Relationship between International & Domestic Law
Implementation of Human Rights Treaties – Judicial Decision – The Custody of a Disabled Adult and the Convention on the Rights of Persons with Disabilities
Ms. R versus Mr. V. (Case No. 9809981527400283), Appeal Court of Mazandaran Province, 23 September 2020
Pursuant to Article 9 of the Iranian Civil Code, international treaties concluded among Iran and other States have the force of law in Iran. Despite this express legal provision, until very recently, Iranian judges were reluctant to rely on international treaties or instruments in their reasoning. However, in the past few years, Iranian judges have leaned toward relying on international treaties to solve civil and non-litigious disputes. In particular, they often rely on international human rights treaties or instruments alongside applicable domestic rules. The case reported below is one of those judgments wherein the judge used an international convention to decide a case. To protect the identity of the parties and the child in the case, the names of individuals have been redacted from the text of the decision.
Mr. V. sought the custody of his child, who was suffering from severe mental disability, autism, convulsions, and genetic eye disease from the court of first instance. The applicant claimed that the respondent (Ms. R., the child’s mother and guardian) has been convicted by the courts for committing several crimes. In addition, the applicant claimed that the respondent does not pay enough attention to the child’s hygiene. On the other hand, the respondent argued that the applicant has no proper house or salary for taking care of their child and added that the applicant himself also suffers from the same genetic eye disease that their child does. The Court of First Instance gave custody to the applicant based on the content of domestic rules, inter alia, Article 1069 of the Iranian Civil Code. The respondent sought an appeal of the judgment.
The Court of Appeal held that the Court of First Instance erred in law by applying Article 1069 of the Iranian Civil Code, since that rule is only applicable to minor children while the child in this case was 24 years old. Having found that the domestic rules are silent regarding the proper person for the custody of disabled adults, the Court of Appeal relied on various international rules to decide that the mother is more suitable for taking custody of the child. First, the Court of Appeal noted that the Convention on the Rights of Persons with Disabilities (‘CRPD’), which has the force of law in Iran according to Article 9 of the Iranian Civil Code, requires States to adopt all appropriate measures for implementing the rights recognized in the Convention, and obligates States to refrain from engaging in any act or practice that is inconsistent with that Convention. Hence, the Court of Appeal applied the Convention to decide the case. The Court of Appeal noted paragraph 10 of the preamble of the CRPD, which recognizes the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support. According to the Court of Appeal, the mother could provide better intensive support to her disabled female child. Moreover, the Court added that under General Comment No. 1 (2014) adopted by the Committee on the Rights of Persons with Disabilities, substitute decision-making regime that decides on disabled adults’ cases must pay special consideration to the best interests of the child. Taking all these considerations together, the Court of Appeal ruled that the best interests of the child will be better secured if the child lives with her mother because, first, her mother can better address the special female needs of her disabled child and second, the father also suffers from an eye disease that makes him an unsuitable person for the custody of the child.
Nasim Zargarinejad
International & Regional Organisations
Admission, Membership, and Participation in International Organisations
Iran’s Statement, UN General Assembly, 13 October 2020
Every member of international organizations and institutions including Iran enjoys the privileges of membership. The enjoyment of such privileges depends on the continuation of voting rights and membership, which in turn depends on payment of the relevant contribution to the organization, as non-payment would in many cases entail loss of voting rights and ultimately, suspension or termination of membership. The sanctions imposed against Iran in the last two decades have had an adverse effect on the payment of such contributions by Iran to international organizations in two different ways: first, by reducing the country’s revenue, and second, by creating obstacles to the payment of contributions via banking systems.
The most recent example of depriving a nation of the exercise of such rights is the US imposition of financial and banking sanctions against Iran, which were the main obstacle to transferring Iran’s financial resources to pay its dues to the UN. As a result, Iran lost its voting rights in the UN, as the Secretary-General had asked the president of the General Assembly to suspend the voting rights of 10 States in the UNGA under Article 19 of the UN Charter.
Iran was unable to pay its dues to the United Nations to enjoy its legitimate rights until recently, even though the UN-imposed sanctions against Iran were lifted in 2015 through United Nations Security Council Resolution 2231. It should be noted that South Korea paid Iran’s dues to the UN, using $18 million of frozen Iranian assets.
In fact, as Iran’s delegation to the General Assembly noted in this regard at its 75th session on 13 October 2020, unilateral coercive measures are a ‘virus that affected countries’ economies and required a common solution’ (A/C.5/75/SR.2, para. 13) that enables nations to enjoy their legitimate rights without facing unlawful unilateral coercive measures.
Khalil Rouzegari Agbalag
Individuals & Non-State Actors
Naturalization
Regulations on Naturalization of Children Born to Iranian Women Married to Foreign Men, 20 May 2020
Discrimination against maternal lineage in granting citizenship in the Iranian legal system had led to setbacks for children resulting from marriage between Iranian women and foreign men. To address this issue, an act was passed in 2006 to naturalize children born to Iranian women married to foreign men in Iran. The 2006 Act was not welcomed in practice due to very strict conditions and restrictions. Therefore, it was amended in 2019, and the executive regulations of this Act were approved in 2020.
