Authors: Akhand Pratap Rai and Aman Mani Tripathi*
The United States sanction on Iran at the time of COVID-19 crisis caused damages to the Iranian people. Essential Medicines and medical equipment are affected and also put a lot of obstacles for Iran struggle against this pandemic. The unilateral act of the United States to impose sanction on Iran, not only violate the state responsibility under International law, but it also violates the International Human Right obligations.
Article 2(4) of the United Nations Charter prohibited ‘use of force’ under International Law except ‘right to self-defence’ mentioned in Article 51 of the United Nations Charter. But, whether the unilateral coercive measures of a state to impose ‘economic sanction’ against other State or states under International Law is fall under the purview of ‘use of force’ or an ‘act of aggression’ is still a debatable issue. Though, United Nations General Assembly (UNGA) adopts resolutions calling on states not to recognize unilateral coercive economic measures imposed by any countries across territorial boundaries, which are contrary to the recognized principle of International Law. In the International Court of Justice (ICJ), the Principle Judicial Organ of United Nations decision on the merits of Nicaragua vs United States the Court stated clearly that ‘use of force’ does not always entail an armed attack.
U.S. Sanction and State Responsibility
Iran challenged the United States sanction on Iran in the year 2018 before the International Court of Justice (ICJ). Iran claims that the United States sanction violates the provision under the Treaty of Amity 1955. The International Court of Justice indicates certain measures as a case pending for final decision to protect the rights claimed by Iran. The International Court of Justice (ICJ) held that the United States should, in accordance with its obligations under the Treaty of Amity 1955 must remove, any impediments to the free exportation to the territory of Iran of goods required for humanitarian needs such as (I) medicines and medical devices (ii) foodstuff and agricultural commodities (iii) goods and services as are necessary for the safety of civil aviation. In the current global crisis due to COVID-19, the United States sanction disrupted the financial stability of Iran to fight against the pandemic, and it is a clear violation of International law. A breach of International obligations by a State entails its international responsibility of an internationally wrongful act of State by actions or omission or a combination of both. Article 1 of the Draft Articles on Responsibility of States for International Wrongful Acts, 2001(hereinafter referred to as ‘ARSIWA’) drafted by the International Law Commission, states that:
“Every internationally wrongful act of a State entails the international responsibility of that State”.
The International Law Commission (ILC) is a subsidiary organ of United Nations General Assembly (UNGA). It established under Article 22 of United Nations Charter in 1947, to undertake the mandate of the General Assembly, under article 13(1)(a) of the Charter of the United Nations for “progressive development of international law and its codification”.
The Permanent Court of Justice (PCIJ)in (Phosphates in Morocco, Judgment, S.S. “Wimbledon”, Factory at Chorzów, Jurisdiction, Judgment) and its International Court of Justice (ICJ) (Corfu Channel, Merits, Judgment, Nicaraguavs. United States, Merits, Judgment, Gabcíkovo-Nagymaros Project case)cases declared that when a state commits an internationally wrongful act against another international state responsibility established between the two states. The International Court of Justice (ICJ), in its advisory opinion on Reparation for Injuries and on the Interpretation of Peace Treaties (Second Phase) stated that “refusal to fulfil a treaty obligation involves international responsibility”.
Now, the question arises that what constitutes an internationally wrongful act of a state. Article 2 of ‘ARSIWA’ states that:
“There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.” The constituent elements for the existence of an internationally wrongful act of State are ‘conduct of state attributable to the state’ and ‘conduct must breach international legal obligation’ in force for that State at that time (Malcolm Evans). The International Court of Justice (ICJ), in the United States Diplomatic and Consular Staff in Tehran case pointed out that act is imputable to State, and it must consider their compatibility or incompatibility with the obligation under treaties in force or under any other rules of international law that may be applicable.
