Protection of Atmosphere

• Iran stressed that the “essential importance of the atmosphere for sustaining life on Earth” and commended the Commission for the adoption of draft guidelines and its commentaries on the second reading. For Iran “an equitable utilization of atmosphere cannot be realized without affording due consideration to the benefit of the international community as a whole, especially developing countries and the most vulnerable groups.”

• Iran preferred the concept of “common concern of humankind,” instead of “pressing concern of international community,” since the concept of “common concern of humankind” is a well-known concept which has already been supported and reflected in a preambular paragraph of the 2015 Paris Agreement.

• Regarding Draft Guideline 7, Iran maintained that “the phrase ‘intentional large-scale modification’ is not clear enough and it shall be determined what activities is a large-scale modification and what is the impact of the distinction made by referring to the element of intentionality in this guideline.”

• Regarding Guideline 8, Iran referred to the necessity of obligation to cooperate for the protection of the atmosphere; and welcomed the addition of the word “technical.” In this connection, Iran’s representative referred to the inhumane and illegal unilateral coercive measures imposed on the Islamic Republic of Iran as the main impediment to any cooperation in this area. With the unilateral coercive measures, among other impediments to the transfer of advanced technologies, including technologies relating to renewable energies prohibited, inter alia, import of medicines and pesticides for agriculture, livestock and poultry, the industry has faced considerable barriers including problems in commerce and transferring of funds. Thus, Iran proposed that where the cooperation is endorsed as an obligation and where the negative impact will extend to the international community as a whole, the obligation shall be accompanied by a clause containing an obligation to refrain from imposing measures that render cooperation impossible.

• Regarding Draft Guidelines 10 and 11, Iran states that these guidelines shall be read together with Draft Guideline 8 on the obligation to cooperate. In most cases, implementation and compliance of the obligation depend on the scientific and technical knowledge which are exclusively owned by developed countries. In the circumstances in which a considerable number of States lack the capability to comply with obligations under international law, incurring international responsibility would not have the necessary efficiency. Thus, we propose strengthening the frameworks for cooperation instead of elaboration on State responsibility.

Provisional Application of Treaties

• Iran believed that “Article 25 of the VCLT on the provisional application of treaty merely offered States the possibility of provisional application without the imposition of any obligation. As a result, the provisional application would not serve as a basis for restricting States’ rights with regard to their future conduct in relation to the treaty that might be provisionally applied.”

• In this connection, Iran supported the view that no element relating to Article 18 of the VCLT be incorporated into the draft guideline, inter alia, and stressed that there is a substantial difference between Article 18 regime and Article 25 regime of the VCLT.

• With respect to a resolution, decision, or other act adopted by an international organization or at an intergovernmental conference might, Iran submitted that they would have an effect, only if, the State concerned agreed upon the binding nature of them.

• Regarding Guideline 6, Iran provided that the provisional application of a treaty only produces limited legal effects during the specific period in which it is mutually agreed upon its application. Iran maintained that “the principle of consent prevailing in international law and, particularly, the law of treaties as well as flexibility and non-binding nature of the proposed provisions as the core elements of the provisional application of treaties indicates the different characteristics of the topic. Thus, defining a responsibility regime, through analogy in Guideline 8 is inconsistent with the nature of the regime of the provisional application. This guideline would undermine the willingness of countries to apply treaties provisionally.”

Immunity of State Officials from Foreign Criminal Jurisdiction

• Iran expressed its disappointment with the manner in which draft Article 7 has been provisionally drafted since this Draft Article is still “a central issue for the Commission.” For Iran, Draft Article 7 is without prejudice in relation to the immunity ratione personae. Referring to the case law of the European Court of Human Rights affirmed in the case of Jones v. United Kingdom, in the judgment of 14 January 2014, Iran articulated that the “Immunity of State officials, which derives from immunity of States lasts during their tenure in office. Other officials – and all former officials – enjoy conduct-based immunity, which lasts forever but applies only to acts taken in an official capacity.” Also, the judgment of 3 February 2012 of the International Court of Justice was cited by Iran, “wherein it implies that the substantial rules of international law cannot overcome procedural rules.” While Iran admitted that immunity does not mean a lack of responsibility, at the same time, Iran stated that limiting the scope of immunity in favor of the responsibility of State officials shall be grounded on coherent State practices.

• Instead of enlisting specific crimes, such exception is best to be applied solely with regards to the most serious crimes of international concern as there is doubt whether State practice and jurisprudence support the inclusion of crimes, such as torture or enforced disappearance, under the scope of exceptions to the immunity ratione materie from foreign criminal jurisdiction.

• Draft Article 17 shall be read together with Draft Article 7. Under the circumstances in which there are considerable controversies over Draft Article 7 and the statements of States in the Sixth Committee over the course of previous years, Draft Article 17 will be applied only as a dispute production machine which will escalate tensions in relations between States.

• The final clauses, including a dispute settlement clause, sense only if the final product will be a treaty. While the Commission had yet to decide on the final product of the topic, it seems the time is not ripe enough to include such a clause in the Draft. Moreover, in light of its relationship with the Sixth Committee, the Commission mostly avoided inserting such clauses in its final drafts from the beginning of its work.

• It is also important to remind that the work on “peremptory norms of general international law (jus cogens),” which was mentioned in the Special Rapporteur’s report, is not completed and could not, therefore, be taken as a precedent.

• Regarding the relationship between immunity in national and international criminal tribunals, Iran believed that the fact that a person can be prosecuted by an international tribunal cannot affect the immunity of the same person before the Forums of any foreign State. This emanates from the stark difference between the origins of immunity. The latter emanates from the principle of sovereign equality of States, while the first derives from the consent of States to the jurisdiction of the international tribunal. Iran also expressed its doubt whether Draft Article 18 can be applied to the States which are not parties to the statute of International Criminal Tribunals, particularly the Rome Statute of International Criminal Court.

