Dispute Settlement between Iran and the US - Essay Example

DISPUTE SETTLEMENT BETWEEN S: THE IRAN-U.S. CLAIMS TRIBUNAL CASE AND THE LA GRAND CASE Introduction Peaceful settlementof international disputes is considered the main objective in maintaining peace and security as legislated in significant principles of Article 2(3) of the United Nations Charter. The legislation states that all members of the United Nations are to settle international disputes in a manner that shall not endanger international peace, security, and justice. Article 33(1) of the United Nations Charter also discusses direct and peaceful settlement of international disputes where states are to settle their disputes by means of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, regional agencies or arrangements, and other peaceful settlements decided on by them. Hence, it is a duty of the members of the United Nations to settle international disputes through peaceful means, which may cover either legal or political character. In the internal legal system of a state, it would be generally perceived that the dispute to be settled is legal. That is, when there is a dispute between individuals on rights, duties, and liabilities in accordance to law or legalization, the settlement of such may be carried out by negotiation or conciliation - that is, bringing the dispute to the consideration of a third party body which may act as an "arbitrator." The arbitrator may be a permanent organization of a state which shall serve as the "court," wherein both the arbitrator and the court shall consider the dispute by the principle of law, which essentially means that the rulings of the arbitrator and the judgment of the court shall legitimately bind the disputing parties. In the international legal system, the meaning and scope of the settlement of international disputes are broader than the settlement of internal legal disputes (Hill 1945). That is, the settlement of international disputes is not limited to legal issues alone, but may also include political, trade, economy, or any other issues that may put two nations into a dispute. Whatever the nature of dispute states may involve themselves into, a lack of peaceful settlement may possibly lead to armed conflict or war since a state cannot be forced to settle international disputes without its consent, implying that the international legal system does not have any mechanism to force any state to settle disputes (Glahn 1970). It is explicit that in the international law, there is not one state, which, without its consent, shall be forced to propose a compromise, arbitration, or any other peaceful means of settling a dispute with another1. The principle of international law evident in the advice of the Permanent Court of International Justice is still deemed practical and accepted by members of the international community because even the United Nations Charter stipulates that there is not any enforcing measure for its members in the settlement of disputes (Glahn 1970). It is however stipulated as a duty of all members of the United Nations that if a dispute is to be settled, the parties concerned shall settle it through peaceful means2. Since issues of international disputes can be of any character, the settlement of international disputes is therefore not always related directly to international law. For example, an international dispute of a political issue may not require international law in consideration. However, even though international disputes of political nature, or of any other nature, are not related directly to international law, the disputing parties have to settle their dispute by peaceful means as stipulated in the principles of international law and as evident in Articles 2(3) and 33(1) of the United Nations Charter. The disputing parties may exploit any means of peaceful settlement between each other as long as they have mutually agreed upon a direct negotiation between them, such as establishing a joint working group for inquiry of facts, introduction of a third party for negotiation and reconciliation, and proposing the dispute to the third party specifically appointed by them by means of "arbitration," such as the International Court of Justice which is a permanent court organization (Shaw 2003). The Role of International Organizations in the Settlement of International Disputes An international organization is a body of international law status, which can be exploited as a "means" to settle international disputes through negotiation, mediation, conciliation, and arbitration. An example of these is the International Court of Justice. However, a number of international organizations have developed their means of consideration for the settlement of disputes through their own mechanism and organizations. Such international organizations continue to apply one of the above means to settle international disputes, as evident in Article 12 of the Covenant of the League of Nations, requiring every member state to present their disputes to the arbitrator or Trustee of Inquiry. The United Nations and various regional organizations are international organizations that play a major role in ensuring settlement mechanisms of international disputes. The United Nations The United Nations Charter has legislated peaceful settlement means for disputes, specifically in Chapter VI, Article 33(1), which has laid general principles for peaceful settlement of international disputes whose existence may be harmful to the maintenance of international peace and security. It shall try to settle the dispute through negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, and regional agencies or arrangements, or other peaceful means of settlement3. Even though the provisions of Article 33(1) of the United Nations Charter correspond with another provision in Article 2(3) which says that all members of the United Nations are to settle their international disputes by peaceful means in the manner that shall not endanger