public international law topic 8 us diplomatic and consular staff in tehran case icj reports 21 1988

Case briefing The case of the United States Diplomatic and Consular Staff in Tehran is a significant international legal case.. This convention stipulates that member states are obligate

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Opening In the annals of international law, few incidents have been as jarring and consequential as the "Case of the Diplomatic and Consular Staff in the United States in Tehran” in 1980 This event was not just a dark chapter in Iran-U.S relations but also a significant focal point in the application and understanding of international law The severe breach of diplomatic immunity, a foundational principle of international law, posed a complex and challenging problem for the international community and the International Court of Justice (ICJ).

TABLE OE CONTENTS 1 Case briefing

nN Legal analysis PA in, ai4 2.2 The Court's statement

2.3 Some of separate opinions 2.3.1 Separate opinions of Judge Tomka 2.3.2 Separate opinions of ad hoc Momtaz 2.3.3 Separate opinion, partly concurring and dissenting of Judge Robinson Judgment of The International Court of Justice

3.1.ProvIsional measures 1n I5 December I979 - - c 12: 2111111211111 191191 1111111111101 118110 1168011 kg 3.2.Final judgment of 24 May 1980

4 The implications and impact of this case AL Legace ccc eee cn keene ene Erne Ee L ECL EE ELE EDEL SCHEELE E CHEESES EO EEECaE Ses dS Es desi aE Scie sesatesaeeesesesatesaeenseensas 4.2 Political

4.3 Historical 4.4 The reaction of two sides in this case

4.4.1 Tran

4.4.2 The United States 5 Concluding Remarks and Lessons Learned:

I Case briefing The case of the United States Diplomatic and Consular Staff in Tehran is a significant international legal case This case, between the United States and Iran, was adjudicated by the International Court of Justice (ICJ) in 1988 The Court's ruling clarified the obligations of nations concerning the diplomatic and consular staff of other countries

1.1, Background of the Lawsuit: The Iranian Islamic Revolution overthrew the Pahlavi regime, a monarchy ruling Iran The revolution took place from 1978 to 1979, leading to the establishment of the Islamic Republic of Iran

On the morning of November 4, 1979, hundreds of Muslim students stormed the U.S Embassy in the center of the capital, Tehran, Iran They climbed over walls and protective fences, identifying themselves as followers of the dissenting cleric Ayatollah Khomeini The students demanded the extradition of the toppled monarch, Mohammad Reza Pahlavi, from the United States Armed with clubs, they seized the embassy offices after three hours, despite U.S Marine resistance with tear gas before being taken hostage

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Over 60 Americans were initially captured, some were quickly released, but 52 remained The Muslim students displayed a makeshift gallows in front of the embassy with a sign reading "For the king.” Beside it, the U.S flag was bumed, replaced by a green banner with the inscription "Allahu Akbar.” Anti-U.S slogans echoed through loudspeakers alongside Quranic teachings and revolutionary songs Police and Revolutionary Guard troops were deployed, while bearded male students and veiled female students paraded with portraits of Ayatollah Khomeini

Bread and sandwiches were passed to them through the fence The spontaneous attack on the U.S Embassy was fueled by fervor for the Islamic revolutionary movement The religious hardliners disagreed with the inter Primme Minister Mehdi Bazargan's conciliatory approach and forced his resignation on November 6 A Revolutionary Council assumed control, refusing to sell oil to the U.S.In response, Washington imposed an import ban on Iranian goods and froze the country's financial assets

The case reached the International Court of Justice, which ruled [ran violated its obligations to the U.S under valid agreements and general international law Iran was ordered to immediately release the hostages, restore the embassy, and compensate for the damages, but [ran disregarded the ruling

Only with the mediation of Algerian intermediaries did the U.S and Iran eventually engage in successful negotiations On the day of Reagan's inauguration, the U.S unfroze nearly $8 billion of Iran's assets Ronald Reagan's inauguration day on January 20, 1981, marked the release of the hostages after 444 days The following day, former President Jimmy Carter flew to West Germany to welcome the retuming Americans home

1.2 Arguments from Both Sides: The U.S accused Iran of violating the provisions of the 1961 Vienna Convention on Diplomatic Relations This convention stipulates that member states are obligated to protect the diplomatic and consular staff of other nations within their territory Specifically, the U.S argued that Iran violated the following provisions:

- Article 22: Member states are obligated to respect and protect the inviolability of embassies and consulates of other nations

- Article 24: Member states are obligated to protect the diplomatic and consular staff of other nations within their territory

- Article 29: Member states are obligated to settle disputes related to the Convention through negotiation, arbitration, or other peaceful means

The U.S contended that [ran's hostage-taking directly violated these provisions, as Iran did not respect the inviolability of the U.S Embassy in Tehran and failed to protect U.S diplomatic and consular staff The U.S also argued that Iran's 444-day hostage- taking was illegal Iran did not resolve the dispute with the U.S through peaceful means but instead used hostages as a pressure tactic

