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From Tehran to Moscow: The ICJ’s 2023 Certain Iranian Assets Judgment and Its Broader Ramifications for Unilateral Sanctions, Including Against Russia

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Abstract

On 30 March 2023, the International Court of Justice delivered its judgment on the merits in the Certain Iranian Assets case brought by the Islamic Republic of Iran against the United States. This article takes a closer look at the reasoning adopted by the Court, while zooming in on noteworthy findings of interest for international law. In addition, it examines the potential ramifications of the judgment at a time when unilateral sanctions are increasingly prevalent and far-reaching. In particular, we examine what the judgment holds in store for the pending 1955 Treaty of Amity case between the same two protagonists, as well as for the unprecedented range of unilateral sanctions adopted against Russia in response to its invasion of Ukraine.

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Notes

  1. Certain Iranian Assets (Islamic Republic of Iran v. United States of America) (Judgment of 30 March 2023), available at https://www.icj-cij.org/case/164 (‘Certain Iranian Assets’).

  2. Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment), ICJ Reports 2003, p. 161.

  3. Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Preliminary Objections), ICJ Reports 2021, p. 9.

  4. Treaty of Amity, Economic Relations, and Consular Rights (adopted on 15 August, entered into force 16 June 1957), 284 UNTS 93.

  5. US Department of State, Remarks to the Media by Michael R. Pompeo (3 October 2018), available at https://2017-2021.state.gov/remarks-to-the-media-3/index.html; Certain Iranian Assets (Counter-Memorial submitted by the United States of America), 14 October 2019, para. 4.9. The Treaty ceased to have effect on 3 October 2019 upon the expiry of the one-year notice period.

  6. Certain Iranian Assets, para. 231. Note: due to the termination of the Treaty of Amity in 2018, the Court could not order the cessation of the US’ acts. Absent an agreement between the parties on the amount of compensation within two years, either State can request the Court to determine the appropriate amount.

  7. In a statement, the US considered the judgment to be a ‘major victory for the United States and victims of Iran’s State-sponsored terrorism’. See US Department of State, Judgment in Certain Iranian Assets Case: press statement (30 March 2023), available at www.state.gov/judgment-in-certain-iranian-assets-case. Iran’s Foreign Ministry called the Court’s ruling ‘another proof of […] Iran’s righteousness and the violations by the US government’. See Iran Ministry of Foreign Affairs, Iranian Foreign Ministry’s statement about the ruling of the International Court of Justice (30 March 2023), available at https://en.mfa.ir/portal/newsview/715766.

  8. Certain Iranian Assets (Counter-Memorial submitted by the US), 14 October 2019, paras. 1.1–1.2.

  9. Determination Pursuant to Sect. 6(i) of the Export Administration Act of 1979—Iran, 49 Federal Register (23 January 1984), 2836.

  10. Antiterrorism and Effective Death Penalty Act of 1996, para. 221, codified at 28 U.S.C. paras. 1605 et seq.

  11. Foreign Sovereign Immunities Act, 28 U.S.C. paras. 1602 et seq.

  12. Deborah Peterson, et al. v. Islamic Republic of Iran, et al., case no. 10-cv-4518 (S.D.N.Y. Jul. 24, 2018).

  13. Terrorism Risk Insurance Act of 2002, Pub. L. 107–297, 116 Stat. 2322, codified at 28 U.S.C. para. 1610.

  14. National Defense Authorization Act for Fiscal Year 2008, para. 1083.

  15. Note: The UN Security Council recognised that Iranian banks were being used to pursue proliferation-sensitive nuclear activities and urged all States to exercise caution in dealing with these banks. See e.g. UN Security Council Res. 1929 (9 June 2010), UN Doc. S/RES/1929.

  16. EO 13599, 77 Federal Register 6659 (5 February 2012).

  17. Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. 112–158, 126 Stat. 1214, 22 U.S.C. para. 8701.

  18. Certain Iranian Assets (Islamic Republic of Iran v. United States of America) (Application Instituting Proceedings), 14 June 2015, para. 7.

