Is it Time to End the US-Iran Claims Tribunal?

by Duncan Hollis

Yes, says John Bellinger in Thursday’s Washington Post:

While it has done important work, the tribunal has largely outlived its utility for both sides — and the Obama administration could face a significant international legal challenge if the tribunal orders the United States to make large monetary payments to the Iranian government. . . .

When it was set up under the Algiers Accords, the tribunal was expected to resolve all outstanding claims in a few years. It has labored for nearly three decades, conducting more than 300 hearings and issuing more than 20,000 orders. The tribunal has made 600 awards resolving claims by nationals of the two countries, or by one government against the other, including more than $2.5 billion in awards to U.S. nationals or the U.S. government and roughly $1 billion to the Iranian government. It is still working on some of the most complicated cases: disputes relating to contracts for sales and services of military equipment produced by U.S. companies for Iran before 1979. . . .

In July, the tribunal dismissed, 5 to 4, Iran’s claim for $2.2 billion in compensation for military equipment that had been ordered by Shah Mohammad Reza Pahlavi but that the U.S. government had refused to allow U.S. companies to deliver after the hostage crisis. Had the tribunal ordered Washington to pay Iran even a fraction of what it had sought, the administration would have been forced to choose between complying with U.S. obligations under the Algiers Accords, and thus paying millions of dollars (or more) to a government that has been supporting terrorism and secretly building uranium enrichment facilities, or ignoring an international court.

But the Obama administration still faces a threat. The tribunal left the door open for Iran to relitigate aspects of this dispute, and Tehran still has claims worth billions of dollars in other cases. . . .

The tentative deal announced Wednesday is expected to buy time to establish a diplomatic solution to the impasse over Iran’s nuclear ambitions. Rather than continuing to hope for the best, the Obama administration should add the future of the tribunal and remaining bilateral claims to the list of issues to be discussed with Iran. U.S. negotiators might suggest that the tribunal be dissolved, with outstanding Iranian claims withdrawn in exchange for U.S. payment for enrichment of Iranian uranium outside of Iran. Issues concerning diplomatic properties of both governments, which have been the subject of claims before the tribunal, could also be resolved, paving the way for the gradual resumption of diplomatic ties.

I’m generally a fan of the US-Iran Claims Tribunal (and, for the record, it’s probably worth noting that I have worked on behalf of the United States in several of the Tribunal’s cases).  Still, I think Bellinger’s idea is worthy of serious consideration.  Like Bellinger, I’d always understood the real risk to U.S. compliance with the Algiers Accords would arrive whenever the Court finally pronounces on how much the United States owes Iran for the failure to deliver military equipment for which Iran had already paid.  Indeed, although Iran’s own intransigence certainly helps explain why the Tribunal has lasted three decades, it’s not like the United States has eagerly sought an early resolution of all of Iran’s outstanding claims because of the political problem that Bellinger identifies in getting Congress to pay any major awards to Iran. 

Thus, if it’s possible to wind-up the Tribunal as part of any nuclear-related deal between the United States and Iran, wouldn’t it make sense to do so?  Or, are there reasons to maintain the Tribunal independent of the political risk of a major award against the United States at some not-to-distant point in the future?  For example, as the recent nuclear talks indicate, the Tribunal provides a forum for discussion that the United States might want to maintain in lieu of having to go to more ad hoc interactions with all the attendant political questions about “preconditions” for such talks, etc.  Maybe the United States wants (needs?) this forum to remain in place, especially if questions arise in Iran’s conclusion or implementation of the tentative deal currently on the table.  What do readers think?  Is it time to say good-bye to the U.S.-Iran Claims Tribunal?

http://opiniojuris.org/2009/10/24/is-it-time-to-end-the-us-iran-claims-tribunal/

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