• Iran again expressed its dissent in paragraph 4 of Draft Article 11 regarding the procedural requirements of the waiver of immunity. Iran is of the view that “the waiver of immunity as a procedural rule is the exclusive right of sovereign States which shall be declared by the State concerned in a manner that manifests the will of that State to waive the immunity of its official. Therefore, the state of the concerned official has an exclusive authority to invoke and waive the immunity of its officials, and the waiver should be not only clear and expressed but also should mention the official whose immunity is being waived.”

Sea-Level Rise in Relation to International Law

• Iran is of the view that there is a lack of State practice regarding the topic on sea-level rise in relation to international law. Hence, Iran suggested that the commission be cautious about its studies, particularly on the protection of persons affected by sea-level rise in the coming year.

• Iran agreed with the approach of the studies that maritime zones designated by States cannot be assimilated into established territorial boundaries. The coastal States, by determination of their maritime zones, entertain their sovereign rights which are granted through customary international law. Inevitably, sea-level rise might lead to changes in baselines and, consequently, outer limits of maritime zones. Nonetheless, we are of the view that any change in lines shall be based on principles of equity and fairness.

• Iran admitted that the practice of land reclamation, coastal fortification and other means to maintain coastal areas, base points, baselines and islands could be considered as an appropriate response to sea-level rise. However, such fortifications will not result in the creation of any new rights for the States. In addition, as also confirmed in several paragraphs of the issue paper, in case of land loss, maritime entitlements may be reduced or completely dissipated. As such, Iran was of the view that in line with paragraph 8, Article 60 of the 1982 Convention on the Law of the Sea, “artificial islands, installations and structures do not possess the status of islands” and any discussion about the relationship between artificial islands and the change of maritime zones in relation to sea level rise is irrelevant.

General Principles of Law

• The Islamic Republic of Iran commended the studies of the Commission on the sources of international law as set forth in Article 38 of the International Court Justice Statute (ICJ Statute).

• Regarding the general principles of law, Iran concurred with the formulation proposed in draft conclusions 4, 5, and 6. This formulation can help the commission to identify the general principles of law in accordance with Article 38(1)(c) of the ICJ Statute.

• With regard to the element of “legal systems” in the concept of general principles of law, Iran agreed with the Special Rapporteur’s view that Article 38 (1) (c) of the ICJ Statute should be read as general principles of law which have been recognized by States. However, Iran was of the view that an inclusive process for the identification and recognition of general principles of law is crucial to provide the contribution of all legal systems in a balanced manner. Taking into account this consideration, Iran did not concur with the reasoning expressed by the Special Rapporteur in paragraph 110 of his report regarding the irrelevance of opinio juris in the emergence of a general principle of law that might reduce the universality of the general principles of law.

• Against this backdrop, Iran expressed its concern over the draft conclusion 3(b). Therefore, the Commission should be cautious on draft conclusion 7. It is also important to mention that the travaux préparatoires of the ICJ Statute signifies that the general principles of law are limited to the principles of law which stem from the legal experiences of different national legal systems.

• Iran stated that such principles or rules serve as category of general principles of law as embodied in Article 38 (l)(c) of the ICJ Statute. Moreover, principles formed within international law generally come to existence through the process of the development of customary international law. In this regard, it should be underlined that the declaration on principles of international law concerning friendly relations and cooperation among States in accordance with the Charter of the United Nations was adopted by the General Assembly on 24 October 1970, and has already provided States with the general principles formed within the international law.

• Regarding draft conclusions 8 and 9, Iran agreed with the importance of the decisions of the courts and tribunals and teachings of the most highly qualified publicists as subsidiary means for the determination of rules of international law. Means of such nature reflect the general practice and the opinio juris of States.

• Finally, Iran stressed that the result of this study should not lead to producing a specific list containing the general principles of law since the purpose of the topic is not to increase the quantity of the rules and principles of international law.

Seyed Hossein Sadat Meidani

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America)

Judgment on Preliminary Objections, 3 February 2021

On 3 February 2021, the ICJ delivered its judgment on the preliminary objections raised by the United States.

On 16 July 2018, Iran filed before the ICJ an Application against the United States regarding alleged violations of the Treaty of Amity, Commerce and Consular Rights of 1955 concluded between the US and Iran. In this case, the Court’s jurisdiction was based on the compromissory clause contained in Article XXI(2) of the Treaty of Amity. The United States raised a number of preliminary objections.

Iran had claimed that the sanctions adopted by the United States against the former were contrary to various provisions of the Treaty of Amity. Therefore, the United States, according to Iran, must have ended the sanctions and stopped threatening to adopt other sanctions. In addition, Iran claimed that the United States must have paid Iran a sum in compensation for the damage caused. Contrariwise, the United States asked the Court to dismiss Iran’s claims, because the Court did not have jurisdiction and/or the claims were not admissible.

At the date of filing of the Application, the Treaty of Amity was still in force. Subsequently, however, on 3 October 2018, the United States withdrew from it. The conclusion of the Joint Comprehensive Plan of Action (‘JCPOA’ other known as ‘Iran Nuclear Deal’) in 2015, which was endorsed by the Security Council through Resolution 2231 of 2015, resulted in a partial lifting of the sanctions of the United States and of all the EU sanctions stemming from Security Council decisions. In 2018, the United States terminated its participation in the JCPOA.

