American Foreign Immunities Act and Iran Manuchehr Tavassoli Naini * Nadia Attaran **

Transcription

1 American Foreign Immunities Act and Iran Manuchehr Tavassoli Naini * Nadia Attaran ** Abstract In 1996, the United States of America rectified the Foreign States Immunities Act (ratified in 1976). According to this law, Americans injured in terrorist attacks anywhere in the world, or their survivors, can sue the state sponsors of terrorist actions in U.S courts. The U.S Department of State determines what countries are state sponsors of terrorism. The Islamic Republic of Iran has been on the U.S. s list of state sponsors of terrorism since 1984, and in recent years, many lawsuits have been filed against Iran in American courts. These courts, contrary to the basics of international law, have so far ruled against Iran in expanse of tens of billions of dollars. So what can Iran do against this law? What has been done so far is that Iran has chosen not to partake in these proceedings so that it would not condone the violation of the sovereignty of other countries. It is now known, that contrary to what is said in the media, the rulings in the United States against Iran have greatly surpassed two billion dollars, and any move by Iran to confront this law has so far had little effect in practice. However, diplomatic talks, bringing the issue forward in the UN General Assembly or in the International Court of Justice, are among the number of politico-legislative moves Iran can attempt to confront this law. Keywords: Foreign Sovereignty Immunities Act; Terrorism; Immunity; Internal courts; Punitive damages. * Associate Professor, University of Isfahan, Tavassoli2000f@yahoo.com ** M.A. in International law, Shahid Ashrafi Esfahani University (Received: 3 July 2016 Accepted: 22 October 2016) Iranian Review of Foreign Affairs, Vol. 7, No. 2, Summer-Fall 2016, pp

2 112 American Foreign Immunities Act and Iran Introduction In the past 37 years Iranian-US relations have been very confrontational. On November 4, 1979, the differences between the two countries surfaced with the U.S embassy takeover and the detainment of 52 embassy personnel. The U.S administration announced a state of national emergency with respect to Iran, by President Carter s orders 10 days after the embassy takeover. All of the properties and finances of the Islamic Republic of Iran and its affiliated organizations and companies were blocked by the United States banks overseas. In April 1980, America cut its ties with Iran, and in same year it attempted to free its hostages in the unsuccessful Operation Eagle Claw (Tabas Operation). Through the mediation of Algeria the Islamic Republic and the U.S, were able to make a number of arrangements and commitments, and signed a number of agreements that came to be known as the Algiers Accords. One of the most important of these arrangements was the formation of the Iran United States Claims Tribunal to end litigation and differences between Iran, the U.S, and their respective citizens. Unfortunately, in 1996, a law in America was ratified that allows the prosecution of foreign states by American courts for financial retribution with regards to financial damages resulting from physical injuries through torture, extrajudicial killing, aircraft sabotage, and hostage taking, or for the financial, material support for such actions by other countries. Of course, the plaintiffs or victims must be U.S citizens at the

3 Iranian Review of Foreign Affairs 113 time of the incident, and the Department of State must have designated said state to be a state sponsor of terrorism. This law was further rectified in From the date of the ratification of this law, many sentences have been delivered against Iran in United States courts. Thus, the U.S by disregarding Iran s legislative sovereignty began to attribute some terrorist actions committed by groups outside Iran to the Iranian state and state figures, rendering judgment and sentencing the Islamic Republic of Iran to pay financial restitution to U.S citizens. So far, of 54 cases against Iran, 40 have resulted in default judgments with $4 billion to be paid in losses, and $6.5 billion to be paid in punitive damages. These sentences resulted in the freezing Iranian assets in US. The U.S Congress requested that the U.S Supreme Court accept that the necessary funds be taken from Iran s frozen assets, and that the Central Bank of Iran request at the court of cassation be rejected. On April 20 th 2016, U.S courts were allowed by the Supreme Court to take nearly $2 billion of the Central Bank of Iran s frozen assets within American soil under the pretense of fines for the Beirut bombing (Tavassoli Naini, 2016, ). One important question that arises here, is whether this law is in conformity with the basics of international law. In this regard, Iran believes that in accordance with the equal sovereignty of states, and the sovereignty of states in international law, that the internal courts of one country must not be allowed to render judgment against other countries. Another question is, since Iran, is in potential risk of losing hundreds of billions of dollars in assets, then what can be done? This paper s thesis was built on the premise that since many sentences have been delivered against Iran in American courts, then Iran can do nothing within American soil; it is suggested that the best approach would be to file a lawsuit with the International Court of Justice. I- State Sovereignty Act In the 1812 Schooner Exchange case, the Supreme Court ruled that American courts had no jurisdiction over foreign warships anchored