  19. Certain Iranian Assets (Islamic Republic of Iran v. United States of America) (Preliminary Objections), ICJ Reports 2019, p. 7 (‘Certain Iranian Assets (Preliminary Objections)’).

  20. Ibid., para. 65.

  21. Certain Iranian Assets, para. 38.

  22. Ibid., para. 39.

  23. Ibid., para. 38.

  24. Ibid., para. 52.

  25. Certain Iranian Assets (Preliminary Objections), para. 92.

  26. Ibid., para. 97.

  27. Certain Iranian Assets, paras. 50, 52.

  28. Ibid., para. 51.

  29. Certain Iranian Assets (Separate Opinion of Judge Bennouna); Certain Iranian Assets (Separate Opinion of Judge Yusuf); Certain Iranian Assets (Separate Opinion, partly concurring and partly dissenting of Judge Robinson); Certain Iranian Assets (Declaration of Judge Salam); Certain Iranian Assets (Separate Opinion of Judge ad hoc Momtaz).

  30. Certain Iranian Assets (Preliminary Objections), para. 92.

  31. Certain Iranian Assets (Separate Opinion of Judge Bennouna), para. 8.

  32. Certain Iranian Assets (Separate Opinion of Judge Yusuf), para. 7.

  33. While the obligation to exhaust local remedies does not apply when a State initiates a claim based on violations of its own rights and the individual rights of its nationals, and where those rights are interdependent, in the present case no such interdependence was found to exist. Nor did the Court deem it necessary to determine whether Iran’s claims were brought ‘preponderantly’ on the basis of an injury to one or more of its nationals, or on the basis of injury to the State in the sense of Art. 14(3) of the ILC Articles on Diplomatic Protection (‘ADP’). International Law Commission (‘ILC’), ‘Draft Articles on Diplomatic Protection with commentaries’ (2006), available at https://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf. Certain Iranian Assets, paras. 65–66, 68.

  34. Ibid.

  35. Certain Iranian Assets, paras. 69, 72–73.

  36. This dictum was supported by all judges, save for Judge Sebutinde and Judge ad hoc Barkett.

  37. ILC, ‘Draft Articles on Diplomatic Protection with commentaries’ (2006), available at https://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf, p. 47. In a similar vein, Amerasinghe (2004), p. 208.

  38. Certain Iranian Assets, paras. 77–78.

  39. ILC, ‘Diplomatic protection: Sixth report on diplomatic protection, by Mr. John Dugard, Special Rapporteur’ (2004), UN Doc. A/CN.4/546, para. 2.

  40. See e.g., Avena and Other Mexican Nationals (Mexico v. United States of America) (Judgment), ICJ Reports 2004, p. 12, paras. 45–47; Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment), ICJ Reports 2003, p. 161, paras. 27–30; Legality of Use of Force (Serbia and Montenegro v. Belgium) (Preliminary Objections of the Kingdom of Belgium), 5 July 2000, para. 479.

  41. See e.g., Hulley Enterprises Limited (Cyprus) v. The Russian Federation (Final Award), PCA Case No. 2005-03/AA226, 18 July 2014, paras. 1358–1363; Guyana v. Suriname (Award), PCA Case No. 2004-04, 17 September 2007, para. 418.

  42. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) (Judgment), ICJ Reports 2002, p. 3 (Dissenting opinion of Judge Van den Wyngaert), para. 35; Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgment), ICJ Reports 1986, p. 14 (Dissenting opinion of Judge Schwebel), paras. 268–272.

  43. Certain Iranian Assets (Preliminary Objections), para. 124.

  44. Certain Iranian Assets, para. 81.

  45. Ibid., para. 82.

  46. In this sense: Tulsyan (2023).

  47. Certain Iranian Assets, para. 93. Like the US argument based on the ‘unclean hands’ doctrine, the ‘abuse of rights’ plea had been dismissed as an objection to admissibility in the 2019 judgment. This did not, however, prevent the same argument from being invoked at the merits stage. Certain Iranian Assets, para. 88.