According to paragraph 2 of Article 976 of the Iranian Civil Code, granting of Iranian citizenship is possible only through paternal descent. Iranian civil law does not provide a place for maternal descent in naturalization. With the approval of the 2006 Act, it was held that: ‘Children born to Iranian women married to foreign men born in Iran, or born in Iran up to one year after the adoption of this law, can apply for Iranian citizenship after reaching the age of eighteen.’ These individuals will be accepted as Iranian citizens if they do not have a criminal or security record and have rejected non-Iranian citizenship. The main difficulty with this Act was that the age for granting Iranian citizenship had been raised to the age of 18, while children needed Iranian citizenship from birth in order to enjoy legal residence, free education, and health services. As a result, the Act was amended in 2019 and its executive regulations were adopted a year later.
According to the 2019 Nationality Act: ‘Children of Iranian women religiously married to non-Iranian men, whether they were born or are born before or after the passage of this law, before reaching the age of eighteen, at the request of an Iranian mother if they do not have security problems […], become an Iranian citizen. The above-mentioned children can apply for Iranian citizenship after reaching the age of eighteen, provided that the Iranian mother did not apply. If they do not have a security problem, they will be accepted as Iranian citizens. The response to the security inquiry must be completed within a maximum of three months and the police are obliged to issue a residence permit to a non-Iranian father if he does not have a security problem.’
The 2019 Act along with 2020 Regulations grant Iranian nationality to the child of an Iranian woman subject to certain conditions. The first condition is that the marriage of the Iranian mother to a foreign father does not have to be a lawful marriage, and a sharia marriage will be sufficient. However, the Regulations require that the marriage must be legal and registered. The second condition is that the granting of Iranian citizenship is possible after the birth of the child, upon the request of the Iranian mother. The third condition is that there must not be a security problem to naturalization. The second and third requirements indicate that there is a possibility of the Iranian government opposing the mother’s request. As a result, the citizenship bestowed pursuant to this Act is an acquired citizenship, while citizenship is granted by birth to a child born to an Iranian father is an original citizenship. Lack of a clear definition of a security problem can also present many challenges in naturalization.
Despite the existing restrictions, this Act is a positive step in eliminating differences between maternal and paternal descent in granting citizenship. With the passage of this Act and its Regulations, many children born to Iranian women and foreign men, especially illegal immigrant men, can benefit from Iranian citizenship. Having Iranian citizenship, these children will benefit from the right of residence, free health care, and education under the Iranian legal system.
Mahin Sobhani
Settlement of Disputes
International and Regional Dispute Resolution Mechanisms – Iran-United States Claims Tribunal
Islamic Republic of Iran v. United States of America, Award No. 604-A15 (II:A)/A26 (IV)/B43-FT, 10 March 2020
To provide some background, Iran and the United States concluded the Algiers Accords in 1981, thereby constituting the Iran-United States Claims Tribunal (‘IUSCT’ or ‘Tribunal’) at The Hague, The Netherlands in order to resolve certain individual and governmental claims. The Tribunal is composed of nine members – three chosen by Iran, three chosen by the United States, and three so-called ‘third-country’ arbitrators.
On 10 March 2020, the IUSCT rendered Partial Award No. 604-A15 (II:A)/A26 (IV)/(B43-FT), ordering the United States to pay Iran over USD 29 million in damages, including decades of interest, and to return several tangible properties of a non-military nature that had been frozen by the United States following the seizure of the US Embassy in Tehran in 1979.
The Algiers Accords – the General Declaration in particular – set out obligations for the two disputing States, which, inter alia, consisted of the release of the US personnel by Iran and the return of the Iranian assets blocked in the United States.
On 25 October 1982, Iran submitted that the United States had failed to arrange for the transfer of all Iranian properties located in the United States to Iran as required by Paragraph 9 of the General Declaration. This provision requires the United States to ‘arrange, subject to the provisions of U.S. law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties which are located in the United States and abroad and which are not within the scope of the preceding paragraphs.’ (Emphasis added)
In this respect, Iran requested the Tribunal to clarify which assets were to be considered as ‘Iranian properties’ under Paragraph 9 of the General Declaration. As a result, Partial Award No. 529 was issued in 1992, wherein the Tribunal, inter alia, found that the obligation of the United States with respect to tangible properties was limited to properties that were owned by the government of Iran or its controlled entities. Moreover, the Tribunal held that United States regulations that ‘excluded from the transfer direction properties which were owned solely by Iran but as to which Iran’s right to possession was contested by the holders of such properties on the basis of any liens, defences, counterclaims, set-offs or similar reasons, were inconsistent with the obligations of the United States under the General Declaration.’ Consequently, the Tribunal concluded that the United States had the obligation to compensate Iran for those properties that had not been transferred. Most importantly, in this Award, the IUSCT deferred any determinations concerning specific properties and possible damages to the second phase of the proceedings, which resulted in Partial Award No. 604.
In Partial Award No. 604, the Tribunal found that Partial Award No. 529 had determined the meaning of the term ‘Iranian properties’ to be properties ‘solely owned by Iran.’ The Tribunal concluded that the standard for determining Iranian properties was ownership, and that title was the key criterion in determining whether specific properties were solely owned by Iran: ‘The Tribunal concludes that title to property is therefore the objective means by which to determine the question of ownership over the property claimed and to conclude whether the property falls within the scope of Paragraph 9.’ (Award No. 604, para. 131.) In order to identify the properties which Iran had title to, the Tribunal found that general public international law did not provide any applicable rules, and thus referred to the general principles of private international law to determine which national law should be applied to define title to the properties in question. Deciding that the most generally accepted principle is lex rei sitae – meaning the law of the place where the goods are located at the time of their transfer – the Tribunal decided to apply US law to define which properties were owned by Iran and had to be transferred under the General Declaration.