international peace, security, and justice, and even though provision of Article 33(1) and Article 2(3) of the United Nations Charter are legislated correspondingly, there are still some differences. These differences lie in the fact that Article 2(3) describes general accountability (of the United Nations and its members) which is to be carried out according to the objectives of the United Nations Charter pertaining to maintenance of international peace and security. On the other hand, article 33(1) emphasizes the role of the United Nations in settling international disputes through aforementioned means. It is evident that Article 33(1) is more specific than Article 2(3), while Article 33(1) allows the disputing parties to select one of the means stated in Article 33(1) in settling disputes. It is evident that the United Nations plays a certain role in settling international disputes, yet its role is limited only to "any dispute, which may be harmful to international peace and security maintenance4. The United Nations does not have any accountability to settle other international disputes (Glahn 1970:483). It is clear that the role of the United Nations in settling international disputes does not overlap with the role of the International Court of Justice, which is one of the principal organizations of the United Nations. However, because international disputes can be of international political disputes or of any other character including that of a legal nature, the role of the United Nations is emphasized with other disputes, especially those about international politics. For legal disputes, the UN Security Trustee shall prepare recommendations in presenting disputes to the International Court of Justice5. For any international dispute whose prolongation may endanger international peace and security as stated in Article 33(1) of the United Nations' Charter, the Security Council may, if it deems necessary, summon the parties to put the dispute to halt through employment of various means specified in Article 33(1). In case the disputing parties could not stop the dispute with the means specified, they shall submit it to the UN Security Council, and if the latter deems that the existence of the dispute could endanger international peace and security, the UN Security Council shall have to decide whether it shall address the dispute through Article 36 of the UN Charter or propose its best suitable solution to address such. For the consideration whether any prolonged international dispute might endanger international peace and security, the UN Security Council may carry out an investigation as to whether or not the situation may indeed endanger international peace and security. With the consideration of the UN Security Council or the General Assembly of the United Nations, any member of the United Nations may raise a question of endangerment of international peace and security due to a prolonged dispute between two or more states. The UN charter likewise stipulates that a non-member may also do such, provided that it shall advance its accountability for a peaceful reconciliation of the states (Shaw 2003). The Iran-US Claims Tribunal The principle of non-arbitration of private acts remains to dominate state responsibility for privately occasioned injury to aliens. The most significant example of this aspect of State Responsibility is cited in the context of wrongful expulsion, expropriation, and breach of contract claimed by US nationals before the Iran-US Claims Tribunal (Becker 2006). The tribunal showed a reluctant stance with an absence of a clear agency relationship, in attributing to Iran direct responsibility for conduct of non-State actors, even in the aspect where Iran showed failure in its duty to protect foreigners (ibid). In the case of Short v Iran, the claimant alleged "the acts of harassment and intimidation by private individual before and during the Islamic revolution which led to the claimant's departure from Iran alongside with property loss" (ibid). He argued that Iran is attributable to these acts, which amounted to "unlawful constructive expulsion by the State itself" (ibid). After referring to ILC's principles of attribution, the majority of the Chamber ruled that while the conduct of members of a revolutionary movement is attributable as acts of the State, the conduct of the supporters of this government cannot be attributed as acts of the State. Hence, Iran could not be held liable for the harmful conduct considering that the claimant was unable to identify revolutionary agents who were involved in the acts leading to his departure and loss of properties, nor point to specific directives issued by the leaders of the Revolution. Judge Brower stated that the tribunal should have established a presumption proving that the departure of US nationals from Iran was a result of wrongful expulsion by the latter. The case of Rankin v Iran, which was decided several months after the case of Short v Iran, held that the claimant needed to produce sufficient evidence that specific directives by Iranian revolutionary agents led to his departure and property loss. The claim presented by the claimant of the general and widespread official policy to rid Iran of foreigners was held insufficient to show Iran being directly responsible for Rankin's departure and loss of properties. However, in Yeager v Iran, the claimant was successful in showing that members of the Iranian Revolutionary Guards had caused his departure from the country. Since the guards were performing public functions and were identified to constitute a militia, the Tribunal regarded them as de facto agents of the emerging Khomenei government. It was further found out as a result that Iran cannot at the same time tolerate the exercise of governmental authority by its agents and the denial of responsibility for wrongful acts committed by them.6 The Chamber pointed out that had the acts of the Revolutionary Guards been private in nature, Iran could not