As to the rarione materiae jurisdiction of the Court under Article XXI of the Treaty of Amity, the United States contested that the dispute fell within the material scope of Article XXI(2) of the Treaty of Amity. For the United States, the real subject-matter of the dispute concerned the JCPOA and not the Treaty of Amity. Further, it claimed that the measures challenged by Iran related primarily to trade and transactions between Iran and third parties, not between Iran and the United States. (Paras. 39–41)

The first preliminary objection was as to whether the subject-matter of the dispute was the JCPOA or the Treaty of Amity. While Iran had formulated its claims under the Treaty of Amity, the United States disputed that its measures were contrary to it. Instead, according to the United States, ‘by its Application, Iran, in fact, seeks the restoration of the sanctions relief provided by the United States when it was a participant in the JCPOA. The dispute thus exclusively pertains to the United States’ decisions relating to the JCPOA.’ (Para. 42) On the contrary, Iran argued that the subject-matter of the dispute that it had submitted to the Court was indeed the interpretation and application of the Treaty of Amity and that the dispute thus fell squarely within the scope of the Treaty of Amity’s compromissory clause. In this respect, the ICJ determined that it was true that the dispute had arisen in a particular political context – i.e., that of the United States’ decision to withdraw from the JCPOA – but this fact ‘does not in itself preclude the dispute from relating to the interpretation or application of the Treaty of Amity.’ (Para. 56) Therefore, the Court rejected the first preliminary objection to jurisdiction raised by the United States.

The second preliminary objection concerned the so-called ‘third country measures.’ This objection affected some, but not all, United States measures. The United States claimed that the vast majority of Iran’s claims related to measures that ‘principally concern trade or transactions between Iran and third countries, or between their nationals and companies.’ (Para. 61) According to the United States, ‘the Treaty of Amity is applicable only to trade between the two States parties, or their nationals and companies, and not to trade between one of them and a third country, or their nationals and companies.’ (Ibid) On the other side, challenging the concept of ‘third country measures’ underlying the United States’ second preliminary objection, Iran argued that this concept is misleading, ‘since in reality all the United States’ measures at issue, in this case, are specifically targeted at Iran and Iranian nationals and companies, not at third States or their nationals and companies.’ (Para. 70) For the Court, deciding on the scope of the Treaty of Amity required consideration of each provision, which meant that this second objection could not be upheld at this stage, because it brought into play elements of fact and law ‘which are properly a matter for the merits.’ (Para. 82) In addition, the Court observed that the ‘third country measures’ objection did not concern all, but only the majority of, Iran’s claims. It followed that ‘even if the Court were to uphold the second objection to jurisdiction – and assuming that it does not accept any of the other preliminary objections, each of which concerns all of Iran’s claims – the proceedings would not be terminated.’ (Para. 77) Therefore, the Court dismissed the second objection of the United States as a preliminary one.

Against this background, the Court concluded that it had jurisdiction ratione materiae to entertain Iran’s Application based on Article XXI(2) of the Treaty of Amity.

As to the admissibility of Iran’s Application, the United States raised arguments of ‘abuse of process’ and ‘judicial propriety’ (opportunité judiciaire). Thus, the United States contended that through these proceedings, Iran was seeking to obtain an ‘illegitimate advantage’ in respect of its nuclear activities and aimed to bring ‘political and psychological pressure on the United States.’ (Para. 87) Iran, on the other hand, argued that it was normal that a dispute brought under a treaty had political implications. Responding to the United States’ contention that Iran would obtain an ‘illegitimate advantage’ if the Court were to pronounce in its favour, Iran recalled that in other cases, the Court had already considered similar contentions and concluded that the relevant circumstances did not constitute an abuse of process. Iran, moreover, argued that asserting its rights under a treaty could not be illegitimate. In this regard, the Court specified that only ‘exceptional circumstances’ can establish an abuse of process, and here, there was no illegitimate advantage for Iran. In fact, the Court’s findings would simply be based on treaty provisions falling within its jurisdiction. Nor are there any exceptional circumstances. Furthermore, the ICJ determined that the political motives for the Applicant’s action are beyond the jurisdiction of the Court: ‘the fact that Iran only challenged the consistency with the Treaty of Amity of the measures that had been lifted in conjunction with the JCPOA and then reinstated in May 2018, without discussing other measures affecting Iran and its nationals or companies, may reflect a policy decision. However, … the Court’s judgment “cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.”’ (Para. 95) This admissibility objection of the United States was therefore rejected by the Court.

Finally, the United States submitted objections on the basis of Article XX(1)(b) and (d) of the Treaty of Amity – substantial exceptions granted in the Treaty of Amity with respect to ‘fissionable materials’ and ‘essential security interests.’ Article XX(1)(b) and (d) of the Treaty of Amity reads as follows:

1. The present Treaty shall not preclude the application of measures:

…

(b) relating to fissionable materials, the radio-active by-products thereof, or the sources thereof;

…

(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

According to the United States, these questions could be dealt with at the preliminary stage, since they had ‘exclusively preliminary character.’ Moreover, according to the United States, these objections came under a third category of objections under Article 79 (now Article 79bis) of the Rules of Court, linked neither to jurisdiction nor to admissibility. However, according to the Court, these substantial exceptions, contained in the Treaty of Amity, did not restrict its jurisdiction but were part of a defence on the merits. In other words, these are not preliminary questions but questions on the merits. Therefore, the Court rejected the preliminary objections raised by the United States based on these provisions.

In light of the above, the Court unanimously rejected most of the preliminary objections of the United States, and fifteen votes to one (with the single dissent of the United States ad hoc Judge, Charles Brower) rejected the rest. Judge Tomka appended a Declaration, and ad hoc Judge Brower appended a Separate (partly concurring, partly dissenting) opinion to the Judgment.

