Islamic Republic of Iran v. Canada).” Application instituting proceedings, 2023.
    2. “Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947.” ICJ Reports, 1988.
    3. “Certain Iranian Assets (Islamic Republic of Iran v. United States of America).” ICJ Reports, 2023.
    4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
    5. Convention on the Prevention and Punishment of the Crime of Genocide, 1948.
    6. Convention on the Privileges and Immunities of the United Nations, 1946.
    7. Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001.
    8. “Fisheries Jurisdiction Case (Spain v. Canada).” ICJ Reports, 1998.
    9. International Covenant on Civil and Political Rights, 1966.
    10. “LaGrand (Germany v. United States of America).” ICJ Reports, 2001.
    11. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” ICJ Reports, 2004.
    12. “Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).” ICJ Reports, 2012.
    13. Treaty on the Prohibition of Nuclear Weapons, 2017.
    14. UN General Assembly Resolution 181, 1947, Part III, City of Jerusalem.

  • Receive Date 30 January 2024
  • Accept Date 16 March 2024