  48. Ibid., para. 95.

  49. Ibid., para. 102.

  50. Ibid., para. 108.

  51. See e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Judgment), ICJ Reports 1986, p. 14, para. 282; Oil Platforms (Islamic Republic of Iran v. United States of America) (Preliminary Objection), ICJ Reports 1996, p. 803 (‘Oil Platforms (Preliminary Objection)’), para. 43; Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Provisional Measures, Order of 3 October 2018), ICJ Reports 2018, p. 623, para. 37.

  52. Certain Iranian Assets, para. 108.

  53. Russia—Measures Concerning Traffic in Transit, Panel Report, WT/DS512/R, 5 April 2019, paras. 7.134–5.

  54. Certain Iranian Assets (Separate Opinion, partly concurring and partly dissenting of Judge ad hoc Barkett), paras. 18–21.

  55. In this sense: Ostranský (2023): ‘It could be safely said that the court has not brought much clarity on the topic. Perhaps aware of the potential impact of its decision beyond this case, the court adopted a highly restrained approach to the question, effectively all but sidelining the issue.’

  56. Certain Iranian Assets, para. 141.

  57. Ibid., paras. 142, 143.

  58. Ibid., paras. 147–149.

  59. Ibid., para. 147.

  60. Ibid., para. 148.

  61. Section 201(a) of the TRIA encompasses ‘the blocked assets of any agency or instrumentality’. Similarly, Section 1610(g)(1) of the FSIA denotes ‘the property of an agency or instrumentality’ and explicitly includes ‘property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity’. EO 13599 refers to ‘[a]ll property and interests in property of any Iranian financial institution’.

  62. Certain Iranian Assets, para. 150.

  63. Ibid., para. 155.

  64. Ibid., para. 159. Having so held, the Court found it unnecessary to examine whether the measures were also discriminatory. Note: while twelve judges agreed with the Court’s finding that the US infringed Art. IV(1) of the Treaty, its finding of a parallel breach of Art. III(1) was only supported by eight votes to seven.

  65. Certain Iranian Assets, para. 170.

  66. Ibid., para. 176.

  67. Crawford (2012), p. 624.

  68. See Philip Morris v. Uruguay (Award), ICSID Case No. ARB/10/7, 8 July 2016, paras. 287–307; Saluka Investments B.V. v. The Czech Republic (Partial award), UNCITRAL, 17 March 2006, paras. 255, 262;

    Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States (Award), ICSID Case No. ARB (AF)/00/2, 29 May 2003, para. 199.

  69. See Restatement (Third) of Foreign Relations of the United States, para. 712, Comment (g) (1987); Art. 10(5) Harvard Draft Convention on the International Responsibility of States for Injury to Aliens.

  70. See Salacuse (2021), p. 73; Yannaca-Small (2010), p. 448; OECD (2004), p. 18.

  71. Certain Iranian Assets, para. 177.

  72. Ibid., para. 184.

  73. Ibid., para. 185.

  74. Ibid.

  75. Ibid., para. 186.

  76. Ibid., paras. 186–187.

  77. Ibid., para. 188.

  78. In its argumentation, Iran contended that the doctrine necessitates a proportionality test. The US considered otherwise. See Certain Iranian Assets, paras. 173, 176.

  79. Certain Iranian Assets (Separate Opinion of Judge Charlesworth), paras. 3–4; Certain Iranian Assets (Separate Opinion, partly concurring with and partly dissenting from Judge ad hoc Barkett), para. 40.

  80. Certain Iranian Assets (Dissenting Opinion of Judge Sebutinde), para. 30; Certain Iranian Assets (Separate Opinion, partly concurring and partly dissenting of Judge ad hoc Barkett), para. 41.

  81. Certain Iranian Assets (Declaration of Judge Bhandari), paras. 5 et seq. Judge Bhandari contended that a court’s lawful application of legislation, even if it that legislation violates a treaty obligation, may not automatically constitute expropriation. After examining a series of judicial decisions, in his opinion he concluded that, in essence, expropriation typically requires a judicial decision that involves a denial of justice or other violations of international law, such as a lack of due process or non-compliance with specific procedural safeguards found in treaties and customary international law.