Order for Fixing Time-Limit: Counter-Memorial of the United States, 3 February 2021

By its Order of 3 February 2021, founding that it had jurisdiction to entertain Iran’s Application, and that the Application was admissible, the Court fixed 20 September 2021 as the time-limit for the filing of the Counter-Memorial of the United States.

Order for Extension of Time-Limit: Counter-Memorial of the United States, 21 July 2021

By its Order of 21 July 2021, taking into account the views of the Parties, the Court extended to 22 November 2021 the time-limit for the filing of the Counter-Memorial of the United States.

Certain Iranian Assets (Islamic Republic of Iran v. United States of America)

• Rejoinder of the United States of America, 17 May 2021

On 17 May 2021, in response to the Reply of Iran dated 17 August 2020, the United States submitted its Rejoinder.

Vahid Rezadoost

Crescent v. National Iranian Oil Company, Partial Award on Merits, PCA Case No. 2009–20, 27 September 2021

In this case, the Claimants are Crescent Petroleum Company International Limited (“Crescent Petroleum”), a company incorporated under the laws of Bermuda, and Crescent Gas Corporation Limited (“Crescent Gas”), a company incorporated under the laws of the British Virgin Islands. Crescent Gas is Crescent Petroleum’s wholly-owned subsidiary. These two are collectively referred to as “Crescent” or “Claimants.” The Respondent is the National Iranian Oil Company (“NIOC”), a state-owned oil company owned by Iran, through its Ministry of Petroleum.

The dispute between the Parties arose under a Gas Sales and Purchase Contract concluded by NIOC and Crescent Petroleum in 2001, as amended (“GSPC” or “Contract”) several times throughout 2001 and 2004. Under the GSPC, NIOC agreed to supply and sell to Crescent Petroleum, and in turn, Crescent Petroleum agreed to purchase from NIOC, specified quantities of natural gas, at the price and on the terms and conditions there provided, for a period of 25 years, commencing on 1 December 2005 (“Commencement Date”). Crescent claimed that, in breach of the GSPC, NIOC failed to deliver gas on 1 December 2005 or at any time thereafter up until 11 September 2018, on which date Crescent allegedly terminated the GSPC. On 26 July 2003, pursuant to Article 16 of the GSPC, Crescent Petroleum assigned its rights and obligations under the GSPC to Crescent Gas before the first delivery of gas was due.

As for the arbitration agreement, Article 22 of the GSPC provides:

22.1 Governing Law

This Contract shall be governed by and interpreted in accordance with the Laws of Islamic Republic of Iran.

22.2 Arbitration

The Parties shall use all reasonable efforts to settle amicably within 60 days, through negotiations, any dispute arising out of or in connection with this Contract or the breach, termination or invalidity thereof. Any dispute, controversy or claim arising out of or in relation to this Contract, or the breach, termination or validity or invalidity thereof shall be finally settled by arbitration before three arbitrators, in accordance with a “Procedures for Arbitration” (attached hereto as Annex 2) which will survive the termination or suspension of this Contract. Any award of the arbitrators shall be final and binding upon the Parties. Either Party may seek execution of the award in any court having jurisdiction over the Party against whom execution is sought.

The Award was rendered by an ad hoc arbitral tribunal (the “Tribunal”) seated in London, United Kingdom. In the light of the Award on Jurisdiction and Liability of 31 July 2014, the Tribunal determined that:

1. NIOC is liable to pay damages to Crescent Gas for NIOC’s breaches of the Gas Sales and Purchase Contract of 25 April 2001 (“GSPC”) up to 31 July 2014.

2. NIOC pay to Crescent Gas, within three (3) months of the date of this Partial Award.

3. NIOC pay to Crescent Gas post-award interest on the amount referred to in B. at the rate of 12 month EIBOR + 1 percentage point, compounding annually, commencing from three (3) months from the date of this Partial Award until date of payment.

4. The Claimants’ claim for pre-award interest is dismissed.

5. • The Claimants’ claim for declarations of indemnity in respect of liability to end-users and to CNGC in respect of its liability to end-users and service providers is deferred for further consideration.

   • The Parties may apply for directions in respect of the matter referred to in E. (1) within three (3) months of the date of this Partial Award.

6. • The Tribunal reserves for subsequent determination all questions concerning costs fees and expenses, including the Parties’ costs of legal representation.

   • The Claimants are directed to file, within eight (8) weeks of the date of this Partial Award, any submissions they wish to make on the matters referred to in F.(l) except as to quantum.

   • The Respondent is directed to file, within a further eight (8) weeks, any submissions it wishes to make on the matters referred to in F.(l) except as to quantum.

7. The Tribunal reserves jurisdiction in respect of the matters referred to in E. and F. above.

8. The Respondent’s claims for relief, save insofar as they relate to the matter of declarations of indemnity and questions of costs, are dismissed.

It is worth mentioning that this Award was originally confidential, but subsequently it became public: A duly certified copy of the Award was attached as an exhibit (Exhibit A) to a Declaration in Crescent Petroleum and Crescent Gas (Petitioners) v. NIOC (Respondent), United States District Court, District of Columbia, 16 May 2022 for the enforcement of the Award in the United States under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”).

Vahid Rezadoost

Judgment of the Court (Grand Chamber), C-124/20, Bank Melli Iran v Telekom Deutschland GmbH, Request for a Preliminary Ruling from the Hanseatisches Oberlandesgericht Hamburg, 21 December 2021

On 21 December 2021, the Court of Justice of the European Union (“CJEU”) ruled for the first time on the interpretation of the Regulation (EC) No. 2271/96 (the “Blocking Regulation”). The EU Blocking Regulation prohibits EU persons and companies from complying with specific sanction programs listed in its Annex unless an authorization to be exempt from that prohibition has been obtained. As enacted in 1996, the Annex to the Blocking Regulation contained certain pieces of US legislation concerning sanctions against Cuba, Libya and Iran, namely the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (the “Helms – Burton Act”) and the Iran and Libya Sanctions Act of 1996 (the “D’Amato Act”). Following the US’s departure from the Joint Comprehensive Plan of Action (“JCPOA”) on 8 May 2018, the US declared its intention to reintroduce nuclear-related economic sanctions on Iran.