be held responsible for it, despite a calculated policy that encouraged anti-America activities in the country.7 In determining Iranian responsibility for breach of contract by state-owned and controlled enterprises, the Tribunal held that there was lack of clear evidence of governmental interference of corporate action, which is thus regarded as commercial and private, and is therefore not attributable to Iran (Becker 2006). The La Grand Case - Germany vs. USA The contentious case of International Court of Justice, Germany v United States revolved around the two brothers Karl and Walter LaGrand who were sentenced to death by commiting an armed robbery that led to death in 1982. They were German nationals who moved in the United States with their mother when they were children, and were not considred citizens of the United States at all in their long period of stay there (LaGrand Case, Retrieved on April 24, 2008). Under the Vienna Convention on Cosular Relations, the State of Arizona representing the United States was required to inform the brothers about their right to recieve consular assistance from the German government (ibid). However, the US authorities failed to act on this matter, even upon knowing that the LaGrands were German nationals. Through their own efforts, the LaGrand brothers then contacted the German consulate, after being aware of their right to consular assistance from other sources (ibid). They made an appeal of their sentences on the basis that they were not informed of their right to consular assistance, and that they might have been able to defend themselves better had they known and exercised this right. The appeal was however rejected by US Federal Courts on the basis of the US Muncipal Law doctrine of procedural default, stating that issues can only be raised in federal court appeals if they have first been raised in state courts. With the rejection of the appeal, Karl LaGrand was executed by the State of Arizona on February 24,1999 (ibid). After the execution of Karl LaGrand, the Federal Republic of Germany initiated a legal action in the International Court of Justice against the United States concerning Walter LaGrand. Germany applied for the grant of provisional measures proprio motu, requiring the United States to prevent the execution of Walter LaGrand who was then about to be executed hours before. The Court granted Germany's request and the latter initiated an action in the U.S. Supreme Court, requesting for the enforcement of the provisional measures (LaGrand Case, Retrieved on April 24, 2008). In its judgment, the U.S. Supreme Court8 held that due to the eleventh amendment of the US Constitution prohibiting federal courts from hearing lawsuits of foreign states against a U.S. state, it lacked jurisdiction concerning Germany's complaint against Arizona. It further held that the doctrine of procedural default was compatible with the Vienna Convention, and that even if procedural default is in conflict with it, a later federal law preempts it, specifically the Anti-Terrorism and Effective Death Penalty Act of 1996 , explicitly legislating the doctrine of procedural default (ibid). After these, the US Solicitor-General communicated with the US Supreme Court, argung that "provisional measures of the ICJ are not legally binding" (ibid). Likewise, the US Department of States communicated the provisional measures of the International Court of Justice to the Governor of Arizona without comment, where the Arizona clemency board recommended a stay to the Governor, who ignored the recommendation and allowed Walter LaGrand to be executed on March 3, 1999 (LaGrand Case, Retrieved on April 24, 2008). Germany moved by modifying its complaint before the International Court of Justice, alleging that the United States violated the international law in its failure to implement the provisional measures. In opposition, the United States argued that the Vienna Convention grants rights only to states and not to individuals. However, the Court rejected this argument on the basis that the the plain meaning of the Convention was contradicted by this interpretation. The court also found that the rights of the accused under the convention could not be delimited by domestic laws (ibid). When the United States argued that Germany wants to turn the Court into an international court of criminal appeal, the Court also rejected this argument (ibid). Thus, the International Court of Justice gave its judgment on June 27, 2001, favoring of Germany. Conclusion It is clear that there is a need for an international organzation that will serve as a mediator or arbitrator on conflicts of states. Without these arbtration bodies such as the International Court of Justice, issues of prime significance involving legal aspects may not be settled solely by two conflicting states who forward contradicting allegations againts each other on an issue. The importance of dispute settlement between states is exemplified by both the Iran-US Claims Tribunal Case and the LaGrand Case. As exhibited, the decisions of the international court are held legally binding, allowing both states to respect and submit to the decision. REFERENCES BECKER, Tal, 2006. Terrorism and the state: rethinking the rules of state responsibility. Hart Publishing. DUKE L. J,. 1779. Territorial disputes at the International Court of Justice. GLAHN, G.V., 1970. Law among nations. Second ed. Macmillan Publishing Co., Inc. HILL, Norman, 1945. Claims to territory in International Law and Relations. LaGrand Case. Retrieved on April 24, 2008 from http://nostalgia.wikipedia.org/wiki/LaGrand_Case SACK, Robert David, 1986. Human territoriality: its theory and history. SCHACHTER, Oscar, 1991. International law in theory and practice. SHAW, Malcolm N., 2003. International Law. 5 th Edition. Cambridge University Press. TOWNSEND, G., 1997. State responsibility for acts of de facto agents. WEERAMANTRY, Christopher G., 1997. Justice without frontiers, Brill Publishers. Read More