4 114 American Foreign Immunities Act and Iran in United States ports, and that the sovereignty of foreign states stems from the principles of equality and independence of governing states, and the matter was considered of importance in preserving friendly relations. In 1976, Congress ratified the Foreign Sovereign Immunities Act (FSIA), giving courts jurisdiction in cases related to the immunity of foreign states. According to this law, foreign states, their institutions, or operatives will remain immune to judicial prosecution, with the exception of cases related to trade, dispossession, violation of the international laws, suspicion of committing a crime, and in counter-suits (1). According to this law, victims of terrorist attacks were not able to file lawsuits against foreign state sponsors of terrorism according to the FSIA until after the terrorist attacks that took place in the 1980s and 1990s like the kidnapping of Joseph J. Ciccipio in Beirut, or the crash of flight Pan Am 103 over Lockerbie, Scotland, as these gave Congress the proper opportunity to amend the law and exempt state sponsors of terrorism from it. From the year 1996 when Congress decided to amend the FSIA law in order to exempt state sponsors of terrorism, many lawsuits were filed under this law. For the cases to be taken into consideration, the foreign states in question must be officially considered by the United States to be state sponsors of terrorism. This law was basically copied into the National Defense Authorization Act of 2008 (NDAA) (2), and almost all elements on state sponsors of terrorism were repeated with one difference: the foreign states in question must have been recognized as state sponsors of terrorism at the time of the attack or of its result. Moreover, the plaintiff or the victim, must either be a citizen of the United States, or a member of its armed forces, an employee or contractor of the United States, and must have begun work at the time. In the list that was officially published in 2014, four countries were named as state sponsors of terrorism: Cuba, Iran, Sudan, and Syria (Stewart, 2013, 81-82). The 2008 law allows American plaintiffs independent lawsuits against so-called state

5 Iranian Review of Foreign Affairs 115 sponsors of terrorisms to ask for punitive damages against the state in question, and also facilitates the carrying out of the sentence (Kadkhodai, 1389, 15). In 2016, Congress passed the Justice Against Sponsors of Terrorism Act (JASTA). This law allows federal courts to file lawsuits for damages against foreign states caused physical or financial harm to an individual, or caused the death of an individual on American soil. The actions in question include terrorist actions or suspicion of crime anywhere by an official, an employee, or agent of that country. This law was in fact ratified for 9/11 survivors (3). Even though the US administration, in a hypocritical policy, decided to veto this law, the insistence of Congress on this law may leave the US administration with some challenges to face before the international community. II- Domestic Courts In different states, even different precincts, each branches of American state courts may have a distinctive understandings of the definition of active terrorism or supporting terrorist actions, which leads to different legal opinions on the matter. For example, the Chicago Federal court did not allow Israeli plaintiffs to receive Iranian Achaemenid tablets instead of a fine because the judge presiding over the lawsuit considered these tablets to be in the University of Chicago s care for archeological studies, and since this does not constitute as use of the tablets for profit then they cannot be confiscated. The judge of the 7 th circuit appeals court in the state of Illinois overruled the verdict of the lower court, which had ruled that the confiscation and selling of Iranian artifacts is permissible in order to pay the fines for American victims (4). However, throughout these past few years, a number of developments have taken place including freezing Iran s financial belongings by the United States. The 2002 Terrorism Risk Insurance Act (TRIA) was put into action with the signature of George W. Bush then the US President. This law allowed American courts to disregard whether the frozen possessions and

