The Iran-US Claims Tribunal and the Recent US Military Operation against Iran

Much has already been written about the (il)legality of the recent military operation undertaken by the United States against Iran (see here and here), including on this blog here. Yet, one aspect not dealt with so far has been whether there might exist a judicial forum in which Iran could eventually bring forward a claim for the illegality of the said operation, if it so wanted. As will subsequently be shown, it is the Iran  US Claims Tribunal that might have jurisdiction to decide upon the legality, under international law, of this US military operation codenamed ‘Midnight Hammer’.

At first glance one might have thought about the ICJ as such a possible forum. It is however well-known that the United States, ever since the withdrawal of its former declaration in 1984, no longer has a valid general declaration under Art. 36 (2) ICJ Statute. The Iranian Art. 36 (2)-declaration in turn is limited to covering only issues related to “(i) the jurisdictional immunities of the State and State property” and “(ii) immunity from measures of constraint against State or State property”, which in any case would therefore neither cover any case related to the recent US military operation directed against Iran.

Nor are there any multilateral treaties containing compromissory clauses, where both, Iran and the United States, are contracting parties (and without having entered reservations to the respective compromissory clause), which could be pertinent to the subject-matter of the military operation either. Finally, the 1955 bilateral Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran can no longer serve as a basis for any Iranian case to be brought before the ICJ neither anymore since it was terminated in 2018 by the first Trump administration.

Yet, it is the 1981 Algiers Declarations, constituting a bilateral agreement between Iran and the United States, and establishing the Iran-US Claims Tribunal, that might, maybe somewhat surprisingly, provide for subject-matter jurisdiction concerning a dispute related to the (il)legality of the said military operation.

Content and structure of the Algiers Accords and the establishment of the Iran US Claims Tribunal

The terms of the solution to the crisis created by the 1979 hostage taking, initially by Iranian students and later endorsed by the Iranian government (see here at paras. 57 et seq.), of US diplomats stationed in the US embassy in Tehran, were contained in two complementary and interrelated declarations made by the Government of Algeria. Those declarations had been negotiated, as will be recalled, through Algerian intermediaries, between representatives of Iran and the US, and accepted by both of them on 19 January 1981.

Those documents, setting up the unique and ever since existing Iran United States Claims Tribunal with its seat in The Hague, are, on the one hand, the ‘Declaration of the Government of the Democratic and Popular Republic of Algeria’, the so-called ‘General Declaration’, and, on the other, the ‘Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran’, the so-called ‘Claims Settlement Declaration’.

The ‘Claims Settlement Declaration’ established the Iran-United States Claims Tribunal and determines its composition, competence and procedure and provided notably for the settlement of private claims by US nationals (other than the hostages) against Iran, as well as for contractual claims between the two governments. It is on this basis that the Iran US Clams tribunal has settled enormous amounts of cases mainly covering the mentioned private claims, which private cases have long time ago ended, and in any case became time-barred one year after the entry into force of the Algiers Accords.

As of today, and as the Tribunal itself puts it on its homepage, accordingly the currently still “(…) remaining cases on the docket of the Tribunal include official claims of Iran and the United States against each other arising out of contractual arrangements between them for the purchase and sale of goods and services (the so-called “B” Cases (…)), as well as disputes between the Parties regarding the interpretation and/or performance of the General Declaration (the so-called “A” Cases).”

And it is now the recent US military operation against Iran that could constitute yet another such “A” case, if Iran were to consider bringing such case against the United States.

Interstate Disputes between Iran and the United States concerning Obligations arising under the General Declaration

The Claims Settlement Declaration provides in its Article II, para. 3 that:

“The Tribunal [i.e. the Iran US Claims Tribunal] shall have jurisdiction, as specified in Paragraphs 16-17 of the Declaration of the Government of Algeria of January 19, 1981[i.e. the ‘General Declaration’], over any dispute as to the interpretation or performance of any provision of that [General] Declaration.”

Paragraph 17 of the General Declaration in turn confirms, if there was need, that the said tribunal shall have jurisdiction concerning disputes related to the General Declaration:

“If any other dispute arises between the parties as to the interpretation or performance of any provision of this [General] Declaration, either party may submit the dispute to binding arbitration by the tribunal established by, and in accordance with the provisions of, the Claims Settlement Agreement [i.e. the Iran US Claims Tribunal]. Any decision of the tribunal with respect to such dispute, including any award of damages to compensate for a loss resulting from a breach of this [General] Declaration or the Claims Settlement Agreement may be enforced by the prevailing party in the courts of any nation in accordance with its laws.”