Circumstances precluding wrongfulness
The State can claim defences or excuses for not performing international obligation, which termed as ‘Circumstances precluding wrongfulness’. Chapter V of ARSIWA sets out six circumstances precluding the wrongfulness of conduct of states. This chapter provides a shield against the breach of an international obligation by the rules. These six circumstances are consent, self-defence, countermeasures, force majeure, distress and necessity. It should be noted that Article 26 of ARSIWA makes it clear that none of these circumstances precluding wrongfulness can be relied on if to do so would conflict peremptory norms of general international law. The United States unilateral sanction against Iran may depend on the defences of “countermeasures”. However, these countermeasures imply non-armed measures such as coercive economic measures. The International Law Commission (ILC) in ARISWA commentaries, appears in the Yearbook of the International Law Commission, 2001 (Vol. II, Part Two) calls the unilateral sanction by states as “countermeasures”. Chapter VII of the United Nations charter uses the term “measures”, not “sanction”. Judicial decisions, State practice and doctrine confirms that “countermeasures” taken by a state are not wrongful acts, but recognized as a valid means of self-help as long as it does not violate the peremptory norms of general international law.
Do U.S. “countermeasure” violates peremptory norms of general international law?
Article 26 of ARSIWA states that:
“Nothing precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”.
Accordance with Article 53 of the Vienna Convention on Law of Treaties 1969, a treaty which conflict with a peremptory norm of general international law is void. A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. The United Nations placed sanction on Iran since 1979 after a hostage crisis in the U.S. Embassy in Tehran. Iran was later hit by even more sanction over its nuclear programme, but under an International deal in 2015, they agreed to limit their nuclear activities. In 2018, the United States decided to re-impose sanction that the United States lifted under the Joint Comprehensive Plan of Action (JCPoA).
Medicine has become more expansive. Some drug supplier is refusing to sell the drug in Iran to avoid falling in foul of the United States. This has led to shortages of medicine, putting thousands of lives at risk and harms the Iranian Right to Health.
2. Civil Aviation
Iranian planes are so old. Some Iranian call them ‘flying coffin’ and no wonder, in the past 25 years, more than 2000 people have died in air crashes involving Iranian Planes. For the last 40 years, Civil Aviation in Iran has struggled to update and maintain their fleets because of trade sanction. Under an international deal in the year 2015, Boeing and Airbus were going to sell Iran almost 200 planes. But three years later only handful planes were delivered before the United States revoked the export licenses.
3. Ink and Paper
Iran is dealing with ink shortage, and the price of imported paper has more than tripled since they pulled out of the nuclear deal. The publisher of newspaper and books are suffering from this crisis.
In Iran, one kilogram of red meat has become a luxury. Before the new sanction kicked, it cost 10 U.S. dollars. Now, the price is more than doubling. Importing food has been made difficult by sanctions on Iranian banks and financial institutions.
These are the only few examples which made the life of Iranian people much miserable. An independent expert appointed by Human Right Council has expressed grave concern over economic sanction for political purposes. It violates human rights and the norm of international behaviour.
Article 50 Paragraph 1 of ARSIWA specifies certain obligations, the performance of which may not be impaired by countermeasures. Article 50 paragraph 1 states that:
“1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.”
The U.S., by imposing sanction on Iran directly or indirectly halt the supply of medicines and medical equipment, violates the right to health and life under Human Right obligations. The United States is obliged for the protection of the fundamental human right of Iranian people.
In the global crisis, due to COVID-19 the United States economic sanction on Iran constitute an internationally wrongful act towards Iran. It violates the state responsibility, human rights obligation as well as the peremptory norms of general international law. Economic restriction is likely to result in violation of basic human rights and has adversely affected the nature of foreign relations. Economic sanctions doesn’t resolve the political gap between governments. The dominant position of any states in the global financial arena must not be abusive to cause economic hardship to the economy of sovereign states contrary to international law.
*Aman Mani Tripathi (Aman Mani Tripathi is an LL.M Candidate (International Law) at the Faculty of Legal Studies, South Asian University, New Delhi. He qualified National Eligibility Test for Assistant Professor (Law) conducted by National Testing Agency on behalf of University Grant Commission (UGC) the apex regulatory body of higher education in India, held in June 2019.
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