6 116 American Foreign Immunities Act and Iran finances of the accused state were relevant to the subject of the charge, and made these finances available for use in the fines. It was after the ratification of these laws that the US Department of Treasury, with the permission of Congress, was free to use Iran s frozen assets in the US to execute the rulings. Following, the paper will discuss the most important cases, whose rulings were executed in the past years in the US, or were close to being carried out: The Alavi Foundation (Bonyad-e Alavi):On December 20 th, 2008, the American Federal Police arrested the head of the Alavi Foundation on charges of linkage to a financial suit against the National Bank of Iran (Bank-e Melli). He was charged of attempting to destroy evidence that showed that the foundation depositing money collected from its rent revenue in the National Bank of Iran, by way of ASA, an Iranian company. The prosecution included the families and victims of the 1983 Marine barracks bombing in Beirut, and the bombing of the Khubar towers in Saudi Arabia (5). However, the foundation s lawyers proved that the Alavi Foundation is an independent non-profit foundation registered in the state of New York, and that it follows the laws and regulations of that state. The Alavi Foundation is not associated with any country, and the members of its board of directors are chosen through voting and according to the foundation s charter (6). This case was made in the Flatow vs. Alavi Foundation in Virginia in 2000, wherein the court wished to designate whether the Alavi foundation was a stateassociated foundation or not. The measure of interference by Iranian officials the daily activities of the foundation was what the verdict was based on (7). Lawsuit against the employees of the American embassy in Iran: In late 2000, a lawsuit was registered by 52 of the hostages from the American embassy in Iran and their families against Iran. In October 2001, a few days before the hearing, the US administration interfered in the legislative procedure and refuted the suit: 1. At the time the embassy staff were taken hostage, Iran was

7 Iranian Review of Foreign Affairs not part of the list of state sponsors of terrorism, and it s because of this exception that state sponsors of terrorism cannot be charged due to the immunity of foreign states. 2. The 1981 Algiers Accords between Iran and the United States has very clear provisions on this matter. The 2008 amendment, called the NDAA, was Congress s last attempt to give the former staff of the American embassy some legal right. The prosecution of the Roader case (American embassy staff) again tried to file another lawsuit against the Islamic Republic of Iran, but the judge refused to hold a hearing for the charges. According to the judge in charge of the suit, the 2008 law did not have the requirements to annul the Algiers accords (Elsea, 2008). In the end the US administration decided to pay the families from the fine against the French Paribas Bank to avoid legal obstacles. The Case of Iran Central Bank: In 2007, the American federal court ruled that $2.65 billion are to be paid in damages to the families of the victims of the Beirut bombing, among other bombings. The ruling was confirmed in 2014, and it was decided that under the pretense of paying for the fine, that close to $2 billion would be taken from the frozen assets of Iran s central bank. After the preliminary ruling that the money should be taken from Iran s assets, the Central Bank of Iran asked for an appeal based on the 1955 Treaty of Amity. However, on the other hand, in 2012 Congress ratified a law entitled Iran Threat Reduction and Syria Human Rights Act (8) which allowed money to be taken from the account of the Central Bank of Iran in order to be pay the fines to the families of the incidents in question. The Central Bank presented the case in court in 2014 that based on the separation of powers, Congress had no right to ratify a law on a matter currently being disputed in court. It also made the case that the United States, through its behavior, such as its disregard for the independence of Iranian institutions such as the Central Bank, its unjust and arbitrary behavior towards these institutions and their assets and rights, and its disregard of the immunity of the state of Iran 117

8 118 American Foreign Immunities Act and Iran and its Central Bank, is thereby violating of the clauses of the Amity treaty (9). In the end, the US Supreme Court rendered its final verdict in May of 2016, refuting the Central Bank s court of cassation request, and claimed that Congress did not act contrary to the separation of powers stated in the constitution (10). III- Moves by Iran The Law of the Legal Jurisdiction of the Islamic Republic of Iran: In a similar move, Iran ratified the Legal Jurisdiction of the Islamic Republic with Regards to Civil Suits against Foreign States. The Islamic Republic ratified this law in 1999 so that Iranians would have the right to file lawsuits against foreign countries that violate the political immunity of Iran; the law was later amended in the year In 2012 the law was further changed and ratified by parliament. The related by-law, as presented by the ministries of justice, foreign affairs, and intelligence, was ratified by the cabinet. According to this law, a number of cases were made by Iranian prosecutors against the US, which were presented before Iranian courts (11). One of the lawsuits filed against the United States took place in the Tehran Public Court s 3 rd precinct in 2003, where the prosecution claimed that during the coup d état of August 8 th, 1953, under US intervention and material support, he was arrested and tortured, and that he still suffers from affliction, and requested the court for compensation of financial and psychological damages he has went through. The court s verdict was that the US should pay $1,433,577,211 in material restitution and $2 billion in punitive damages (Tivay, 2005). However, the most controversial verdict so far rendered against the US in Iranian courts was made in favor of a merchant who was captured by undercover US agents in the Bahamas for his violation of US sanctions, and filed a lawsuit against the United States for kidnapping, arbitrary imprisonment, assault, and injury. The Tehran Public Court fined the US half a billion dollars. Later, the merchant