On 6 June 2018, the European Commission adopted the Commission Delegated Regulation (EU) 2018/1100 (the “Delegated Regulation”), amending the Blocking Regulation with effect from 7 August 2018. Through this amendment, the Annex to the Blocking Regulation was updated to include the Iran Freedom and Counter-Proliferation Act of 2012, the National Defense Authorization Act for Fiscal Year 2012, the Iran Threat Reduction and Syria Human Rights Act of 2012 and the Iranian Transactions and Sanctions Regulations (ITSR) (31 CFR Part 560).

A key provision of the Blocking Regulation is Article 5, which expressly prohibits persons covered by the Blocking Regulation under Article 11 (“Covered Persons”) from complying with any requirement or prohibition based on the foreign laws specified in the Annex. This mechanism is in particular relevant for US secondary sanctions, which are retaliatory measures against persons with no jurisdictional nexus to the US insofar as they conduct transactions with certain entities and individuals listed by the US.

The request for a preliminary ruling in this case arose from a main proceeding between the German branch of the Bank Melli Iran (an Iranian bank owned by the Iranian state) and Telekom Deutschland GmbH (a subsidiary of Deutsche Telekom AG). Based on a framework contract, Telekom GmbH provided Bank Melli with several telecommunications services, which were essential to the internal and external communication of the bank in Germany. Following the reintroduction of nuclear-related economic sanctions by the US against Iran, a prohibition was introduced by the US which extended to non-US persons trading, outside the territory of the United States, with any person or entity included in the Specially Designated Nationals and Blocked Persons List (“the SDN list”). Bank Melli was listed on the SDN list. On 16 November 2018, Telekom notified Bank Melli of the termination of all of the contracts between them, with immediate effect. The termination notice did not provide any express reasons and did not include any authorization from the European Commission.

Bank Melli challenged the termination of the contracts before the Landgericht Hamburg (Regional Court, Hamburg). The court held that the ordinary termination by Telekom of the contracts was effective. Bank Melli appealed against the judgment before the Hanseatic Higher Regional Court (“the referring court”) arguing that the notice of ordinary termination was in breach of Article 5(1) of the Blocking Regulation and therefore ineffective. In response, Telekom submitted that Article 5(1) does not deprive a party of its commercial freedom to lawfully terminate a contract. The referring court stayed the proceedings and asked the CJEU four questions on the interpretation of Article 5(1) of the Blocking Regulation. On 12 May 2021, Advocate General Gerard Hogan delivered his Opinion in the case. The Advocate General Opinions provide influential, albeit non-binding, guidance to the CJEU on making its judgments. On 21 December 2021, the CJEU gave preliminary rulings to all four questions referred to it:

Question 1: Does the first paragraph of Article 5 of Regulation No. 2271/96 only apply where the United States issues an administrative or judicial order directly or indirectly against an EU economic operator, within the meaning of Article 11 of that regulation, or does it suffice for that article to apply that the action of the EU economic operator seeks to comply with secondary sanctions, even in the absence of such an order?

Relying on the wording of Article 5(1) and the objectives of the Blocking Regulation, the CJEU concluded that the prohibition in the said Article applies to Covered Persons even in the absence of an order directing compliance issued by the administrative or judicial authorities of the state imposing secondary sanctions.

Question 2: If the answer to the first question is that the second alternative applies, does the first paragraph of Article 5 of Regulation No. 2271/96 preclude the interpretation of national law as meaning that the party giving notice of termination may terminate any continuing obligation with a contracting party included in [the SDN list] held by the US Office of Foreign Assets Control, and thus announce a termination owing to wishing to comply with sanctions [imposed by the United States …] – without having to show and prove in civil proceedings that the reason for termination was not in any event a wish to comply with those sanctions?

While acknowledging that the party claiming the nullity of a legal act due to an infringement bears the burden of proving the infringement, the CJEU noted that the application of such a general rule relating to the burden of proof can undermine the effectiveness of the prohibition contained in Article 5(1). Evidence showing that a termination has been motivated by an intention to comply with secondary sanctions is typically not available. Therefore, in an attempt to strike a balance between the effectiveness of the Blocking Regulation and the EU operators’ contractual freedom, the CJEU concluded that where all the evidence in civil proceedings before a national court “tends to indicate prima facie” that a party terminated the contract in order to comply with the relevant secondary sanctions, the burden of proof shifts to that party to prove otherwise.

Question 3: If the second question is answered in the affirmative, must ordinary termination in breach of the first paragraph of Article 5 of Regulation No. 2271/96 necessarily be regarded as ineffective or can the purpose of the regulation be satisfied through other penalties, such as a fine?

Question 4: If the answer to the third question is that the first alternative applies, having regard to Articles 16 and 52 of [the Charter], on the one hand, and the possibility of granting an exemption under the second paragraph of Article 5 of Regulation No. 2271/96, on the other, does that apply even where maintaining the business relationship with the listed contracting party would expose the EU operator to considerable economic losses on the US market (in this case: 50% of group turnover)?