In other words, in determining which properties the United States had transferred to Iran, the Tribunal – having concluded that there are no public international law rules on property – grappled with identifying the law governing property rights in the framework of a treaty-based inter-state arbitration. Against this backdrop, the Tribunal applied international private law principles to identify the national law applicable to questions of ownership. Contrariwise, dissenting arbitrators were of the opinion that the underlying dispute was a matter of treaty interpretation and thus required a public international law analysis in light of the canons of interpretation under the Vienna Convention on the Law of Treaties.
Islamic Republic of Iran v. United States of America, Decision No. DEC 137-A15 (II:A)/A26 (IV)/B43-FT, Correction to Award and Decision on Request for Correction and Additional Award, 27 November 2020
Following the issuance of Award No. 604 on 10 March 2020, explained above, on 9 April 2020, the United States sought corrections to certain aspects of the Tribunal’s Award, as well as an additional award on a defence that the Tribunal had allegedly failed to address.
On 27 November 2020, the Tribunal issued its decision upon the request of the United States. The Tribunal accepted some of the corrections suggested by the United States, while denying others. The Tribunal’s decision resulted in a total reduction of less than USD 14,000 out of the roughly USD 29 million decided in Award No. 604.
The United States also requested an additional award to the Partial Award in connection with the defence raised by the United States concerning Article I of the Claims Settlement Declaration, which, allegedly was presented in the arbitral proceedings but omitted from the Partial Award. The Parties disagreed fundamentally about whether the scope of a request for an additional award under Article 37 (1) of the Tribunal Rules was limited to claims presented but omitted from the award, as Iran contended, or whether such a request may also concern an omitted defence, as the United States contended. Article 37 (1) of the Tribunal Rules provides:
Within thirty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.
According to the Tribunal, the text of the provision expressly limited the scope of a request for an additional award to omitted ‘claims.’ In the Tribunal’s view, it was doubtful that the term ‘claims’ in the provision may have been interpreted as also encompassing the term ‘defences’ or, relatedly, terms such as ‘arguments’ or ‘issues.’
Further, the Tribunal noted that it had considered all significant arguments raised by the Parties, whether explicitly mentioned in the Partial Award or not, including the United States’ defence. Consequently, the Tribunal dismissed the United States’ Request for Additional Award.
Vahid Rezadoost
International and Regional Dispute Resolution Mechanisms – International Court of Justice
Certain Iranian Assets (Islamic Republic of Iran v. United States of America)
On 14 June 2016, the Islamic Republic of Iran filed in the Registry of the International Court of Justice (‘Court’) an Application instituting proceedings against the United States of America with regard to a dispute concerning its alleged violations of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. On 1 July 2016, the Court fixed 1 February 2017 and 1 September 2017 for the filing of a Memorial by Iran and a Counter-Memorial by the United States, respectively. The Memorial of Iran was filed on 1 February 2017. On 1 May 2017, in accordance with Article 79 of the Rules, the United States presented preliminary objections to the admissibility of the Application and the jurisdiction of the Court. Consequently, by an Order of 2 May 2017, the President of the Court fixed 1 September 2017 as the time-limit within which Iran could present a written statement of its observations and submissions on the preliminary objections raised by the United States. Iran filed such a statement within the prescribed time-limit, moving the case forward for a hearing in respect of the preliminary objections. The relevant public hearings were held from 8 to 12 October 2018, at which the Court heard oral arguments and replies. The Court issued its judgment on preliminary jurisdiction on 13 February 2019. The Court, while accepting one of the objections of the United States, rejected the rest and as such decided that, subject to certain conditions, the Court has jurisdiction, and Iran’s Application is admissible. Subsequently, the Court, through an order dated 15 November 2019, set 17 August 2020 as the deadline for the filing of the Reply of the Islamic Republic of Iran and 17 May 2021 as the deadline for filing of the Rejoinder of the United States of America in this case. Iran filed its Reply in 2020. This reply is not yet public.
Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America)
On 16 July 2018, the Islamic Republic of Iran filed in the Registry of the Court an Application instituting proceedings against the United States of America with regard to alleged violations of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Upon the request of Iran, by an Order dated 3 October 2018, the Court indicated certain provisional measures. Subsequently, Iran filed its Memorial on 24 May 2019. On 23 August 2019, in accordance with Article 79, paragraph 1, of the Rules of Court, the United States raised certain preliminary objections and accordingly, the President of the Court decided that the proceedings on the merits would be suspended and requested that Iran present its written statement of its observations and submissions on the preliminary objections raised by the United States. Iran filed its written statement on 23 December 2019, and the relevant public hearings were held through video link from 14 to 21 September 2020, at which the Court heard the oral arguments and replies of the United States and Iran.