In that regard, it is first important to note that such claims by one government against the other government in connection with the interpretation or application of the Algiers Declarations, unlike other claims, are not time-barred as per Art. 3, para. 4 of the Claims Settlement Declaration:

“No claim may be filed with the Tribunal more than one year after the entry into force of this Agreement or six months after the date the President is appointed, whichever is later. These deadlines do not apply to the procedures contemplated by Paragraphs 16 and 17 of the Declaration of the Government of Algeria of January 19, 1981.” [emphasis added]

The recent US military operation as a possible new “A” case

Having thus outlined the general jurisdictional parameters for claims by one of the two governments against the respective other government in connection with the interpretation or application of the Algiers Declarations, it is Point 1 of the General Declaration which contains the following substantive obligation of the United States, namely that therein:

“(…) [t]he 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.”

It is this obligation “not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs” arising under Point 1 of the General Declaration, and thereby being subject, as shown, to the subject-matter jurisdiction of the Iran US Claims Tribunal, that could eventually give rise to a judicial evaluation of the recent US military operation against Iran by the Iran United States Claims Tribunal.

At the outset, it is important to note that the very issue as to whether operation ‘Midnight Hammer’ did constitute an intervention in the internal affairs of Iran within the meaning of Point 1 of the General Declaration given its international repercussions, or whether instead it was not such an intervention into the Iranian internal affairs, as well as the issue whether it could eventually be justified under international law, would all constitute merits issues which would not bar the Tribunal, if seised by Iran, to exercise its jurisdiction as contemplated in Paragraph 17 of the General Declaration.

1. Legal character of the United States’ obligation not to intervene in Iran’s internal affairs

It seems to be beyond doubt that the formula “pledges that it is and from now on will be the policy of the United States” does not only constitute a mere description of a policy to be followed by the United States, but that it rather entails a legally binding obligation despite that it merely refers to a certain policy to be followed by the United States. For one, the finding of legal bindingness of this formula may be derived from the wording ‘pledge’, which is the equivalent of a promise, assurance or commitment. It thus entails a sense of (legal) obligation.

Besides, it would be nonsensical to provide for the jurisdiction of the Tribunal for possible violations of Point I of the General Declaration if the underlying substantive obligation were not to be considered legally binding, but constituting a political commitment only. Put otherwise, the obligation to follow a certain policy entails the legal obligation not to take any action that would constitute any of the acts prescribed by the provision.

Finally, since the United States were, as of 1981, already subject to a legal obligation arising under customary international law not to intervene in Iran’s internal affairs as reflected in the 1970 Friendly Relations Declaration, it would make no sense to assume that the parties to the 1981 Algiers Declarations had wanted to thereby merely undertake a political commitment. Rather, it seems much more logical to assume that the parties, by inserting Point 1 in the General Declaration, wanted to reiterate and put in written form this very legal obligation already binding upon them in their bilateral relations.

2. Scope ratione temporis of the obligation

This substantive obligation of the United States not to intervene in the internal affairs of Iran “from now on” is, given its wording, not limited in time. It thus continues to still apply as of today, i.e. almost 45 years after the entry into force of the Algiers Declarations. Otherwise, the very fact that, as shown, the jurisdiction of the Tribunal is not limited as far as governmental claims arising under Point I of the General Declaration are concerned in any temporal manner would be nonsensical and would constitute a mere empty shell.

3. Military nature of the interference

Point 1 of the General Declaration inter alia prohibits interventions of a military nature. Yet, it is obvious, first and foremost and indeed beyond any doubt, that the recent ‘Midnight Hammer’ military operation by the United States against Iran must be characterized as being of a direct and military nature, as contemplated by the text of Point I of the General Declaration given that the territory of Iran was subject to the use of force.

4. The obligation not to intervene in the internal affairs of Iran and the use of force by the United States

The obligation not to ‘intervene’ in the internal affairs of Iran incumbent upon the United States under the terms of the General Declaration is mutatis mutandis identical to the wording of the 1986 merits judgement of the ICJ in the Nicaragua case, where the Court stated in para. 205 that

“(…) the principle [of non-intervention] forbids all States (…) to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.”

Said formula, as used in both, Point 1 of the General Declaration and in para. 205 of the ICJ’s Nicaragua merits judgment, in turn obviously drew on the wording of the Friendly Relations Declaration which provides, as is well-known, that “[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State“ with the addition in the General Declaration of specifically also mentioning the methods of such possible interventions, namely political or military means.

In its Nicaragua merits judgment, the Court in the same vein stated that the

“(…) element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force (…) in the direct form of military action (…)”

In the Court’s understanding any use of force which is aimed at changing the behavior of the victim State therefore constitutes a subset of one among various forms of intervention, and at the same time the most gravest form thereof. That does not preclude that any such military intervention would not, by the same token, also violate the prohibition of the use of force, as contained in Art. 2 (4) UN Charter unless justified as a measure of self-defense within the parameters of Art. 51 UN Charter (see generally on the notion of intervention and possible justifications Milanovic here with further references).

The clear usage of military means, by the United States, on Iranian territory therefore seems to at least prima facie fulfil the notion of an intervention within the meaning of Point 1 of the General Declaration, given that, as the ICJ put it, such use of force within the meaning of Art. 2, para. 4 UN Charter constitutes the most obvious case of an intervention given its coercive character.