The CJEU examined the third and fourth questions together. It first noted that the provisions of EU law must be interpreted in the light of fundamental rights enshrined in the EU Charter. Recognizing the freedom to conduct a business as a right guaranteed in Article 16 of the Charter, the court clarified that this right is not an “absolute prerogative.” It concluded that national courts should in principle have the power to annul a contractual termination, which has been in breach of the prohibition laid down in Article 5(1) of the Blocking Regulation. Nevertheless, national courts are required to carry out a proportionality assessment before annulling a contractual termination. Therefore, it is for the referring court to determine whether annulling the contractual termination would be justified in light of balancing the proportionality on the freedom to conduct business for Telekom with the objectives of the EU Blocking Regulation as well as the possible disproportionate effects of the annulment on Telekom.

Hosna Sheikhattar

The Impact of US Judicial Decisions against the Iranian Entities’ Assets in Luxembourg, Judgment No. 2021TALCH02/00649 of 30 April 2021, the District Court of Luxembourg

Following a number of US regulations, in particular, US law S.1790 titled the “National Defense Authorization Act for Fiscal Year 2020” of 20 December 2019, the US courts ordered the transfer of certain Iranian entity assets to the US, including those of the Central Bank of the Islamic Republic of Iran. In this context, the Central Bank requested the Luxembourg Court to rule that the respondent cannot give effect to any order, judgment, or decision issued by an American court on the territory of Luxembourg.

According to the Central Bank, the requested judicial declaration would be useful in establishing that if the respondent complies with US law and its judicial decisions, then it would violate, inter alia, the public order of Luxembourg in terms of the immunity from jurisdiction and execution; and, the pre-eminence of Luxembourg Courts on the enforcement of foreign decisions. The respondent contended that under Luxembourg law, banks are not required to obtain an exequatur in order to transfer assets for the execution of a foreign judgment unless a coercive action by Luxembourgish police officers is needed for such an execution. The respondent further maintained that failing to comply with US decisions would lead to civil and criminal sanctions against it, including the possible seizure of assets it holds in the US on behalf of its clients.

The District Court of Luxembourg first found that, according to national laws, the exequatur is needed for acts of execution on property or coercion on people. The Court continued that the respondent’s analysis of the effect of American enforcement decisions on assets held in Luxembourg is incorrect. According to the Court, the means of coercion of foreign jurisdictions cannot replace the jurisdiction of Luxembourg courts. Addressing the respondent’s claim that it would face punishment in the US for disobeying the US court’s decisions, the Luxembourg Courts held that such sanctions do not currently exist and that it is also not excluded, that the US court take into account this Luxembourg’s decision and refrain from sanctioning the respondent in the future.

The Court concluded that the respondent would not be able to comply with any order, judgment or decision made, based directly or indirectly on US law S.1790 titled the “National Defense Authorization Act for Fiscal Year 2020” of 20 December 2019, or other relevant laws. Therefore, it cannot proceed with the transfer of the assets held in its account in Luxembourg prior to any exequatur decision by the Grand Duchy of Luxembourg. The Court also imposed a penalty payment of EUR 10,000,000 on the respondent for each act that contravenes the ban imposed on it.

Nasim Zargarinejad

Amendment of Forest Tree Cutting Fees, 15 March, 2021

The Board of Ministers amended the subject of Article (15) of the Law on the Protection and Exploitation of Forests, Rangelands – approved in 1967 – and its subsequent amendments according to the table attached to the resolution. Due to the significant increase in inflation, the amounts of taxes, including firewood, have been increased and modified.

Protocol on the Protection of Biodiversity, Annexed to FCPMECS, 17 October 2021

Protocol on the Protection of Biodiversity, annexed to the Framework Convention for the Protection of the Marine Environment of the Caspian Sea (FCPMECS), was finally approved by the parliament of Iran on 17 October 2021. The Caspian Sea is a unique ecosystem and includes a large number of habitats and species of great national, regional and global importance that need support, protection and restoration, and the need to ensure sustainable and rational use. In this regard, the countries of the Caspian Sea, including Iran, have many commitments in this field. Contracting parties based on their national laws and taking into account Article 9, paragraphs 1 and 2, Article 11, and Article 30 of this additional document and individually or jointly take all appropriate measures to support, protect and restore the marine environment of the Caspian Sea; use the natural reserves of the Caspian Sea in a way that does not cause any damage to the marine environment and biological resources.

Organizing Tourism in the Forests of the North and Northwest of the Country, 31 October 2021

This plan was adopted by the Iranian Board of Ministers, with the priority of developing Makran beaches. The most important goals of this plan include the following:

1. Adoption of integrated management of tourism at trans-departmental and inter-departmental levels.

2. Modifying the structure of laws and regulations in order to facilitate the processes of beach and forest tourism development.

3. Coordination between executive bodies and public and private sector stakeholders.

4. Informing and creating a culture in the field of sustainable tourism development.

Approval of Regulations for Coordination, Prevention and Management of Dust Phenomenon, 30 May 2021

According to the proposal of the Environmental Protection Organization and based on Article 148 of the Constitution, the Board of Ministers approved the rules for dealing with dust storms. Based on these regulations, the National Dust Council was established. This Council aims to make policies, determine strategies, synergize and coordinate between the executive bodies to carry out the necessary measures at the national and regional level, as well as monitor the executive actions of the bodies in order to reduce the effects and consequences of the dust phenomenon.

Ali Mashhadi

Directives of the Head of the Judiciary Regarding the Manner of Publishing Court Judgments and Holding Open Courts, 18 May 2021

Iranian laws and regulations, including the Iranian Constitution, the Criminal Procedure Code of Iran (“CPC”), and a by-law issued by the head of the Judiciary on 18 May 2021 (“by-law”) recognize the right to an open hearing. To provide a brief overview of this indispensable part of the right to a fair trial in Iran’s legal system, three questions need to be addressed. First of all, what does open or public hearing mean? The second question is, what is the legal basis for this? Thirdly, to what extent does Iran’s legal system follow such a rule?

