2016 Iranian Hostage Exchange for $1.7b and President Carter’s 1980 Hostage Accords — Diplomatically & Legally Correct — Maybe, But are They Good Precedent Today?

Iranian Hostages (1979)

2016 Iranian Hostage Exchange for $1.7b and President Carter’s 1980 Hostage Accords — Diplomatically & Legally Correct — Maybe, But are They Good Precedent Today?

     The transfer of $1.7 billion dollars to Iran to secure the release of the Hostages this month coincided with implementation day of the nuclear agreement and lifting of economic sanctions.

      This raises the unfortunate and lingering memories of the way President Carter and then President Reagan dealt with the first Iranian Hostage agreement of  the early 1980s.  That resulted in the release of our hostages after 444 days after their capture in the American Embassy in Teheran in 1979.

     In particular, the first hostage release raised the dual questions of whether or not it made diplomatic sense and whether it was lawful, under either U.S. law or international law. These same two questions can be asked about the new 2016 payment.

     In both cases payments were made to secure the release of the hostages. In 1979-1980 international executive agreements were used which established arbitral proceedings in the Hague. They were concluded under the president’s authority to conduct foreign affairs and to settle diplomatic claims.

     In 2016 such agreements were used but no new arbitral proceedings authorized. In fact, the recent payment was made on the grounds of settling earlier arbitral proceedings going back to the initial hostage release.

     Both President Carter and Reagan as well as the Supreme Court continued to uphold the constitutional and international legal construct for this diplomatic arrangement.

     However, are we now paying the price of this model in a newer era of international relations and international law?

     Does this traditional approach to law and diplomacy, adopted again by President Obama, in January this year, now act as a means of encouraging even more such actions by all parties?

     Does this law and diplomatic approach make for good domestic or global public policy in the 21st century? For the U.S. and other nations?

     The above and more specific legal and diplomatic questions certainly are needed of further and more detailed exploration.

     But at this point my quick conclusion is the following ….. On balance, especially with some hindsight since the early 1980s, both hostage deals make diplomatic sense and both are lawful (under both Constitutional and international law). 

      But they raise disturbing questions concerning their impact on international law and global diplomacy as we go forward in this newer and full-blown era of state-sponsored terrorism and the acceleration of non-state supported terrorism (ISIS and company). 

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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