During the oral proceedings of the preliminary objections, the United States requested that the Court uphold its preliminary objections set forth in its written submission at this hearing and decline to entertain the case. Specifically, the United States requested that the Court: (a) dismiss Iran’s claims in their entirety as outside the Court’s jurisdiction; (b) dismiss Iran’s claims in their entirety as inadmissible; (c) dismiss Iran’s claims in their entirety as precluded by Article XX, paragraph 1 (b) of the Treaty of Amity; (d) dismiss Iran’s claims in their entirety as precluded by Article XX, paragraph 1 (d) of the Treaty of Amity; and (e) dismiss as outside the Court’s jurisdiction all claims, brought under any provision of the Treaty of Amity, that are predicated on third country measures. In response, Iran requested that the Court: (a) reject and dismiss the Preliminary Objections of the United States of America; and (b) adjudge and declare: (i) that the Court has jurisdiction over the entirety of the claims presented by Iran; and (ii) that Iran’s claims are admissible.
The Court issued its judgment on the preliminary objections on 3 February 2021 and: (1) unanimously rejected the preliminary objection to its jurisdiction raised by the United States according to which the subject-matter of the dispute does not relate to the interpretation or application of the Treaty of Amity, Economic Relations, and Consular Rights of 1955; (2) unanimously rejected the preliminary objection to its jurisdiction raised by the United States relating to measures concerning trade or transactions between the Islamic Republic of Iran (or Iranian nationals and companies) and third countries (or their nationals and companies); (3) by fifteen votes to one rejected the preliminary objection to the admissibility of the Application raised by the United States; (4) by fifteen votes to one (Judge ad hoc Brower) rejected the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (b), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955; (5) unanimously rejected the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (d), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955; and (6) by fifteen votes to one (Judge ad hoc Brower) found, consequently, that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, to entertain the Application filed by the Islamic Republic of Iran on 16 July 2018, and that the said Application is admissible.
Iran’s Observations on the Report of the International Court of Justice of 2020 (A/75/PV.20, 3 November 2020)
Mr. Takht Ravanchi, Iran’s Representative, in his statement on the report of the Court’s activities in 2020 (A/75/4) referred to the following points:
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The International Court of Justice has a pivotal role in the recognition and application of international law through its judicial work. The consensual basis of the Court’s jurisdiction is not a deficiency; rather, it is in fact the strength of the Court, which upholds the rule of law in the international legal order at the core of which is the sovereign equality of States as one of the fundamental principles of international law.
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Iran has always believed in the authority and integrity of the Court and considers it as an important means for the peaceful resolution of disputes between States.
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In response to wrongful acts, carried out in contravention of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, the Charter of the United Nations, and international law, the Islamic Republic of Iran instituted proceedings against the United States in the International Court of Justice on 16 July 2018. Regrettably, the United States has not only failed to comply with the Court’s order but, by imposing new rounds of sanctions, has also deliberately defied that order. In that context, in line with the Court’s order and Security Council resolution 2231 (2015), Member States are expected to stand against the United States’ lawless policy of intimidation and pressure. Any action to the contrary would amount to disregarding the Court’s order and be tantamount to providing assistance to the transgressor. As a result, the Islamic Republic of Iran brought such non-compliance to the Court’s attention in more than one case.
Seyed Hossein Sadat Meidani
International and Regional Dispute Resolution Mechanisms – Enforcement of Arbitral Awards and Economic Sanctions
Ministry of Defence and Support and Armed Forces of the Islamic Republic of Iran v. International Military Services Ltd., Court of Appeal of London [2020] EWCA Civ 145, 12 February 2020
Prior to the Iranian revolution of 1979, the Iranian Ministry of Defence and Support for Armed Forces entered into two contracts with International Military Services, Ltd., a corporation owned by the UK Ministry of Defence and HM Treasury. The subject of the contracts was the supply of Chieftain tanks and armoured recovery vehicles to the Iranian party. The value of the contracts amounted to GBP 650 million and the British supplier received an advance payment.
However, during the turmoil of the revolution, the contracts were terminated on 6 February 1979. By that time, only a few of the agreed upon number of tanks had been delivered, and the remainder of the supplier’s obligations remained outstanding. Thus, the parties were left in dispute as to the balances payable. The Iranian purchaser initiated an arbitration case against the British supplier before the International Chamber of Commerce in 1990, and the British supplier started an arbitration case against the Iranian purchaser in 1996. The ICC arbitration tribunal issued final awards in both arbitrations on 2 May 2001, concluding that the British defendant was a debtor and therefore liable to pay the Iranian claimant an amount exceeding GBP 100 million plus interest. The interest determined by the arbitral tribunal was at LIBOR rate plus 0.5% to be calculated from 28 July 1984 until the date of full payment.
On 30 July 2001, the Iranian party applied to the High Court of London to enforce the awards. On 31 July 2001, the High Court granted leave to enforcement, following the dismissal of the application to set aside the orders and the challenge to the awards in The Netherlands (the seat of arbitration) were determined. Therefore, the High Court decided to adjourn the enforcement proceedings pending the supplier’s challenge in The Netherlands and, more significantly, such adjournment was conditional on the British supplier paying the amount of the award plus the accruing interest into the Court Funds Office by way of security.
On 24 April 2009, the challenge procedure was finalized in The Netherlands when that nation’s Supreme Court upheld the Court of Appeal’s decision, which found that the arbitral awards were valid. However, the Dutch Court of Appeal had reduced a minor portion of the debt amount included in the arbitral award.
