By Iran Review
By Mohsen Mohebi*
The US Supreme Court has handed down a ruling based on which about 2 billion dollars of Iran’s frozen assets will be paid as remuneration to families of Americans killed in terrorist attack on a US Marines base in Beirut in 1983. Two points are worthy of mention here:
1. Judicial immunity of foreign governments in domestic courts, and
2. Executive immunity, which is a classic topic in international relations.
Whenever immunity of governments is talked about, a number of immunities, including executive judicial immunity, diplomatic immunity, immunity of heads of state, immunity of state by definition and other types of immunity are taken into account.
First, distinction must be made between two issues:
1. As far as judicial immunity is concerned and documents show, Iran has never attended a hearing in these courts and has never considered American courts as competent in judicial terms.
2. The United States – which means “the state of the United States” – has allowed a domestic court to see into lawsuits against a foreign state and this issue contradicts the United States’ domestic laws. At the same time, it is a violation of the norms of international law as well. This claim is based on the principle of equality of the sovereignty of governments. In other words, the judiciary is part of the sovereignty of government and if a foreign state is to be tried by a domestic judge, it would mean superiority of the sovereignty of the trying country compared to the country that is put to trial. The United States’ domestic laws, according to the Foreign Sovereignty Immunity Act (FSIA) do not allow a case to be heard in domestic courts against a foreign state.
There is of course an exception in this regard. Since 1976 up to the present time, the immunity of foreign states has become more limited. In fact, the impact of Westphalia treaty has been waning in international law. The reason for this change after World War II is that efficiency of governments’ sovereignty is less than efficiency of their control of various economic and trade sectors. After World War II, governments entered economic and trade fields. Governmental companies, especially in Eastern countries like Iran, where economy is strongly state-controlled, gradually entered trade areas and governments used a number of sovereignty guises to cover their economic activities. This trend reduced the limitation considered for responsibility of sovereign states in international law and the United States applied this to its foreign sovereignty law. In fact, from the viewpoint of the United States, if a foreign state is responsible for a trade affair in this country, it cannot take advantage of sovereign immunity that is usually extended to governments. This law also exists in Canada and UK and is correct.
The important point, however, is that the US Supreme Court ruling has been handed down over the killing of US Marines in Beirut and is a totally sovereign affair with no relation to trade and economic issues. According to the United States’ law, this case cannot be taken up by American courts and, in fact, the foreign government – which in this case is Iran – can still avail itself of judicial immunity.
The American law has, however, found a solution for this problem and the US Congress has passed an amendment, known as Flatow Amendment, which allows Washington to ignore the immunity of those state that embark on terrorist acts or harbor terrorists. Therefore, this law practically solves the problem with judicial immunity and paves the way for foreign states to be tried in domestic courts of the United States. In fact, the Flatow Amendment has solved the problem faced by US domestic law about judicial immunity of foreign states.
Now, the question is can a government amend its domestic laws in such a way as to violate rules and principles of international law? Or can a country violate international law on the strength of its domestic law? These questions are posed here because governments are supposed to be immune and not prone to being tried in domestic courts of other countries. This issue would be against the principle of equality of sovereignty. Many discussions have been done in this regard, but violation of international law on the strength of domestic law will not relieve a government of its immunity, because if this was possible, any government could easily pass laws in its parliament to justify all actions that are against international law. The important point is that as soon as a government violates international law through its domestic law, it gives governments at loss a cause for action. Therefore, up to here, the US government has given a cause of action to the damaged side in order to file lawsuit against its act, which defies international law. Now, who is the damaged side? The government of the Islamic Republic of Iran, which is a specific and particular government.
The law known as VTVPA (Victims of Trafficking and Violence Protection Act) was passed in 2000 which is about payment of compensation to victims of such measures. The US Congress also adopted a special act mentioning a special name – the heirs of Deborah Peterson – in 2012 based on which it was allowed to seize Iran’s assets. The implementation of the act started at that time. The court verdict, in the first step, violates international law and the second violation takes place in implementation phase. According to the Congress law, a special law adopted for a special case, which allows for passing judgment in favor of a group of people and to detriment of a special government – none of which are general in nature – paves the way for confiscation of Iran’s assets. But what are Iran’s assets? The answer to this question will be a long one, but the easiest part of Iran’s assets includes bonds. These bonds have not been physically bought on the US soil, but were bought by an agent in Luxembourg and were trusted with the Citibank in New York. Therefore, two clear violations have taken place here: first by the US Congress, which opens a specific case under a specific name, and the other violation is violation of the executive immunity against governments.
The executive branch has issued the US president’s executive order and the Treasury Department has informed the plaintiff to receive compensation. Therefore, what the executive branch has done also amounts to taking part in violation of international law.
The legislature has also adopted a law for a specific case. The law passed by the US Congress in 2012 clearly mentions Iran and Syria, which shows a powerful lobby on the part of the plaintiff. The judge has actually implemented the law correctly. Therefore, our objection is to the law itself.
1. It must be noted that the principle of immunity of states is still in place and creditable because the general rule of international law is judicial immunity and executive immunity of states. Therefore, immunity of foreign governments in domestic courts is still credible and in place.
2. In this specific case, the law has allowed for Iran’s judicial immunity to be breached. The law has also allowed breach of that immunity in the implementation phase.
3. The action taken by the United States gives Iran the right to file a lawsuit as the victim and damaged country, which will lead to legal action on the basis of the US’ responsibility.
*Mohsen Mohebi, Professor of International Law; Head of Iran’s Presidential Center for International Legal Affairs