May 13, 2016
by Warren L. Nelson
Iran last week said the 120-nation Non-Aligned Movement (NAM) had condemned the United States for violating international law by confiscating assets owned by Iran’s Central Bank and awarding the funds to American “victims of terrorism.”
The 120 nations in NAM represent almost two-thirds of the membership of the United Nations.
However, there were a few problems with the announcement, which was made by Iran, as the president of NAM until later this year.
To begin with, there has been no NAM meeting to vote on any condemnation. In fact, the condemnation was not issued in the name of the NAM but in the name of the Coordinating Bureau of the movement, which is in Tehran. Iran was careful not to say—although it did imply—that all 120 NAM members supported the condemnation.
In fact, Iran Daily, which is owned by the government, headlined, “All 120 NAM members slam US confiscation of Iran assets.”
The Iran Times, however, has not yet seen any country issue a public statement disavowing the Coordinating Bureau statement.
Another problem is that the statement based the assertion of a US violation chiefly on an international convention that hasn’t been approved.
The statement said the principle of “sovereign immunity,” the idea that states cannot be sued, was “most recently codified in the United Nations Convention on Jurisdictional Immunities of States and Their Property.”
That convention was drafted in 2004 and will enter into force after the 30th country has ratified it. However, only 21 countries—or barely 10 percent of the UN membership—have ratified it, so it is not international law.
Iran approved the agreement almost eight years ago, but the United States and Canada have not signed on.
Interestingly, when Iran accepted the convention it issued a reservation saying it would not agree that any other party could take it to the International Court of Justice (ICJ) for violations of the convention. It said it would accept ICJ jurisdiction only for particular cases where it chose to accept ICJ jurisdiction.
Furthermore, the conven- tion’s Article 4 says the convention does not apply to cases argued in national courts before the convention entered into force. In other words, even if one could argue that the convention bans what the United States has done, it would only ban it in the future, and would not un-do the recent Supreme Court decision.
In addition, a few years ago, the Majlis mimicked the US law by authorizing Iranians to sue the United States for its actions that have harmed Iran, citing the examples of the 1989 shootdown of an Iran Air Airbus by the US Navy and the overthrow of Prime Minister Mohammad Mossadegh in 1953. Iran is now arguing that Americans are not allowed to sue Iran, but Iranians may sue the United States.
US State Department spokesman Mark Toner issued a very brief response to the NAM statement: “US laws and the application of those laws by the courts of the United States comport with international law.”
The United States was actually the first country to put the generalized theory of sovereign immunity onto its statute books in the First Congress seated after approval of the US Constitution. Over the years, the United States has enacted several exemptions from sovereign immunity, including one for acts of terrorism, which was entered in the law in 1996.
Here is the full text of the statement issued by the NAM’s Coordinating Bureau and published by Iran.
“The Coordinating Bureau of the Non-Aligned Movement rejects the illegal practice of the United States in defying international law by allowing and facilitating private plaintiffs to bring civil action before US courts against sovereign States, including the Islamic Republic of Iran, leading to the awards of default judgments against them and their national institutions. Legislation by US Congress to pave the way for illegally confiscating foreign assets in the US and the actions by the US government to unlawfully hold them enable US courts to issue groundless rulings.
“The CoB objects to US defiance to international law through the unilateral waiving of the sovereign immunity of States and their institutions in total contravention of the international and treaty obligations of the United States and under a spurious legal ground that the international community does not recognize. This practice runs counter to the most fundamental principles of international law, in particular the principle of sovereign immunity as one of the cornerstones of the international legal order and a rule of customary international law—a principle whose primacy is recognized by the community of nations, all legal systems and the International Court of Justice and was most recently codified in the United Nations Convention on Jurisdictional Immunities of States and Their Property.
“The CoB calls upon the United States of America to respect the principle of State immunity, and reiterates that failing to do so would have adverse implications, including uncertainty and chaos in international relations and the undermining of the rule of law at the international level, and would constitute an international wrongful act, which entails international responsibility.
“The CoB seizes this opportunity to reiterate the NAM’s call to uphold dialogue and accommodation over coercion and confrontation as well as to promote peaceful settlement of disputes.”