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Iran rejected the U.S allegations Iran argued that the seizure of the hostages was a legitimate act in response to U.S interference in Iran Arguing that the United States had interfered in Iran's internal affairs by supporting the Pahlavi monarchy that was overthrown during the Iranian Revolution Iran argued that the seizure of the hostages was a way for Iran to respond to this interference

Iran also argued that the hostages had been treated well and had not been tortured Iran argued that the hostages had been provided with food, water, and medical care

1.3 The decision of the Court: The ICJ ruled that Iran had violated the provisions of the 1961 Vienna Convention on Diplomatic Relations The Court ordered Iran to compensate the U.S with $244 million for the material and psychological damages suffered by the hostages

The ICJ accepted the U.S arguments that Iran had breached the Vienna Convention's provisions The Court also rejected Iran's claims that hostage-taking was a justifiable action

1.4 The outcome of the Lawsuit: The ICJ's ruling was a victory for the United States, establishing that nations have an obligation to protect the diplomatic and consular staff of other countries within their territory

The ruling also heightened tensions between the U.S and Iran Iran did not pay the compensation, and the two countries continued to confront each other for many decades 1.5 Impact of the Lawsuit:

The case of the United States Diplomatic and Consular Staff in Tehran is a crucial one in international law The ICJ's ruling clarified the obligations of nations regarding the diplomatic and consular staff of other countries

The case demonstrated the significant role the ICJ can play in resolving disputes between nations

Specific impacts of the lawsuit include: The Court's decision helped to clarify the obligations of states to the diplomatic and consular staff of other states States have an obligation to protect the diplomatic and consular staff of other states on their territory, including from being arrested or tortured This obligation is based on the Vienna Convention on Consular Relations of 1961, which is a treaty that has been ratified by over 190 countries

The Court's decision helped to raise awareness of the importance of protecting diplomatic and consular staff The decision showed that states can be ordered by the ICJ to pay compensation for damages caused to the diplomatic and consular staff of other states This can be a significant financial burden for states, and it can also damage a state's reputation

The Court's decision helped to strengthen the role of the ICJ in resolving international disputes The decision showed that the ICJ is willing to rule against powerful states, even when those states are not members of the United Nations This can help to deter states from violating international law

1.6 Further Analysis: The case of the United States Diplomatic and Consular Staff in Tehran is a complex and controversial one Several pomts need further analysis in this case

One point to analyze is whether Iran's hostage-taking was a justifiable action [ran argued that the hostage-taking was a just response to U.S interference in Iran's internal affairs However, the ICJ rejected this argument, stating that hostage-taking directly violated the provisions of the Vienna Convention on Diplomatic Relations

Another point to analyze is whether Iran not paying compensation to the U.S constitutes a violation of mternational law Iran did not pay the compensation, and the two countries continued to confront each other for many decades This suggests that Iran did not consider the [CJ's ruling as significant

In conclusion, the case of the United States Diplomatic and Consular Staff in Tehran is a crucial one in international law This case clarified the obligations of nations and the role of the ICJ in resolving international disputes, while also highlighting the complexities and challenges in enforcing such rulings

2 Legal analysis

2.1 Legal basis Iran based its determination of the International Court of Justice's (CJ) jurisdiction on Article XXI(2) of the Treaty, which states:

“Any dispute between the Signatory Parties concerning the interpretation or application of this Treaty, if not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice unless the Signatory Parties agree to other peaceful means.”

2.2 The Court's statement

In this judgment, the Court recognized its jurisdiction over allegations of mistreatment related to Iranian assets and legal persons However, it deemed itself not competent regarding the allegation of violation of immunity nghts The Court reasoned that the dispute over immunity rights is governed by customary international law, without any provision regarding immunity rights in any clause of the Treaty, hence not falling within the ambit of “disputes relating to the interpretation and application of the Treaty.” 7

Of the three U.S objections to jurisdiction, the third is particularly interesting The U.S argued that Articles III, [V, and V of the Treaty set out provisions governing “companies” engaged in commercial activities, while the Central Bank of Iran merely performs purely sovereign national functions of Iran, and therefore is not a “company” protected under those provisions

Articles III, [V, and V of the Treaty require the Signatory Parties to respect certain rights and assurances for individuals (nationals) and companies of the other Signatory, including rights like access to justice, fair treatment, non-discriminatory and irrational treatment, minimum property guarantees as prescribed by international law, rights in case of nationalization, etc

In this case, a large part of Iran's allegations related to the assets of the Central Bank of Iran (referred to as Bank Markazi) While the U.S maintained that companies under the three articles must be entities operating for commercial purposes in a competitive market environment, Iran argued that the term “company” is used broadly, applicable to any entity with “separate legal status” in the legal system where it was established, regardless of the nature of activities, financial structure, or whether the entity engages in profit-making activities or not Iran contended that Bank Markazi has legal personhood under Iranian law and operates under corporate law, not the law for public authorities, except in some instances Moreover, this Bank is capitalized to operate, and when profitable, it must pay taxes to the State, like any other legal person, it can enter into contracts, trade goods and services, own property, and participate in litigation

The Court referred back to the definition of “company” under Article [[I(1) of the

Treaty:

“A company is understood to be corporations, joint ventures, companies, and other associations, regardless of whether they are limited liability or not and regardless of whether they operate for economic profit or not.”