By then, the Iranian purchaser was designated a sanctioned entity under EU Council Regulation 423/2007 (replaced by Regulation 267/2012), taking effect from 24 June 2008. On this basis, the debtor took the position that the amount of the award and interest was not payable to the Iranian party. In a convoluted procedure before the High Court, the hearing was adjourned several times.
At the hearings which were fixed for 21 and 22 May 2019, two significant questions were to be decided: (i) whether the award is enforceable in England, given sanction Regulation 267, and (ii) what will be the terms of the awards.
In order to determine the issues before the Court, a full examination of Articles 38 and 42 of Regulation 267 was carried out. The High Court judgment was rendered on 24 July 2019. According to the judgment, as to the first issue, the supplier challenged only the enforcement of the interest component of the final award, invoking Regulation 267. In this respect, the Court found that the interest component of the Award during the period that the purchaser was a designated entity was precluded by Article 38 of Regulation 267 and could not be enforced. As to the second issue, the Court concluded that the total quantum due in respect of the Awards should be recalculated.
The Iranian purchaser appealed from the decision of the High Court before the Court of Appeal (Civil Division). The hearing session was held on 22–23 January 2020, and the appeal judgment was rendered on 12 February 2020. The same issues were brought before the Court of Appeal, namely, whether the 2012 Regulation operates to deprive the Iranian purchaser of any right to interest during the period which it has been subject to the EU’s sanctions regime. The Court of Appeal, having thoroughly examined the reasoning of the High Court, found in its judgment that the decision of the latter was in accord with both the language and the purpose of the relevant provisions of the 2012 Regulation, leaving the High Court’s decision impeccable. The Court of Appeal also shed light on the position of English Law as to the meaning of ‘any contract and transaction’ incorporated in Article 31(1), emphasizing that the parties’ obligation to enforce an arbitral award is of a contractual nature and stems from the parties’ commitment to enforce any resulting final award (as replicated in the ICC Arbitration Rules as well). This affirms the Court’s view that the enforcement of an arbitral award, in cases where one party is a designated entity under Regulation 267, falls within Article 38 of the Regulation. Thus, the appeal was rejected, and the Iranian purchaser was recognized to be entitled to the principal amount of the award plus interest for the period during which it was not a designated entity.
Mojtaba Asgharian
Diplomatic Solution of Disputes – JCPOA-Related Events
The Joint Comprehensive Plan of Action (‘JCPOA’) is an agreement reached on 14 July 2015 between Iran and the P5 + 1 (the US, Germany, France, the UK, China, and Russia). According to the agreement, multilateral sanctions against Iran were lifted in exchange for placing Iran’s nuclear program within the framework of the International Atomic Energy Agency (‘IAEA’). Furthermore, some restrictions were imposed on Iran’s nuclear program, including research and development, production and level, and extent of nuclear enrichment. The sanctions of the United Nations Security Council (‘UNSC’) and unilateral sanctions of the US and EU were gradually suspended or terminated on the basis of a timetable framework established in Resolution 2231 and the JCPOA.
Following the inauguration of former president Donald Trump in 2017, the policy of the new US administration was to criticize the JCPOA and the Obama administration for concluding an agreement in favour of Iran’s nuclear program. After several threats of non-cooperation and withdrawal from the JCPOA, on 8 May 2018, Trump announced his official decision to withdraw from the JCPOA. To confront the US withdrawal, in accordance with paragraphs 36 and 37 of the JCPOA preamble, Iran took five remedial steps from 18 May 2019 to reduce its JCPOA commitments. It should be noted that the possibility of a gradual reduction of commitments is foreseen in JCPOA itself, and any dispute arising from its implementation may be discussed through the Joint Commission as a special mechanism embedded in paragraphs 36 and 37. The steps taken by Iran are as follows:
The reaction of the remaining participants in the JCPOA has always been to express their concern about this issue and request Iran to abide by its commitments. In response to Iran’s gradual reduced adherence to its JCPOA commitments, the High Representative of the EU and the Foreign Ministers of France, Germany, and the UK issued several joint statements. Following these measures, the above states announced on 14 January 2020 that they had begun the process of returning the sanctions (known as the trigger or snapback mechanism) in accordance with Resolution 2231. This action was in the process of being drafted by the States in the Joint Commission of the JCPOA but was suspended later in anticipation of the results of the 2020 US presidential election.
At the same time, on 20 August 2020, while the Trump administration made efforts to effectively restore UNSC sanctions against Iran by launching the snapback mechanism, it was met with outright opposition from the remaining JCPOA participants, as well as members of the UNSC other than the Dominican Republic. The US submitted a letter requesting the return of sanctions on Iran to the President of the UNSC, but the president did not put it on the UNSC agenda for 25 August 2020, given the other members’ opposition. As a result, despite the Trump administration’s claim that all UNSC sanctions returned on 19 September 2020, few States around the world were willing to side with the US.
Another important issue was the termination of restrictions categorised in Resolution 2231 on 18 October 2020. The Iran’s arms embargo and some Iranian individuals and legal entities were removed from the UNSC sanctions list.
According to Resolution 2231, as a general matter, restrictions on Iran’s nuclear program were to expire over time. The arms embargo and the ban on the movement of sanctioned persons will likewise end five years after the adoption of the JCPOA.