The note to Article 352 of the CPC defines a public hearing as one in which the public can attend judicial proceedings without being hindered. When a court is open, people who do not even have a role in the case, such as journalists, can attend. In this regard, according to Article 7 of the by-law, a trial is public “when there are no obstacles to the presence of real persons or journalists and members of the media, considering the capacity of the court.”

Under certain exceptions, Principle 165 of the Iranian Constitution recognizes the general and fundamental rule on open hearings in Iranian courts. This principle provides that: “Trials are to be held openly and members of the public may attend without any restriction unless the court determines that an open trial would be detrimental to public morality or order, or if in cases of private disputes, the parties to the dispute request that the trial is held in a closed session.”

According to Article 352 of CPC, court hearings are public unless one party requests a closed hearing in cases of “forgivable crimes.” In addition, in case of certain family disputes and crimes against decency, and where an open hearing would disturb public safety or religious or ethnic sentiments, the court may issue an order for a closed hearing.

Under Article 6 of the by-law, trials in courts are conducted in public, except in the cases listed in Article 352 of the CPC, where the court orders the trial to be held in closed sessions.

In conclusion, open or public hearings are accepted as a general rule in Iran’s legal system, and the circumstances in which a court can rule against it is specified in Article 352 of the CPC. Accordingly, trials by default are open to the public, and closed trials are subject to the decision of the court which is taken under the circumstances specified in this article.

It should be noted that the vague and broadly defined circumstances under which the right to an open hearing is to be applied and judges’ wide interpretive powers may affect the sound and full application of such a rule and enjoyment of this right.

Khalil Rouzegari Agbalag

Ms. X versus Civil Registration Office (Case No. 140047390001538016), Appeal Court of Mazandaran Province, 20 May 2021

Article 976 of the Civil Code of Iran addresses the issue of nationality and specifies the persons who are considered nationals of Iran. One of the most challenging situations in which the issue of nationality is raised is when a child is born to an Iranian mother and a non-Iranian father or a father with unknown nationality. Iranian civil law is silent in this regard, and this has caused problems for children under these circumstances. In the following case, it can be seen that judges of the Mazandaran Court of Appeal tried to prevent statelessness by referring to domestic laws and international legal instruments. In order to protect the identity of the disputing parties, the names will not be mentioned.

In this case, Ms. X, after the birth of her child, referred to the Civil Registry Office of the city of Tonekabon to announce the birth and to request the issuance of a birth certificate. However, due to the fact that the child’s father did not have Iranian nationality, the Civil Registry Office refused to issue a birth certificate for the child. Following this, the issue was raised before the Court of First Instance of Tonekabon, and at the first stage, the Court ruled that the Civil Registry Office was required to issue a birth certificate. After the issuance of this judgment, the Civil Registry Office objected to the judgment, and, accordingly, the matter was reviewed by the Mazandaran Court of Appeal.

The judges of the Court of Appeal firstly stated that based on Article 1(a) of the Civil Registration Law enacted in 1976 (amended in 1985), one of the duties of the Civil Registration Office is to register births and issue birth certificates. On the other hand, according to Article 16(1) and (2) of the same Law, this is the responsibility of the father or mother to announce the birth; in the case at hand, after the birth, the child’s mother went to the Registry Office to obtain a birth certificate. In addition to the above arguments, the Court of Appeal also cited Article 41 of the Iranian Constitution, according to which: “Nationality of Iran is an inalienable right of every Iranian.”

After stating the above-mentioned provisions of the Iranian domestic laws, the Court of Appeal tried to protect the “right to nationality” by relying on international instruments, including treaties. For this purpose, the Court referred to Article 15 of the Universal Declaration of Human Rights of 1948, Article 24(2) and (3) of the International Covenant on Civil and Political Rights of 1966 of the United Nations General Assembly, and Article 7(1) of the Convention on the Rights of the Child of 1989, and Article 5(3)(d) of the Convention on the Elimination of Racial Discrimination of 1965. Accordingly, from these provisions, the Court of Appeal concluded that every person has the right to have a nationality. In addition, it observed that in its General Comment No. 17 of 1990, the UN Human Rights Committee emphasized the immediate action of the registration of birth and nationality and that the government has no right to deprive individuals of the right to nationality in any way.

Finally, in order to prevent the child from becoming stateless and to prevent the violation of the rights enumerated in the three generations of human rights, especially the right to education of the child, the judges upheld the decision of the Court of First Instance and recognized the obligation of the Civil Registry Office to issue a birth certificate for the child.

Mona Karbalaye Amini

Letters in Reaction to Sabotage Attack against Natanz Fuel Enrichment Plant

Following an interview with the New York Times given by the former Prime Minister of Israel (https://www.nytimes.com/2021/08/24/world/middleeast/israel-bennett-biden-iran.html), Iran submitted a letter to the UNSC stating that: “in his recent interview, the Israeli regime’s Prime Minister has confessed, though implicitly, to Israel’s covert attacks on Iran’s peaceful nuclear programme and brazenly stated that the regime will continue such attacks.” (S/2021/758, 27 August 2021) Iran called this kind of threats as a gross violation of international law and Article 2(4) of the UN Charter which “must not be tolerated by the international community and the Security Council.” (ibid) Having said that, Iran maintains that it “reserves its inherent right under international law to take all necessary measures to protect and defend its citizens, interests, installations and sovereignty against any terrorist or disruptive acts.” (ibid) This letter was sent to the UNSC as a follow-up to the letter Iran sent on 12 April, following an electricity disruption that took place in the Natanz Fuel Enrichment Plant (Shahid Ahmadi Roshan Plant). (A/75/852–S/2021/347, 13 April 2021) Regarding the electricity disruption, Iran called this “deliberate targeting of a highly sensitive safeguarded nuclear facility – with the high risk of potential release of radioactive material” as a war crime and also reckless criminal nuclear terrorism. While “recalling the long record of the Israeli regime in sabotage operations against our peaceful nuclear activities,” Iran stressed that it “reserves its right under international law to take all necessary measures to protect and defend its citizens, interests and installations against any terrorist or disruptive acts.” (ibid)

