21 Jun Do the Algiers Accords Preclude ATS Suits re Iran? Question for Roger and Others
Roger, I was thinking about your post below on the Iran elections, and your comment on the 1981 Algiers Accords, which provide 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.” Failure to comply, you note in your post, could result in a claim filed by Iran against the United States before the Iran-United States Claims Tribunal.
My question is, do the Algiers Accords thereby preclude ATS suits insofar as they implicate something to do with Iran’s internal affairs? Or, alternatively, might an ATS suit be entertained even though it might also result in a claim before the Claims Tribunal? Is the status of the Algiers Accords something that extinguishes private rights under the ATS? It is not hard to think of things on-going now in Iran that could conceivably generate ATS claims, even leaving aside the past, on the standards of other situations that have generated ATS claims in US courts.
And more generally, are there any other situations where a treaty or other enactment has altered or extinguished ATS litigation rights?
I am pretty sure these questions have been answered before somewhere, but I thought you or someone might have quick answers, and perhaps it might be of broader interest to OJ readers. Thanks to anyone who can shed light on the legal status of all this.
I would also be interested in the learning the name of the case regarding the U.S sanctions against Iran mentioned in the “The Iranian Democracy Fund and the Algiers Accords” post.
Ken,
I’m sure that Iran has made arguments that ATS litigation interferes with their internal affairs, but I’m pretty sure that Iran has not filed a case before the Iran-United States Claims Tribunal formally challenging these lawsuits. Let me ask my friends there and get back to you.
It is worth noting that for international law purposes the judiciary does constitute state action and therefore we should not assume that the action of judges could not give rise to a treaty violation. There are numerous arbitration cases addressing this point, including notably Loewen v. United States.
But I rather doubt that the Iran-United States Claims Tribunal would ever rule that this particular treaty obligation could be violated based on judicial conduct in ATS litigation.
Roger
This doesn’t answer your direct question but sheds interesting light. Seems a conflict between ATS litigation and the Algiers Accords would fall under the Supreme Court’s decision in Garamendi, which held that a state law was preempted by an executive agreement, covering a similar subject matter, negotiated by the President (Clinton) with foreign countries. Language in the decision about the President’s “calibration” of foreign policy measures and his oversight of U.S. foreign affairs would provide strong ground for arguing that ATS claims against Iran (or Iranian officials) are preempted by the Algiers Accords.
I find it odd that we might believe the Algiers Accords necessary to the question. Regarding the issue of non-interference, the Accords merely re-state what is already a truism under the principles of international law. True?
John,
I don’t think so. The key difference is that Iran has an actionable claim in a forum with jurisdiction over the United States if there is a violation of this obligation. I don’t think there is another corollary.
Roger Alford
Thanks Roger.
My apologies for not being clearer. I agree that the Accords provide a unique potential remedy to Iran. I only meant to point out that non-interference is a long-standing customary norm (and one could say treaty norm as well – with the UN Charter’s recognition of sovereign equality) in international law. This is true at least absent widespread and systemic violence potentially justifying humanitarian intervention or CH VII Security Council action. Therefore, in my humble opinion, the non-interference provision of the Accords is not essential to Kenneth’s first and third questions. If the non-interference element of the Accords has any potential effect that he raises, it is not clear to me why the other sources of that norm would not have the same potential effect on an ATS claim. It is hard to believe a court would find a non-interference agreement to be self-executing — at the very least because such a provision seems clearly addressed to the political branches.