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US Supreme Court Violates International Law – OpEd

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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.

Conclusion

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

Source: Iranian Diplomacy (IRD)
http://www.irdiplomacy.ir/
Translated By: Iran Review.Org

Iran Review

Iran Review is a Tehran-based site that is independent, non-governmental and non-partisan and representing scientific and professional approaches towards Iran’s political, economic, social, religious, and cultural affairs, its foreign policy, and regional and international issues within the framework of analysis and articles.

5 thoughts on “US Supreme Court Violates International Law – OpEd

  • May 12, 2016 at 11:03 am
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    Great legal analysis. It was obvious from the start that the US wants to keep the Iranian billions. This lawsuit by victims is only a pretext to larger thefts to come. Was it proven at all that Iran killed those soldiers in Beirut?

    But even if Iran is entirely in its right, it is unlikely that any legal action for damages from this illegal lawsuit would ever result. In the US, the US is always right and any foreign country is always wrong. Especially Iran, and after it clearly won its freedom from sanctions with very professional and foresightful negotiations. Whenever the US loses a political gamble, it will try to demonize and victimize the winning party. Iran would have to have a cause to file a complaint via UN in order to get justice.

    Reply
  • May 12, 2016 at 4:03 pm
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    International law does not provide a shield from crimes committed within the jurisdiction of a sovereign nation’s borders. The author totally neglects this fact. The Iranian government is liable for acts committed within the United States or any other sovereign nation.
    The author writes as if borders and sovereign nations do not exist.

    Reply
  • May 12, 2016 at 8:13 pm
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    Iran could have had its day in court in the United States to challenge the constitutionality of the laws used by my family and others to hold Iran financially responsible for the murders of our children and loved ones.
    Instead, rather than fight with us in open court, Iran ignored the lawsuits and had whopping judgments entered against it.
    Of course, Iran could not come into a US court and defend itself on a factual basis because it knew that we had the evidence that proved Iran funded terror groups such as Islamic Jihad; the group that murdered my daughter in 1995.
    Essays such as this one do nothing to nullify the underlying premise of US law – that foreign states that murder or support those who murder American citizens will be held accountable.

    Reply
  • May 18, 2016 at 4:00 pm
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    A few problems with your analysis:

    1. The Supreme Court is not subject to international law and is not required to respect international law, but is only subject to the Constitution and laws of the United States.

    2. Treaties do not take precedence over domestic laws and, thus, international law is subject to US domestic law (see the Head Money Cases) which can be modified whenever and however congress desires, provided they do not conflict with the Constitution of the United States.

    3. Congress made the political decision to nullify this aspect of international law when it passed the Flatow Amendment, in doing so it exercised the sovereign right of the United States to abrogate treaties at will. The Supreme Court merely did their constitutional duty in enforcing this political decision.

    4. The United States is not a party to the Treaty of Westphalia; for historical, geographical, and cultural reasons we never really have and likely never will embrace this model of relations between sovereigns. Rather we retain the right to intervene in foreign states to advance both our interests and are morally obliged to intervene to enforce our values. This principle, derived from the sovereign right to declare war and make peace, was established in our conflict with the Indians, reaffirmed in the Mexican-American War, the Spanish-American War, and the numerous interventions in Latin America in the early 20th centuries, and codified during the Cold War.

    I do agree that this conduct has given ’cause of action’ to the aggrieved party, that is to say Iran. The traditional term for this ’cause of action’ is ‘casus belli.’ Iran has not only the right to declare war upon the United States in retaliation (every sovereignty enjoys the unrestricted and unfettered right to declare war and make peace), but also a reasonable justification to do so. So the ball is in Iran’s court now, do they make war with the United States or do they accept this violation of their Sovereign prerogatives by the United States?

    Reply
  • May 19, 2016 at 10:28 am
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    Article VI, paragraph 2 stipulates: “…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution [of any State] or Laws of any State to the Contrary notwithstanding,” which means under the Originalist Theory of Law the US government has no obligation to respect any treaty at any time that is not to it’s advantage. If you are stupid enough to sign a treaty with any expectation of compliance, it is proof you deserve what you get.
    Look at the Trail of Broken Treaties with Native Americans, and the two hundred years at war, of which included invasions of Haiti, Mexico, Guatemala, Vietnam, Laos, Cambodia, Afghanistan, Greece, Iraq, Libya, Liberia, Iran, Russia, Pakistan, Yemen, Lebanon, Nicaragua, China, etc., most of which there were treaties that forbade invasions.

    Reply

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