  82. Ostranský (2023).

  83. Certain Iranian Assets, paras. 171, 191.

  84. See e.g., Crystallex International Corporation v. Bolivarian Republic of Venezuela (Award), ICSID Case No. ARB(AF)/11/2, 4 April 2016, para. 632; AWG Group Ltd. v. The Argentine Republic (Decision on liability), UNCITRAL, 30 July 2010, para. 179; Saluka Investments B.V. v. The Czech Republic (Partial award), UNCITRAL, 17 March 2006, para. 484.

  85. See e.g., National Grid plc v. The Argentine Republic (Award), UNCITRAL, 3 November 2008, para. 189; Compañiá de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic (Award), ICSID Case No. ARB/97/3, 20 August 2007, para. 7.4.15; CME Czech Republic B.V. (The Netherlands) v. The Czech Republic (Partial award), UNCITRAL, 13 September 2001, para. 613.

  86. Certain Iranian Assets, para. 190.

  87. Ibid.

  88. See El Paso Energy International Company v. The Argentine Republic (Award), ICSID Case No. ARB/03/15, 31 October 2011, para. 422; Saluka Investments B.V. v. The Czech Republic (Partial award), UNCITRAL, 17 March 2006, para. 484.

  89. See Junngam (2018), p. 52; Dolzer and Stevens (1995), p. 61.

  90. Certain Iranian Assets, para. 190. It is worth noting, by contrast, that the Court did not deem problematic the significant overlap between Arts. IV(1) and IV(2) resulting from its application of the reasonableness requirement to the issue of judicial expropriation (see above). In a similar sense: Ostranský (2023).

  91. Crystallex International Corporation v. Bolivarian Republic of Venezuela (Award), ICSID Case No. ARB(AF)/11/2, 4 April 2016, para. 634; Spyridon Roussalis v. Romania (Award), ICSID Case No. ARB/06/1, 7 December 2011, para. 321; AWG Group Ltd. v. The Argentine Republic (Decision on liability), UNCITRAL, 30 July 2010, para. 174; Sempra Energy International v. The Argentine Republic (Award), ICSID Case No. ARB/02/16, 28 September 2007, para. 323.

  92. Certain Iranian Assets, para. 191.

  93. Ibid., paras. 161–162, 167.

  94. Ibid., paras. 194–199.

  95. Ibid., para. 203.

  96. Ibid., para. 207.

  97. Oil Platforms (Preliminary Objection), paras. 45, 49.

  98. Certain Iranian Assets, paras. 214 et seq.

  99. Ibid., paras. 215–216.

  100. Ibid., para. 219.

  101. Ibid., para. 221.

  102. Available at www.icj-cij.org/declarations/ir.

  103. Alleged Violations of State Immunities (Islamic Republic of Iran v. Canada) (Application Instituting Proceedings), 27 June 2023; Von Stosch and Herbert (2023).

  104. E.g. Jamshidi (2023).

  105. In this sense e.g. ibid; Chachko (2019) (finding that, had the ICJ not narrowed the scope of the Certain Iranian Assets procedure at the preliminary objections stage, the case ‘would likely have resulted in a rebuke of U.S. practice with respect to the terrorism exception under the [FSIA].’). See further on the ‘terrorism exception’: Stewart (2019), pp. 651–669; Grandaubert (2016).

  106. Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) (Judgment), ICJ Reports 2012, p. 99, para. 84.

  107. Ibid., para. 88.

  108. Letter dated 5 May 2016 from the Permanent Representative of the Islamic Republic of Iran to the United Nations addressed to the Secretary-General, UN Doc. A/70/861, S/2016/420.

  109. Dodge (2023).

  110. Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) (Judgment), ICJ Reports 2012, p. 99, para. 84.

  111. Dodge (2023).

  112. Aerial Incident of 8 January 2020 (Canada, Sweden, Ukraine and United Kingdom v. Islamic Republic of Iran) (Joint Application Instituting Proceedings), 4 July 2023.

  113. Von Stosch and Herbert (2023).

  114. See Ostranský (2023).

  115. Sidley Austin (2023).

  116. Ibid.

  117. Bodoni and Nardelli (2023); Caprile and Delivorias (2023).

  118. See e.g., Commission Press Release, ‘Ukraine: Commission presents options to make sure that Russia pays for its crimes’, 30 November 2022, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7311.