Even in the final days of the Trump administration, the US attempted to fund the revival of the Iran Sanctions Committee in the UNSC, known as the 1737 Committee, in the 2021 UN budget, which was an attempt accompanied by another US defeat in the UN General Assembly vote. In November 2020, Joe Biden defeated Trump by a significant margin in the presidential election. President Biden had promised in his election campaign that he would return to the JCPOA if he won. Accordingly, negotiations to return to the JCPOA have been going on since November 2021.
It is worth mentioning as to the implementation of the JCPOA that on 2 December 2020, a 9-article Act was adopted by Iran’s parliament, the Islamic Consultative Assembly (Majlis), titled ‘Strategic Action for Sanctions and Protection of the Iranian Nation.’ The Act, going beyond the five aforesaid remedial steps taken by Iran’s Government, calls for the lifting of all restrictions and sanctions imposed on Iran in the fields of ‘nuclear, military and human rights and the like.’ According to Article 6, ‘[T]he Government of the Islamic Republic of Iran is obliged in case of non-fulfilment of the obligations of the state parties, including the P4 + 1 countries (Germany, France, UK, China, and Russia) towards Iran and normalization of banking relations and complete removal of barriers to export and full sale of Iranian petroleum products and the full and rapid return of foreign exchange from the proceeds of such sales, two months after the entry into force of this Act, to halt inspection beyond the Safeguards Agreement [between Iran and the IAEA], including the voluntary implementation of the Additional Protocol [to the Safeguards Agreement].’ In accordance with this Act, Iran renounced the Additional Protocol on 23 February 2021.
Abdollah Abedini
International Environmental Law
Environmental Protection
Law on Judicial and Insurance Protection of Officers of the Environmental Protection and Forestry Unit, 11 June 2020
In the field of internal laws and regulations, on 11 June 2020, the Law on Judicial and Insurance Protection of Officers of the Environmental Protection and Forestry Unit was approved. According to this law, the government is obliged to carry out its duties and responsibilities in accordance with the law in relation to death, incurable disease, disability, and the amount of compensation for loss of life, and to provide full insurance against other accidents.
Ali Mashhadi
Human Rights
Rights of the Child – Adoption of Child and Adolescent Protection Act
Children and Adolescents Protection Act, 12 May 2020
On 12 May 2020, the Iranian Parliament (‘Majlis’), adopted a new Children and Adolescents Protection Act (‘Act’). The new law replaced the former protective law of 2002. The law is based on the distinction between children and adolescents. Since Iran is a Member State of the UN Convention on the Rights of the Child (‘CRC’) and has declared its reservation to the convention, the new law contains important aspects. In its reservation, Iran declared that it is not bound by any provisions that are incompatible with Islamic law and enforced national laws. Specifically, under Article 1 of the Act, a child is every person under the Sharia age of maturity, which is 9 years for girls and 15 for boys, but protection is provided for any person who is under 18 years of age.
The Act provides for public intervention when a child or adolescent is endangered, even by his or her parents. Dangerous situations are any situations that risk victimization or damage to the physical, mental, social, moral, safety, or educational position of the child. Article 3 lists some kinds of dangerous situations, including continuous domestic violence, failure to register the birth or obtaining identity documents without a valid excuse, dropping out of school, physical or mental disability, development of certain diseases or sexual identity disorders, breach of criminal law by a child or the commission of a crime by a juvenile or their use in criminal activities, the entry of a child or juvenile into activities such as begging and trafficking, as well as their addiction to drugs, psychotropic substances, or alcohol, any harmful situation resulting from extreme poverty, displacement, asylum, migration or statelessness, abuse or exploitation of other children or adolescents, and exploitation of the child or adolescent.
The Act establishes the Child and Adolescent Protection Office in the judiciary and obliges some government organs to take certain protective measures. The Act criminalizes some acts and omissions. Article 9 of the Act extends protection to children against domestic violence and abuse and determines fines and punishments when the child is harmed because of the parents’ neglect or failures. The Act also criminalizes some acts such as preventing education, promoting or threatening escape from home or school, sexual assault, child trafficking, promoting or facilitation of child suicide, economic exploitation, and revealing the secrets of children at risk.
Under Article 30, the child has a right to seek preventive measures. All crimes under this Act have a public aspect and the consent of the victim cannot stop investigations or proceedings.
Amir Maghami
International Humanitarian Law
Protection of Individuals under International Humanitarian Law
Resolutions and Statements
Statement by the Ministry of Defence on the Occasion of the International Day on Mine Awareness and Assistance in Mine Action, 4 April 2020
The Islamic Republic of Iran is still suffering from unexploded landmines in its five western provinces as a result of the 1980–1988 war with Iraq. Although Iran has not yet acceded to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 1997, it has regularly announced its commitment to humanitarian demining and mine awareness, which is coordinated by the Iranian Mine Action Center.