The Court held that an entity is considered a company if it has legal personality under the law of a Signatory Party and includes both private and public entities The ownership or control of an entity by the state does not affect its status as a private entity under the said Article Thus, Bank Markazi, being wholly owned and controlled by the Iranian government, is not excluded from being considered a company

The Court stated that determining whether Markazi is a company depends on the nature of the bank's activities Accordingly, “an entity that purely performs sovereign national activities related to a State’s sovereign functions cannot be regarded as a ‘company’ under the Treaty and therefore, does not enjoy the rights and protections of Articles HL, IV, and V.” The Court added that an entity engaging in both commercial and non-commercial sovereign activities is still considered a ‘company’, even if commercial 8

activities are not its primary function This conclusion is based on interpreting the definition of “company” in a way that aligns with the context and purpose, subject matter of the Treaty These factors indicate that the Treaty “aims to protect the rights and assurances of individuals and legal persons engaged in commercial activities.”

Due to insufficient information and limited debate by the parties about Markazi's activities, and the issue being closely related to the substance of the dispute, the Court decided to consider it in a later phase of the proceedings

2.3 Some of separate opinions 2.3.1 Separate opinions of Judge Tomka

Interpretation of Article IIL, paragraph 1, of the 1955 Treaty of Amity Meaning of the phrase “shall have their juridical status recognized” Viewed in light of object and purpose of Treaty and against historical background, the recognition of “juridical status” in question concerns the legal personality and legal capacity of companies Provision not equivalent to a warranty that companies shall have their corporate form respected in any circumstances Article X, paragraph 1, of the Treaty of Amity Finding of the Court that the United States has violated its obligation to ensure “freedom of commerce” Insufficient evidence for this finding United States measures not aimed at limiting, or interfering with, freedom of commerce

2.3.2 Separate opinions of ad hoc Momtaz Jurisdiction of the Court Claims relating to Bank Markazi’s rights under Articles Ill, [V and V of the Treaty of Amity Jurisdiction ratione materiae of the Court Primacy of the criterion of the nature of the transaction over the criterion of its function Article I of the Treaty of Amity — Article I as a lodestar for interpretation of the Treaty’s provisions

2.3.3 Separate opinion, partly concurring and dissenting of Judge Robinson “1 In this opinion I explain my disagreement with paragraph 236 (1) of the Judgment, in which the Court upholds the “objection to jurisdiction raised by the United States of America relating to the claims of the Islamic Republic of Iran under Articles IIL, IV and V of the 1955 Treaty of Amity, Economic Relations, and Consular Rights, to the extent that they relate to treatment accorded to Bank Markazi and, accordingly, finds that it has no jurisdiction to consider those claims” I also offer observations on other aspects of the Judgment.”

These judgments did not include any Dissenting Opinions from any judge, including those judges who voted against the Court’s conclusions

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3 Judgment of The International Court of Justice 3.1 Provisional measures in 15 December 1979

The Court unanimously made an Order indicating provisional measures to the effect that, pending the Court's final decision in the case concerning United States Diplomatic and Consular Staff in Tehran:

A (i) The Government of the Islamic Republic of Iran should immediately ensure that the premises of the United States Embassy, Chancery and Consulates be restored to the possession of the United States authorities under their exclusive control, and should ensure their inviolability and effective protection as provided for by the treaties in force between the two States, and by general international law;

(1) The Government of the Islamic Republic of Iran should ensure the immediate release, without any exception, of all persons of United States nationality who are or have been held in the Embassy of the United States of America or in the Ministry of Foreign Affairs in Tehran, or have been held as hostages elsewhere, and afford full protection to all such persons, in accordance with the treaties in force between the two States, and with general international law;

(a1) The Government of the Islamic Republic of Iran should, as from that moment, afford to all the diplomatic and consular personnel of the United States the full protection, privileges and immunities to which they are entitled under the treaties in force between the two States, and under general international law, including immunity from any form of criminal jurisdiction and freedom and facilities to leave the territory of Iran; B The Government of the United States of America and the Government of the Islamic Republic of Iran should not take any action and should ensure that no action is taken which may aggravate the tension between the two countries or render the existing dispute more difficult of solution

The Court can be seen to albeit briefly, and in no great detail substantiate the rights claimed by the United States of America against Iran i the Diplomatic and Consular Staff case There the Court referred to the ‘fundamental’ nature of the rule on ‘the inviolability of diplomatic envoys and embassies’, and noted that the ‘obligations thus assumed [ ] are essential, unqualified, and inherent’

3.2 Final judgment of 24 May 1980 In its Judgment in the case concerning United States Diplomatic and Consular Staff in Tehran, the Court decided

(1) that Iran has violated and is still violating obligations owed by it to the United States; (2) that these violations engage Iran's responsibility;

(3) that the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the embassy in the hands of the protecting power; 10