Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment

Abstract

On 14 June 2016, Iran lodged an application against the United States in the Case concerning Certain Iranian Assets before the ICJ. The case was filed shortly after the US Supreme Court’s judgment in Bank Markazi v. Peterson, confirming that victims of terrorist attacks, in which Iran was allegedly involved, may execute domestic judgments against property of Iran’s central bank. Over the course of the last decades, the US has gradually opened its courts for tort claims of terrorism victims against Iran by various legislative and executive acts. Iran now argues that those measures violate provisions of the 1955 Treaty of Amity, Economic Relations, and Consular Rights.

This article discusses the pressing question Iran’s application raises for contemporary international law: To what extent may anti-terrorism measures prevail over State immunity and treatment standards? To answer the question, this contribution provides an analysis of legal issues raised in the application and discusses potential arguments by both States. By doing so, it highlights the most controversial questions the ICJ is requested to resolve, such as the legal validity of a terrorism exception to State immunity, the content of contemporary treatment standards for foreign investments, and their relevance in light of unilateral measures against State-owned corporations.

Keywords: Certain Iranian Assets, United States, Iran, State Immunity, Standards of Protection, Expropriation, Fair and Equitable Treatment, Full Protection and Security, Terrorism Exception