Moreover, following the continuous threats made by the Israeli authorities against Iran and its nuclear facilities, in several letters to the UNSC, Iran called these statements a “gross violation of Article 2 (4) of the Charter of the United Nations” and stated that: “we reserve our inherent right to self-defence to decisively respond to any threat or wrongful act perpetrated by the Israeli regime.” (see: e.g.: S/2021/72, 22 January 2021; S/2021/103, 2 February 2021; S/2021/706, 4 August 2021; S/2021/794, 14 September 2021; S/2021/872, 13 October 2021; S/2021/951, 15 November 2021; and S/2021/1059, 17 December 2021) (emphasis added)

Letters in Reaction to the US Acts and Statements

In the year 2021, Iran continued to complain to the UN Security Council about what it calls “the US military adventurism in the Persian Gulf and Oman Sea.” Following some military acts by the US in the region, including the flight of a number of the US long-range strategic bombers over the Persian Gulf, Iran wrote to the UNSC and maintained that: “such military adventurism is in clear contradiction with the purposes and principles of the United Nations and has serious ramifications for regional and international peace and security, the United Nations Security Council is expected to compel the United States to abide by the principles and rules of international law and stop these unlawful measures. Likewise, the international community should demand that the United States put an end to its destabilizing measures in such a volatile region as the Persian Gulf.” (S/2020/1326, 4 January 2021) In this letter, Iran has stated that: “[…] while the Islamic Republic of Iran does not seek conflict, our ability and resolute determination to protect our people and to defend our security, sovereignty, territorial integrity and vital interests, as well as to respond decisively to any threat or use of force against Iran, must not be underestimated.” (ibid)

The US, on several occasions in its letters to the UNSC (see: e.g. S/2021/202, 3 March 2021 and S/2021/614, 30 June 2021) reported that: “the United States, in the exercise of its inherent right of self-defense, as reflected in Article 51 of the Charter of the United Nations, has undertaken targeted strikes against facilities at two locations in Syria and one location in Iraq near the Iraq-Syria border” (S/2021/614), The US further stated: “[t]hese facilities were used by Iran-backed militia groups that have been involved in a series of unmanned aerial vehicle and rocket attacks against United States personnel and facilities in Iraq.” (ibid) (emphasis added)

In Response, Iran repeatedly denied its involvement “directly or indirectly, in any armed attack by any entity or individual against the United States in Iraq and, accordingly, firmly rejects any claim to attribute to Iran, explicitly or implicitly, any attack carried out against American forces in Iraq.” (S/2021/257, 15 March 2021; see also: S/2021/623, 6 July 2021) Furthermore, Iran declared that the US is presenting “an extremely arbitrary interpretation of Article 51 of the Charter of the United Nations” (S/2021/257). In the same vein, Iran has contended: “[t]he argument of the United States that such attacks were conducted to ‘deter’ the Islamic Republic of Iran and the so-called ‘Iran-backed militia groups’ from conducting or supporting further attacks on United States personnel or facilities has no factual or legal ground, as it is founded on mere fabrication as well as arbitrary interpretation of Article 51 of the Charter of the United Nations. The attacks by the United States are conducted in flagrant violation of international law, particularly Article 2 (4) of the Charter.” (S/2021/623)

Pouria Askari

Enlisting Certain American State Officials by Iran’s Ministry of Foreign Affairs, 19 January 2021

On 19 January 2021,Iran’s spokesperson of the Ministry of Foreign Affairs stated that the Ministry in implementing the Act “Countering Human Rights Violations, Adventurous, and Terrorist Actions of America in the Region,” adopted by the parliament of Iran, sanctioned a number of American individuals for committing terrorist crimes, which is a serious threat to regional and international peace and security, and because of the violation of fundamental rules and fundamental principles of international law, including human rights, was included in the sanctions list of the Islamic Republic of Iran. Some of these persons are former US President Donald Trump, former Secretary of Defense, State, Treasury and CIA.

These individuals have been sanctioned for reasons such as “issuing orders and leading the assassination operation of General Qasem Soleimani and his companions, organizing and supporting terrorist acts against the Islamic Republic of Iran, creating, financing, providing weapons and training to terrorist groups, all-round support for the repressions of the Zionist regime against the Palestinian people, especially the terrorist actions of this regime in the assassination of the scientist Mohsen Fakhrizadeh, the implementation of cruel, illegal and unilateral sanctions against the Islamic Republic of Iran and the Iranian people, and the deliberate action to impose special living conditions on Iranians, including, by preventing access to provide food, medicine, services and medical equipment, support for repressive regimes in the region and support for crimes against humanity and war crimes of the aforementioned regimes in Yemen, active and all-round communication with the terrorist group of the hypocrites and political, propaganda and cultural support for this group, which have committed numerous terrorist acts against the interests of the government and citizens of the Islamic Republic of Iran.”

The spokesperson of the Ministry of Foreign Affairs also expressed that according to international legal principles, the imposition of unilateral sanctions is a blatant violation of the fundamental principles of international law incorporated into the United Nations Charter and contrary to international rules, including international humanitarian law and human rights law. Based on this, Iran reserves its right to take the necessary measures to counter US international violations in all fields.

Abdollah Abedini