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The ICJ's judgment of 30 March 2023 in the case relating to certain Iranian assets sheds new light on two prominent issues of international law. First, the Court was required to assess whether the rule of prior exhaustion of local remedies was applicable to some of the claims raised by Iran and, in the affirmative, whether Iranian companies complied with that rule. The Court did not assess the nature of such claims by relying on Article 14, paragraph 3, of the draft articles on diplomatic protection, but investigated whether Iran asserted its own rights or the rights of Iranian companies. This choice departs from the notion of diplomatic protection as codified by the International Law Commission, which is focused on the existence of an injury to individuals. The second relevant aspect of the judgment concerns the relationship between international and domestic law. In this regard, the Court deemed that local remedies were ineffective because of the United States doctrine of federal pre-emption over international law. After dissecting the reasoning of the Court, this article considers the choices of judicial policy underpinning this judgement.