  119. Consider e.g. the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, [1997] OJ 327/3 (‘Partnership Agreement’). See in particular the definition of a ‘company’ in Art. 30(h).

  120. Kmiotek (2023).

  121. See also Sect. 7 below.

  122. Wuerth (2019), p. 266.

  123. Ibid., p. 277.

  124. Ibid., p. 266.

  125. Wuerth (2023), p. 2.

  126. Certain Iranian Assets, para. 51.

  127. See supra Sect. 3.1.

  128. Certain Iranian Assets, para. 188 of the judgment renders implicit support to the view that a (lengthy) asset freeze—as opposed to actual confiscation—may of itself qualify as a form of indirect expropriation of property without compensation (in a similar sense, see e.g.: Collins (2017), p. 292; Dupont (2015), p. 203; Ruys and Ryngaert (2020), pp. 53–54. It is indeed noteworthy that the ICJ found that EO 13599 did not entail a breach of Art. IV(2) of the Treaty (dealing with expropriation) because Iran had failed to identify the property of Iranian companies specifically affected by this instrument (other than Bank Markazi), without suggesting that a ‘mere’ asset freeze would, because of its supposedly temporary nature, be incapable of qualifying as a form of expropriation.

  129. Certain Iranian Assets, paras. 155–156.

  130. The Iranian application in the 1955 Treaty of Amity case refers to sanctions against almost 500 entities, including the Central Bank of Iran, the majority of Iranian banks, Iranian airlines, Iranian oil companies, etc. Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Application Instituting Proceedings), 16 July 2018, para. 28.

  131. Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, [2014] OJ L 78/6 (as amended).

  132. For the (off-handed) approach of the EU Courts, see e.g., Judgment of the General Court, Pumpyanskiy v. Council of the EU, T-270/22, 6 September 2023, ECLI:EU:T:2023:490, at para. 89: ‘Second, the fact that the applicant has no nexus with the Kremlin elite, or did not have a direct role in actions against Ukraine, is irrelevant since he was not subject to restrictive measures for that reason, but because he is a leading businessperson operating in economic sectors which constitute a substantial source of revenue for that government.’ On the broadening reach of EU sanctions, see Ruys and Rodríguez Silvestre (2024).

  133. Ruys and Ryngaert (2020), p. 54.

  134. See e.g. Art. 10(2) of the US-Belgium FCN Treaty (Treaty of Friendship, Establishment and Navigation (adopted 21 February 1961, entered into force 3 October 1963), 480 UNTS 149).

  135. Articles of Agreement of the International Monetary Fund (signed 27 December 1945, entered into force 27 December 1945, as amended), 2 UNTS 39 (‘IMF Articles of Agreement’), Art. VIII(2)(a).

  136. Certain Iranian Assets (Rejoinder submitted by the United States of America), 17 May 2021, paras. 12.54 et seq.

  137. Ibid., para. 12.63.

  138. IMF Executive Board, ‘Payments Restrictions for Security Reasons: Fund Jurisdiction’ (Decision No 144-(52/51), 14 August 1952). The decision has a broad scope and ‘applies to all restrictions on current payments and transfers, irrespective of their motivation and the circumstances in which they are imposed’. See further Viterbo (2019), pp. 164 et seq.; Ruys and Ryngaert (2020), pp. 33–38.

  139. These reports can be consulted online at www.elibrary-areaer.imf.org/Pages/Home.aspx.

  140. Ibid. See e.g., the ‘country report’ for the US for the year 2022, available at www.elibrary.imf.org/display/book/9798400235269/9798400235269.xml?code=imf.org, p. 4097.

  141. It is also interesting that none of the judges took beef with, or even addressed, the Court’s interpretation of Art. VIII(1) of the Treaty of Amity in their dissenting or separate opinions.

