The Iranian Democracy Fund and the Algiers Accords

The Washington Post is reporting that the United States is prepared to spend $75 million to promote democracy in Iran. According to the report, “the United States hopes to capitalize on the ‘disturbing trend of Iranian diplomacy’ since Ahmadinejad’s election, including the refusal to continue negotiations on the nuclear program…. [and that] the administration would press countries that have ties to ‘begin to think what they can do to push back against what has been a radical series of proposals out of the government of Iran.’ The officials sidestepped questions about whether the administration is seeking ‘regime change.'”

This is very welcome news. There is one small caveat. It may violate our international treaty obligations. There is a little-known provision in the Algiers Accords, signed by the United States and Iran on the closing days of the Iranian hostage crisis, that stipulates that “The United States pledges that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs.”

Having worked as a law clerk with one of the American judges at the Iran-U.S. Claims Tribunal, I came to know the Algiers Accords quite well. Generally, this agreement works to the United States’ advantage, ensuring that our citizens have adequate judicial recourse before an international tribunal for Iranian breaches of contracts and unlawful expropriations arising out of the revolution. But not always.

This “internal affairs” provision is rarely litigated before the Tribunal. (There currently is pending before the Tribunal a claim that U.S. sanctions against Iran violates this “internal affairs” provision.) The provision was a condition the Iranians imposed on President Carter to avoid in the future what they perceived to be past meddling by the United States. In the final days of the Carter Administration in January 1981, the United States reluctantly conceded to this international obligation, hoping that it would never become an issue. I have heard one intimately knowledgeable about the drafting of the Algiers Accord concede that the provision was a non-negotiable requirement of Iran, and one that was most unwelcome to U.S. negotiators. It is a discredit to Carter that he ever acquiesced to such an open-ended provision, but there it is: a treaty obligation to never politically or militarily interfere in the internal affairs of Iran.

If the Iranian democracy fund goes forward (or if we respond militarily to a nuclear Iran), Iran could file a claim before the Iran-United States Claims Tribunal alleging that the action is a violation of the Algiers Accords. (Never mind that the Iranians have regularly violated the Algiers Accords, including the obligation to provide adequate funding to a security account reserved for American claimants appearing before the Tribunal). I doubt that the Tribunal would ultimately conclude that there was a violation, but it is not outside the realm of possibility.

At a minimum, the treaty obligation will somewhat constrain the traditional freedom the United States otherwise has in conducting international relations.