Application of Hague & Geneva Conventions
Resolutions and Statements
Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security, First and Second Submission by the Islamic Republic of Iran, and Preliminary Reflection by the Islamic Republic of Iran on the Initial ‘Pre-Draft’ of the Report of the OEWG on Developments in the Field of Information and Telecommunications in the Context of International Security, April 2020
Iran, as the target of a major cyber-attack (Stuxnet) against its critical nuclear facilities, participates actively in discussions at the Open-ended Working Group established by General Assembly Resolution 73/27 of 5 December 2018. Regarding the application of international law, and in particular international humanitarian law, Iran’s main position is that ‘any language which gives an impression, explicitly or implicitly, that the ICT [Information Communication Technologies] environment, particularly the internet, constitutes a new battlefield’ should be avoided. For this reason, Iran has objected to any reference in the drafts prepared by the OEWG recognizing ICT military applications and applying international humanitarian law, which in its view is exclusively for armed conflicts and is inconsistent with ‘emerging consensus on the imperative of the peaceful nature of the ICT environment.’
Statement by the Representative of the Islamic Republic of Iran before the Sixth Committee of the 75th Session of the United Nations General Assembly on ‘Status of the Protocols Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Armed Conflicts’ (Agenda Item 83), New York, 4 November 2020
Iran adopted the 1949 Geneva Conventions in 1949 and is a signatory to the Additional Protocols of 1977. The establishment of Iran’s National Committee on Humanitarian Law in 1999 within the Iranian Red Crescent Society has been a significant step towards incorporating the rules of IHL into Iranian domestic law. Iran ‘fully recognizes the indispensable role of international humanitarian law, especially the provisions of the four Geneva Conventions, in minimizing the negative impact of armed conflicts. As such, cognizant of the horrible consequences of IHL violations, the Islamic Republic of Iran has made consistent efforts in promoting, publicizing and disseminating the knowledge of IHL norms, including among its armed forces.’
Katayoun Hosseinnejad
The Use or Threat of Force
Responses to Threats and Attacks
The Attack against Major General Soleimani, 3 January 2020
Following the attack by the armed forces of the United States against Major General Qasem Soleimani, the Commander of the Quds Force of the Islamic Republic of Iran, and his companions on 3 January 2020 at Baghdad International Airport, in a letter (S/2020/13, 3 January 2020) to the United Nations Security Council (‘UNSC’), Iran condemned this attack in the ‘strongest possible terms’ and while mentioning that ‘it is incumbent upon the Security Council to uphold its responsibilities and condemn this unlawful criminal act, …’ stressed that ‘the Islamic Republic of Iran reserves all of its rights under international law to take necessary measures in this regard, in particular in exercising its inherent right to self-defence.’
In response to statements by Iranian officials condemning the attack at Baghdad Airport, the President of the United States declared that the US had identified 52 Iranian sites including some very important to Iranian culture, and was ready to destroy them. Iran called this threat a gross violation of the peremptory norms of international law as well as the very fundamental principles enshrined in the Charter of the United Nations, particularly Article 2(4), which clearly prohibits the threat or use of force (S/2020/16, 8 January 2020).
In the early morning hours of 8 January 2020, the Iranian armed forces targeted an American airbase in Iraq. In its letter to the UNSC, Iran mentioned that: ‘in exercising our inherent right to self-defence in accordance with Article 51 of the Charter of the United Nations, the armed forces of the Islamic Republic of Iran took and concluded a measured and proportionate military response targeting an American airbase in Iraq from which the cowardly armed attack against General Soleimani was launched. The operation was precise and targeted military objectives, thus leaving no collateral damage to civilians and civilian assets in the area’ (S/2020/19, 8 January 2020).
The government of Iraq, which had already condemned the attack by the US forces, also reacted to Iran’s operation, calling it a violation of its territory (S/2020/26, 10 January 2020). In response, Iran stated: ‘Iran’s act on 8 January 2020 was a measured and proportionate response, in exercising its inherent right to self-defence, against an American airbase from which the cowardly armed attack against General Soleimani – who was in Baghdad upon the invitation of the Government of Iraq – was launched. The relevant Iraqi authorities were informed, in advance, that our act of self-defence was aimed only at the American airbase’ (S/2020/44, 16 January 2020).
Assassination of Mr. Mohsen Fakhrizadeh, 7 November 2020
On 7 November 2020, in the city of Absard in Tehran Province, Mr. Mohsen Fakhrizadeh, a prominent Iranian scientist, was assassinated. Iran condemned this attack and warned against ‘any adventurist measures by the United States and Israel’ and stressed that ‘the Islamic Republic of Iran reserves its rights to take all necessary measures to defend its people and secure its interests.’ (S/2020/1148, 30 November 2020).
Before this attack, on 29 September 2020, the Prime Minister and Defence Minister of Israel threatened Iran with a ‘pre-emptive strike’ and stated ‘we are not ruling out a preliminary strike.’ (https://sputniknews.com/middleeast/202009291080608977-netanyahu-not-ruling-out-preemptive-strike-against-iran/).
Iran called these statements ‘inconsistent with the purposes of the United Nations and a blatant violation of Article 2(4) of the Charter of the United Nations, which prohibits the threat or use of force.’ (S/2020/989, 8 October 2020).