9 Iranian Review of Foreign Affairs was successful in receiving a verdict of seizing the American embassy s building in lieu of payment. (12) This verdict however has not been executed as of yet as seizing an embassy building is in violation of international law. There were only several cases filed against the US in Iranian courts in the years following the ratification of the law. The number of lawsuits filed in Iran is not enough to face the onslaught of verdicts rendered against Iran in the United States, with some having even arrived to the stage of execution. Secondly, these very verdicts rendered against the United States have not been executed yet, as the US does not have any assets in Iran except for the embassy building in Tehran. This law is therefore closer to being a political move than a legal one. The Law on the Politico-Legal Prosecution of the United States and Britain for Intervention in the 1953 Coup d Etat: A similar law was passed in 2013 in the Islamic Shura Council (Iranian Parliament) under the name Politico-Legal Prosecution of the United States and Britain s for their Role and Intervention in the Coup D Etat of August 8 th 1953 against the National Government of Iran, the first article of which states: In light of the revelation of the CIA and MI6 role in the 1953 coup d état against Iran, which led to overthrowing the national government of Iran and causing heavy damages to Iran, the Islamic Republic of Iran formed a team that will assess the material and moral damages inflicted upon the Iranian people. The team is to report its findings to the Islamic Shura Council every three months. As this law was ratified years ago and there are no tangible results yet, it is unlikely that many prosecutors would come forward to submit a lawsuit in accordance with this law. The 2016 Plan to Confront Foreign State and Institutional Sponsors of Terrorism: On January 12 th 2016, another plan was presented before the Islamic Shura Council under the name Confronting Foreign State, Institutional, and International Sponsors of Terrorism, whose 6 th 119

10 120 American Foreign Immunities Act and Iran article reads that Iran is charged with supporting foreign organizations and foundations, alleged terrorist groups and listed them so as to take the necessary punitive and disciplinary measures against them according to clause B, which include financial sanctions to seizing their assets in Iran. In article 7, it requests that the ministry of foreign affairs present reports of the CIA s terrorist actions to the parliament s Committee for Foreign Policy and National Security, and also mentions the financial aid the US has provided ISIS. Most of these laws and plans are not definite in their confrontational stance towards the US, and are of a more symbolic nature. Prosecution in the Iran United States Claims Tribunal: On July 2 nd 2014, the Iran United States Claims Tribunal, in cases A-15 (four) and A-24, rendered its 602 nd verdict. This case was related to Iran s protests to US liability and its violation of its commitments in accordance with the Algiers accord, which mandated that the US put an end to American lawsuits against Iran in United States courts. After looking at the arguments of both parties and the available documents relevant to this case, the tribunal rendered its final verdict on July 2 nd 2014, considering the US to be in violation of its own commitments according to the Algiers accords, and should therefore pay Iran for inflicted damages. Near the end of the 114-page verdict, where it is stated that the US was in violation of its commitment to end lawsuits against Iran, it is written that: According to calculations relevant to the current verdict, the US is to pay the Iranian prosecution $842,468.14, in addition to normal interest on loans in the United States in lieu of all the years the amount has not been paid (13). Although the amount specified by the verdict is not high, the verdict itself can serve as a reliable document in investigating Iran vs. US cases, especially in investigating matters of legislative nature. According to the agreements of the both sides in the Algiers accords, any cases placed before the tribunal due to loan, an agreement, property seizure, or any