In that regard it is beyond doubt, first, that the operation, if it was aiming at a ‘regime change’, i.e. a change in the political and constitutional structure of Iran, would have to be also considered as amounting to a prohibited interference in the internal affairs of Iran since, as the Friendly Relations Declaration puts it, an “armed intervention (…) against (…) [the] political (…) elements [of a State] are in violation of international law.”

But even if the military action was exclusively aiming at combating a claimed security threat emanating from Iran’s nuclear program it would nevertheless have interfered at the same time with Iran’s own domestic energy and defense policy choices, and thus constituted a generally prohibited intervention (even amounting to a use of force).

This however raises the question of the relevance of the issue of Iran’s nuclear program being in violation of its obligations under the Non-Proliferation Treaty and/ or still applicable Security Council resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) read in conjunction with Security Council Resolution 2231 (2015).

In addressing the issue, one must first note that this very issue of the illegality of the Iranian nuclear program, an answer to which would extent by far beyond the scope of this post, is disputed between the United States and Iran. It thus will eventually have to be decided by the Tribunal should a case be eventually brought by Iran for such alleged US intervention in its internal affairs.

Assuming, however for the time being that the Iranian nuclear program did indeed violate international law, the question arises as to whether an action (and here the military operation in question) aimed at bringing to an end such violation of international law by Iran could nevertheless amount to a prohibited intervention. Put otherwise, does the very notion of ‘intervention’, given its coercive nature, extent to actions the goal of which is to bring the behavior of the victim State in line with international law.

This issue is particularly relevant in the case at hand since the jurisdiction of the Iran US Claims Tribunal does not extend to violations of the prohibition of the use of force tout court, but only to interventions. Hence, it is only provided the military operation by the United States again Iran did also amount (simultaneously to a violation of Art. 2 (4) UN Charter) to an intervention that the Tribunal could make a finding against the United States.

It is certainly true that the general prohibition of intervention is a standalone rule of international law different from the more limited prohibition of the use of force. Still, the former has to be interpreted in light of the latter, meaning that where such intervention by the same token runs counter to Art. 2 (4) UN Charter  any military operation on the territory of another State ought to be considered a prohibited intervention unless permitted on grounds provided for in international law, and notably the right of self-defense under Art. 51 UN Charter.

There is no reason why coercive measures, at least when they take the form of the use of force, that are aimed at enforcing compliance with prior international obligations the victim State has (allegedly) violated, should not be also measured against the benchmark of the prohibition of interventions since it is the coerciveness of the measure that constitutes the very core of the notion of ‘intervention’ rather than its aim. (but see inter alia Milanovic, at p. 625). Accordingly, e.g. a military operation directed against a State violating human rights of its own population would have to be considered not only a violation of the Art. 2 (4) UN Charter, but also of the prohibition of interventions, unless authorized by the Security Council, or unless such use of force would be permitted under customary law as a humanitarian intervention.

In the case at hand, the use of military force by the United States against Iran would thus not only constitute a violation of Art. 2 (4) UN Charter, but also a prohibited intervention unless this use of force could be justified under general international law, i.e. by relying on the concept of self-defense.

It is true that Point 1 of the General Declaration, unlike e.g. Art. XX of the 1955 bilateral US-Iran Treaty of Amity, Economic Relations, and Consular Rights, does not contain any reference to the taking of measures “necessary to protect its essential security interests”, which could serve as a justification for the use of force and which latter formula the ICJ, in its 2003 judgment in the Oil Platforms (Iran v US) case (see here at paras. 32 et seq.), interpreted in line with Art. 51 UN Charter. Notwithstanding this lack of an explicit renvoi to the concept of self-defense, the prohibition to intervene in Iran’s internal affairs contained in Point 1 of the General Declaration has to be similarly interpreted in line with Art. 51 UN Charter. Accordingly, the Iran United States Tribunal, if seised by Iran, could find a violation of Point 1 of the General Declaration by the United States only provided it were to find that the United States did not act in individual or collective self-defense when using military force against Iran.

Conclusion

Almost 45 years after its creation the Iran US Claims Tribunal is already, as of today, still dealing with major cases based on the complex bilateral relations between Iran and the United States. In dealing with those cases the Tribunal, and its proceedings, also constitute one of the very few for a where the two States and their representatives regularly meet and exchange legal arguments. All of those cases, however, address facts and issues related to the past.

Largely unknown, however, is the fact that the Iran US Claims Tribunal possesses, as shown above, also a future-oriented jurisdiction which enables the Tribunal to even deal with contemporary crises that arise between the two States. It remains to be seen whether Iran will seize the opportunity to eventually seise the Tribunal in order for it to provide a judicial remedy for the grievances caused by the recent military operation of the United States against Iran.