Declaration of the General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to Cyberspace, 20 July 2020s
On 20 July 2020, the General Staff of the Iranian Armed Forces released a declaration on applicable law in cyberspace (https://www.aldiplomasy.com/en/?p=20901). This document, as mentioned in its introduction, clarifies the concepts, macro policies, and framework of the activities of the armed forces against the various and increasing threats of cyberspace. In accordance with Article I.3 of this declaration: ‘… a wide range of general principles of current international law, including equality of sovereignty of states, the prohibition against the use of force and act of aggression may apply to the use of cyberspace.’ As laid down in Article II.3 of this document: ‘Any intentional use of cyber-force with tangible or non-tangible implications which is or can be a threat to the national security or may, due to political, economic, social, and cultural destabilization, result in destabilization of national security constitutes a violation of the sovereignty of the state.’ Article IV of the Declaration under the title of ‘Use of Force and Cyber Attack from the View-point of the Armed Forces of the Islamic Republic of Iran’ stipulates that: ‘1. Armed forces of the Islamic Republic of Iran believe that certainly, those cyber operations resulting in material damage to property and/or persons in the widespread and grave manner and or it logically is probable to result in such implications constitutes use of force. Should such operations affect the vital national infrastructures, including defensive infrastructures- whether owned by the public or private sector- they shall violate the principle of the non-use of force; 2. Armed forces of the Islamic Republic of Iran, also, believe that their right to self-defence shall be reserved if the gravity of the cyber operation against the vital infrastructure of the state is reached in the threshold of the conventionally armed attack.’
Pouria Askari
Conflicting Views with Respect to Iran’s Ballistic Missile Activities
Following the conclusion of the Joint Comprehensive Plan of Action (‘JCPOA’) on 14 July 2015 and its endorsement by UNSC Resolution 2231 on 20 July 2015, Iran began testing ballistic missiles and launching satellites, which have since been the subject of numerous arguments between the JCPOA participant states over the (il)legality of Iran’s ballistic missile activities under Resolution 2231. On the one hand, the US, France, Germany, and the UK asserted that Iran’s actions violated the provisions of paragraph 3 of the second annex to Resolution 2231, and on the other hand, Iran and Russia contended that Iran’s missile activities had nothing to do with this paragraph. The said paragraph states: ‘[I]ran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.’ The main arguments advanced by some of these states through correspondence with the UNSC regarding Iran’s ballistic missile activities are as follows:
In a letter to the UNSC on 20 May 2020 (S/2020/428), the US stated that the launch of a military satellite by Iran violated Iran’s obligations under paragraph 3 of the second annex to Resolution 2231. The US, as in its previous letters on Iran’s missile activities, contended that such missiles are classified as ballistic missiles by the criteria of the Missile Technology Control Regime (‘MTCR’).
On the other hand, Russia opposed the position of the US in its letter to the UNSC of 28 May 2020 (S/2020/454). As with its previous stance on Iran’s missile activities, Russia believed that Iran has the right to peaceful use of space under international law. Treaties or customary international law do not prohibit such activities. In addition, Iran does not intend to use nuclear warheads in ballistic missiles and therefore was not in breach of paragraph 3 of the second annex to Resolution 2231.
Iran also reiterated its previous positions in a letter dated 26 May 2020 (https://undocs.org/en/S/2020/443), in response to letters from the US and Israel regarding Iran’s launch of military satellites and missile activities. In Iran’s view, its ballistic missiles are not designed to be used to launch nuclear warheads. From Iran’s point of view, the third paragraph of the second annex to Resolution 2231 does not express an obligation for Iran. Iran’s basic argument has been laid out in its previous letters to the UNSC. For example, in a letter to the UNSC (S/2018/1062) in response to the views of the UK, Germany, and France, Iran maintained that the views expressed in the joint letter of the three European States were not in accordance with paragraph 3 of second Annex to Resolution 2231 because of differences in the wording of provision related to the issue of Iran’s ballistic missile program indicated in Resolution 1929 of 2010 and Resolution 2231 of 2015. This change in the wording is meaningful in the use and addition of the term ‘designed to be’ to the phrase ‘capable of delivering nuclear weapons’ because the intention was to show that in practice, Iran’s missiles are designed to carry only a conventional warhead and not a nuclear warhead, and the third paragraph never sought to limit Iran’s conventional ballistic missile program. Moreover, this prohibition does not exist in international law. Additionally, the language and expression of the third paragraph are not mandatory. Iran is not seeking a nuclear weapon, will not possess a nuclear weapon in the future, and is fully committed to the Nuclear Non-Proliferation Treaty and the UNSC. In addition, the letter of the three countries refers to the MTCR, while in Resolution 2231, there is no implicit or explicit reference to this regime or its definitions and criteria. Therefore, none of the criteria can be used in the interpretation of the third paragraph. The regime is the product of a political agreement between 35 member states exporting ballistic missile equipment based on the commercial and political interests of its members and is unrelated to Resolution 2231.
The UK, Germany, and France on the other hand are of the view (S/2018/1062) that because Iran’s ballistic missile activities fall within the definition of ballistic missiles under the MTCR, it is contrary to the provisions of paragraph 3 of the second annex to Resolution 2231. The first part of the regime states that if a missile system is capable of carrying a warhead of at least 500 kilograms and has a range of 300 kilometres, it will also be able to carry nuclear weapons.
Russia also wrote a letter (S/2018/967) to the UNSC in response to the above letter stating that the first part of the MTCR was merely a means of restricting the export of certain missile technology items and that the purpose of Resolution 2231 was not to ensure that missiles designed under Resolution 2231 comply with the regime’s criteria.
Abdollah Abedini