11 Iranian Review of Foreign Affairs 121 action that can influence property. Moreover, the problem must have arisen before the Algiers accords, and the tribunal s verdicts are to be directly executed, and no one can refute the verdict. In accordance with article B of the accords, the US is to end all of its citizens attempts at legal action in American courts (legal attempts that could fall within the tribunal s jurisdiction). America s commitment to end legal action against Iran was made on July 19 th 1981, 6 months after the signing of the accords. This verdict which is in favor of Iran constitutes a very good step in confronting the US government s violation of its agreement, but it should be noted that it only refers to cases against Iran before the Algiers accords and not cases after the 1996 law, nor cases referring to state sponsors of terrorism. The fact is that cases such as the seizing of Iranian assets in the US cannot be submitted before the Iran United States Claims Tribunal IV- Suitable Strategy Diplomatic Negotiations: Diplomatic negotiations are among the most popular peaceful methods of resolving international differences, which the International Court of Justice describes as a friendly and direct approach that is internationally accepted. (14) The Court also adds that there is no need to stress the fundamental characteristics of this method of conflict resolution. In any case, it is axiomatic that negotiations are the first step before making recourse to other peaceful methods of conflict resolution, and before making recourse to legal action to resolve a conflict; the matter must first be posed in the setting of a diplomatic negotiation. The adaptability and effectiveness of diplomatic negotiations makes them a suitable and adaptable strategy for conflict resolution between Iran and the United States as far as the FSIA goes. Some scholars believe that although negotiations can sometimes be unfruitful and ineffective in resolving certain differences, they have in actuality resolved many conflicts as well (Musa Zadeh, 2009, 361, 362)

12 122 American Foreign Immunities Act and Iran Partaking in the United States Domestic Courts: Although partaking in American courts does not seem to be a suitable approach to defend Iran s rights, some countries have had past experiences doing so. In the past, other countries have also been accused of sponsoring terrorism and were found guilty in American courts, but were able to highlight some problems with the verdicts. For example, in 2010, Syria highlighted some fundamental problems that plague the FSIA: 1. This law violated the second article of the UN Charter. 2. It violated Syria s right to a fair trial. 3. It will lead to unjust political repercussions. Syria also highlighted the fact that this law goes against the separation of powers in the US constitution, because the final verdict, as per the first clause of article 1605 can be annulled by either Congress or the president. (Habibi Mojannadeh, 1393) Another relevant matter is that most rulings against Iran made in America were final, and Iran can do nothing about them. The important question is: does partaking in American courts mean placing the right for legal immunity under question? Considering many cases where Iran was represented before American legal authorities, such as attempts to lift the freezing of Iran s assets, or the case of the Achaemenid tablets, Iran s presence in such instances was not an acceptance of the jurisdiction of US domestic courts, but was rather forced to prevent the seizure of the Central Bank s assets and to prevent the seizure of the Achaemenid tablets, thanks to which the verdict was in favor of Iran. In a 2012 verdict between Germany and Italy at the International Court of Justice, Italy stated as an argument, that the FSIA law s amendments mean that in case a state sponsor of terrorism (according to the USA s list) commit acts such as torture and extrajudicial killings, then that country s immunity will be disregarded. The Court stated in its answer that traditional international law does not attribute a country s deserving immunity to the severity of the allegedly committed act, and reminded that the

13 Iranian Review of Foreign Affairs amended 1996 FSIA law has no equal nor likeness in all of the world (15). The ICJ s answer could be an important document in reflecting international views on the matter of immunity and its exceptions. In this case we see that although Germany violated international law, the ICJ recognized its immunity because of the traditional regard for the immunity of states, and ruled in favor of preserving Germany s immunity. This verdict by the ICJ is solid evidence in favor of the immunity of Iran in American courts. Citing the Lack of Jurisdiction by Domestic Courts in Punitive Damages: Punitive damages are a kind of damage added to compensations that are made in court rulings in cases where injurious behavior is shown to have taken place, and must be paid to the prosecution. Although in international law, a ruling calling for punitive damage may be made in cases of extreme violations of international order as a useful tool for ensuring that justice is made, but that domestic courts would have the jurisdiction to make sentences involving punitive damage in the civil matters of foreign countries to step out of bounds; even if we were to accept a notion such as the criminal responsibility of a state, the authority with the jurisdiction to issue punitive damages is not a country s domestic courts, but international courts. This is why the actions committed by United States courts in cases such as the Flatow, Waltz, and the Acosta cases in ruling for punitive damages against foreign countries do not have a legal basis in international law (Abdullahi, 2014). Regrettably, a number of rulings for punitive damages against Iran have so far been made, and this is one of the main weaknesses of the punitive damages mechanism, whose amount is determined by the judge s will (Elsea, 2008, Hunt, 2013, 444). Citing the Theory of Responsibility: One of the possible defenses in these cases is that the state under question can prove that a certain action or inaction was not associated with its representatives, officials, or governmental institutions. This defense does not work in 123