  142. Ruys and Ryngaert (2020), p. 38.

  143. See further, Reinisch and Schreuer (2020), pp. 970 et seq. [chapter 8 (‘transfer clauses’)].

  144. See further: ibid.

  145. Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Preliminary Objections submitted by the United States), 23 August 2019, at paras. 7.1 et seq. The US distinguishes ‘third country measures’ from ‘bilateral sanctions’, which generally prohibit US persons from engaging in transactions with Iran or individuals or entities in Iran. Against this, see: the Observations and submissions on the U.S. preliminary objections submitted by the Islamic Republic of Iran, 23 December 2019, at paras. 3.1 et seq.

  146. Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Preliminary Objections), ICJ Reports 2021, p. 9, para. 81.

  147. EO 13846, 83 Federal Register 38939 (6 August 2018), available at www.govinfo.gov/content/pkg/DCPD-201800524/pdf/DCPD-201800524.pdf.

  148. Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America) (Provisional Measures, Order of 3 October 2018), ICJ Reports 2018, p. 623, para. 69.

  149. European Commission, ‘Consolidated FAQs on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014’ (2023), Chapter D.1, Q 29, available at https://finance.ec.europa.eu/system/files/2023-07/faqs-sanctions-russia-consolidated_en_1.pdf.

  150. Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, [2014] OJ L 229/1 (as amended), Annex XVIII.

  151. See Council of the EU, ‘EU sanctions against Russia explained’, available at www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/sanctions-against-russia-explained (‘over time the ban is likely to result in the grounding of a significant proportion of the Russian civil aviation fleet’).

  152. Council Regulation (EU) No 269/2014 (as amended), supra n. 131. Further, see e.g. Ruys and Rodríguez Silvestre (2024).

  153. Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy) (Judgment), ICJ Reports 1989, p. 15.

  154. Kmiotek (2023); Bose et al. (2023).

  155. For an overview see the UNCTAD investment policy hub search engine https://investmentpolicy.unctad.org. It goes without saying that the scope and substantive protection may differ from one treaty to another.

  156. Ibid.

  157. Agreement on Trade Relations between the United States and Russia, 1 June 1990, text available at https://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005377.asp.

  158. Agreement on Partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, [1997] OJ L 327/3.

  159. See in particular Art. 101 of the EU-Russia Partnership Agreement and Art. XII of the US-Russia Agreement on Trade Relations.

  160. See e.g., Accord entre les Gouvernements du Royaume de Belgique et du Grand-Duché de Luxembourg, et le Gouvernement de l’Union des Républiques Socialistes Soviétiques, concernant l’encouragement et la protection réciproques des investissements, 9 February 1989, available at https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/4695/download, Arts. 9–10; Overeenkomst tussen de Unie der Socialistische Sovjetrepublieken en het Koninkrijk der Nederlanden inzake de Bevordering en Wederzijdse Bescherming van Investeringen [Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Union of Soviet Socialist Republics], 5 October 1989, available at https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5959/download, Art. 9.

  161. EU-Russia Partnership Agreement, Art. 99. See also: Judgment of the Court of Justice of the EU, Rosneft, C-72/15, 28 March 2017, ECLI:EU:C:2017:236, paras. 110–113 (granting the Council of the EU ‘broad discretion’ in applying the security exception).

  162. Treaty between the United States of America and the Russian Federation concerning the encouragement and reciprocal protection of investment, 17 June 1992 (not in force), available at https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2236/download, Art. X.

  163. See e.g. the BITs with Belgium/Luxembourg, the Netherlands or the United Kingdom.

  164. Of course, this also raises the thorny question of whether, and to what extent, international law permits so-called ‘third-party’ countermeasures or ‘solidarity’ measures.

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  1. Professor of International Law, Ghent Rolin-Jaequemyns International Law Institute (GRILI), Ghent University, Ghent, Belgium

    Tom Ruys

  2. LL.M. Candidate, LSE, London, UK

    Mira Deweerdt

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Ruys, T., Deweerdt, M. From Tehran to Moscow: The ICJ’s 2023 Certain Iranian Assets Judgment and Its Broader Ramifications for Unilateral Sanctions, Including Against Russia. Neth Int Law Rev 70, 273–299 (2023). https://doi.org/10.1007/s40802-023-00240-6

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