14 124 American Foreign Immunities Act and Iran cases related to the actions of Palestinian Jihadi groups because Iran s official statements with regards to Palestinian and Lebanese Jihadi groups are an admittance of support. In the framework of the law exempting terrorism, mere support is considered in the US penal code as to be associated with that group. However, with regards to other groups that did not enjoy Iran s support such as Al-Qaeda, this defense is applicable, because not only Iran s official policy does not support the group, on the contarary, as Iran is at odds with it, the association of the actions of Al-Qaeda to Iran in the 9/11 case is invalid. Proving that the link exists falls upon the prosecution, and in civil suits the judge is free not to admit evidence in favor or against the defendant. However, if the defense cannot challenge the arguments or evidence provided by the prosecution, then the judge can accept the prosecution s evidence. At the very least, in cases wherein Iran is associated with Al-Qaeda, it can challenge the prosecution s evidence and make its voice heard. (Kadkhodai, 2010) Bringing the Matter before the UN General Assembly: The 14 th article of the United Nations states that the General Assembly can provide a peaceful solution for any situation that can come about if it should cause a disturbance in friendly international relation. It argues that due to violation of the goals and basics of the UN, as discussed in the paper, Iran can bring the matter of the US s violation of international law before the UN General Assembly. Whatever the General Assembly decides is not considered to be binding, however it would prove to be a great achievement for Iran to be able to shed light on the matters before the general assembly, and would benefit Iran politically. However, taking into account the US allies in the General Assembly, it would be very difficult for Iran to secure a majority vote, even if the country can secure the votes of other countries such as Syria, which are on the US s list for state sponsors of terrorism. The letter of protest sent by Minister of Foreign Affairs, Dr.

15 Iranian Review of Foreign Affairs Zarif, to the secretary general of the UN, also protested America s action s in the last few years: the fact that it allowed and also supported opening cases against foreign states, like the Islamic Republic of Iran, continuously challenging international order and international law, placing them at risk. By trying Iran in absentia, it has allowed itself free reign over the property of the Iranian people. Zarif asked the secretary general to publish this letter before the UN General Assembly under the title The rule of law on the national and international levels (16), and it was also distributed before the UN Security Council. By doing so, Iran can ask the General Assembly, as one of the pillars of the UN, to question the ICJ s opinion on the matter and put it into action. Bringing the Matter before the International Court of Justice: The Treaty of Amity between Iran and the United States was signed in In clause 1 of article 4, the treaty states that: Each High Contracting Party shall at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws. The second clause of article 4 also refers to the protection of the properties and companies of the nationals of each of the contracting parties; in cases such as the Alavi (and others) made in the United States against Iran and other countries, the US is in violation of the clause. Looking at the 2 nd clause of Article 21, this treaty refers both parties in case any differences should arise in interpreting or executing the treaty to the International Court of Justice, which means that Iran can file a lawsuit with the ICJ to resolve its differences with the US. The clear phrasing of the Treaty of Amity, and the 1969 Vienna Convention on the Law of Treaties, the Iran United States Treaty of 125

16 126 American Foreign Immunities Act and Iran Amity must be followed the legal rights of both parties; the procedure followed by the ICJ in cases of hostage-taking, oil platforms, and the arbitration of Iran and the United States reveals as much. In fact, the Treaty of Amity, as any legal document, is binding until it dies, and governs the legal rights of both parties. Its termination, at first sight, in light of the treaty s text and its clauses, is something doable. The second and third clauses of article 23 state that: 2) The present Treaty shall enter into force one month after the day of exchange of-ratifications. It shall remain in force for ten years and shall continue in force thereafter until terminated as provided herein. 3) Either High Contracting Party may, by giving one year's written notice to the other High Contracting Party, terminate the present Treaty at the end of the initial ten-year period or at any time thereafter. Seeing as none of the parties have given the other notice and since none of the two parties have referenced fundamental changes to the time of signing the treaty (Rebus Sic Stantibus) then the treaty is still binding to both parties. This is what happened in the Sedco Inc. case (1987) where the Iran United States Claims Tribunal revealed that the Treaty of Amity (1955) is still like an applicable law, and is binding and can be used by both parties. In addition, in many of the cases, the tribunal made recourse to many articles of the Treaty of Amity in regulating the legal relations of the two countries, and so the treaty is considered to be a valid, binding, and applicable law in relations between both countries. (Shahbazi, 2012) Taking the above into consideration, in June 2016, Iran decided to take its lawsuit against the US to the ICJ. During the suit, the Islamic Republic of Iran made the case that the actions of the USgovernment and courts are in violation of the Treaty of Amity and as such go against the standards of international law. In accordance

17 Iranian Review of Foreign Affairs 127 with this case, Iran announced that the US has on many occasions violated its own international commitments, such as the violation of the immunity of the Central Bank, and the violation of the right to one s own defense as stated in clauses 1 and 2 of article 3 of the Treaty of Amity: the violation of the independence of the Juridical person of companies, organizations, and institutions, associated with the Iranian state, namely the Central Bank, arbitrary, irrational behavior vis à vis Iranian companies and independent public institutions such as the Central Bank, and disregard of their rights, acquired rights, contractual rights, and the seizing of their properties in violation of article 4 (1 & 2) of the above-mentioned treaty, limiting payment, money transfer, and free market between the two countries, contrary to articles 7(1) and 10 (1) of the treaty, the violation of the immunity of the Iranian state, and independent public companies and institution, namely the Central Bank, contrary to articles 3(1) and 11(4) of the treaty, and against international law as well. (17) Conclusion There is no doubt that the Foreign Sovereign Immunities Act has brought and will still bring many financial consequences for Iran. Currently many lawsuits against Iran are raised in United States courts that will surely sentence Iran to pay billions of dollars. Another danger Iran faces is that other countries such as Canada are following the US s steps, which endangers Iran s assets in other countries. It is possible that other countries would do the same, changing this legal novelty into a legal norm. This law, as discussed, contradicts the very basics of international law. The best way for Iran to receive its rights is, first and foremost, through diplomatic negotiations, and informing the US of its international responsibility with regards to the rulings of the US s domestic courts. The presence of Iran s representatives in the cases raised against Iran in United States courts is not a fruitful step in

18 128 American Foreign Immunities Act and Iran securing our rights and national interests. The only positive aspect to such an approach is that it can shed light on the violation of the immunity of states and of international law in US domestic courts. Despite the existence of different opinions about state immunity, the ICJ s (being an international reference) 2012 ruling on the matter in Germany vs. Italy shows that the actions of the United States cannot create a new tradition in this context. The issue being raised in the United States with regards to Iran s financial support for some groups is not something that can be conclusively proven, namely the matter of its alleged support of groups such as Al-Qaeda whom Iran had denounced on numerous occasions. The sentencing of one country with punitive damages by another country, in light of the equal sovereignty of states, cannot be accepted in international law. All of these matters reveal that the American government, by ratifying this law, has violated the standards of international law and this can be a winning ticket for Iran s defense before the international community. The existence of the Treaty of Amity between Iran and the United States whose validity (in light of the circumstances of its signing) is unquestionable, and the actions by the United States and Iran in the post-revolutionary years testify to its validity. The acceptance of the ICJ s jurisdiction in this treaty by the two countries can prove to be a powerful document in Iran s case against the United States in the ICJ. In light of the ICJ s opinion on the above-stated suit, and the relative unfruitfulness of other methods, it appears that the best option to secure Iran s right is to present its case before the International Court of Justice.

19 Iranian Review of Foreign Affairs 129 Notes: 1. UNITED STATES: FOREIGN SOVEREIGN IMMUNITIES ACT OF (a), 1607, available at: 2. National Defense Authorization Act for Fiscal Year 2008, p1001 available at 3. S th Congress ( ) Justice Against Sponsors of Terrorism Act Avaliable at: 4. ISLAMIC REPUBLIC OF IRAN v FIELD MUSEUM OF NATURAL HISTORY, et al Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C937 ARGUED APRIL 23, Flatow v Alavi foundation 225 F.3d 653 (4th Cir.(Md.) July 24, 2000) available at 8. Iran Threat Reduction and Syria Human Rights Act of 2012 available at 9. United States Court of Appeals,Second Circuit.Deborah D. PETERSON, et al., Plaintiffs Appellees, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants Appellants.*No CV. Decided: July 09, 2014 Avaliable at: 2nd-circuit/ html 10. SUPREME COURT OF THE UNITED STATES No BANK MARKAZI, AKA THE CENTRAL BANK OF IRAN, PETITIONER v. DEBORAH PETERSON, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIt April 20, In the 55 th precinct of the Shahid Beheshti Judicial Complex in Tehran, Captain Hooshang Shahbazi, in official capacity, made a complaint against the US because of its endangering flights by way of its sanctions against Iranian airplanes, and considered the very structure of these sanctions to be a crime against humanity. A portion of his complaint was also related to the plaintiff s personal harm as a result of these sanctions

20 130 American Foreign Immunities Act and Iran Refer to the Court s verdict on the North Sea continental shelf case, 1969, p. 480, clause ICJ judgment, op cit, para The declaration of the high-level meeting of the General Assembly s session on the rule of law on the national and international levels during the 68 th session of the UN General Assembly was ratified on September 9 th

21 Iranian Review of Foreign Affairs 131 References A) Persian Abbād Kadkhodā I, Ali Dā ī, 2010, The Negation of State Immunity in American Courts, Ḥuqūqī bayn-ul-melalī Magazine. Ārāmesh Shahbāzī, 2012, The Validity of the Treaty of Amity, 1955, and the Possibility of Using it as a Reference in United States Iran Relations, Ḥuqūqī bayn-al-melalī Magazine of the Presidency Center for Law, Vol. 28, No. 44. Bahman Tājānī Shahrām, 1391, the Legal Comportment of US Courts with Regards to the Immunity of Foreign States, their Properties, and its Conformity with International Law: Studying the Lawsuits against the State and Officials of the Islamic Republic of Iran, Payam Nour University Faculty of Theology and Islamic Education, PhD Thesis. Ebrāhīm Taghī Zādeh, Ali Khusravī Fārsānī, 2012, the Nature and Effects of Punitive Damages in Common Law, Dānesh-e Huqūq-e Madanī Magazine, 1 st ed. No. 1. Muhammad Ḥabībī Mujannadeh, Sayyed Alī Huseynī Āzād, Elnāz Raḥīm Khū ī, 2014, Criticizing the Actions of the United States of America in Violating the Immunity of States in the view of International Law in the 2012 verdict by the International Criminal Court, Ḥuqūqī bayn-u-l Melalī Magazine, No. 51. Muhammad Tīvāy, 2005, Against the Government of the United States, Chīstā Magazine, No Muḥsen Abdullāhī, 2005, Punitive Damages in International Law, Published by Khadamāt-e Huqūqī-ye bayn-ul-melalī-ye Jumhūrī-ye Eslāmī-ye Iran, No. 30. Reḍā Mūsa Zādeh, 2009, the Laws of International Organizations, Mīzān Publishing, 14 th ed. B) English Eisea, Jennifer, 2008, CRS Report for Congress Suits against Terrorist States by Victims of Terrorism, Congressional Research Service. Hunt, Sivonnia, 2013, the Foreign Sovereign Immunities Act the Roadblocks to Recovery, Seventh Circuit Review. Stewart, David, 2013, the Foreign Sovereign Immunities Act a Guide for Judges, Federal

22 132 American Foreign Immunities Act and Iran Judicial Center International Litigation Guide. C) French Tavassoli Naini Manuchehr, 2016, Immunité Juridictionnelle des Etats, Éditions Universitaires Européennes.