Wednesday, June 24, 2015

“Good Faith” is Key to Iran’s Nuclear Deal with 5+1 Powers

“Good Faith” is Key to Iran’s Nuclear Deal with 5+1 Powers

Ali Asghar Kazemi
June 23, 2015


Upon the failure of several attempts to settle peacefully Iran’s nuclear activities, the United States, along with the IAEA and the Security Council, called upon this country to resume voluntary implementation of and ratify its additional protocol.[1] Iran reluctantly agreed to enter into negotiations with 5=1 powers for the implementation and eventually ratification of additional protocol as part of a comprehensive nuclear deal   with the five permanent members of the UN Security Council and Germany. The parties set a June 30, 2015 deadline for reaching an agreement.[2]
No matter what the substance of an eventual nuclear accord between Iran and the 5+1 powers which, at this very moment is under serious negotiations, the fundamental question to any such deal is problem of “good faith” in the implementation of the agreement.[3]
There is no need to emphasize here that the corollary notion of good faith is mutual confidence between parties to a contract. In other words, without confidence the principle of good faith will be overshadowed by permanent fear of breach by one of the parties and therefore adherents to a contract should be assured of good intention and behavior of all associated to a treaty.
Now, let’s see whether “mutual confidence” is present between parties to the nuclear deal between Iran and 5+1. According to media, both the United States and Iran have repeatedly claimed that they have no confidence on the other. This has created an atmosphere of suspicion and mistrust that so far seriously inhibited the process of drafting the text of the agreement.
On the one hand, US President has explicitly said at various occasions that he has no confidence on Iran and the lifting of the sanctions will be gradual in time and proportionate to the implementation of specific verifiable actions of the nuclear accord and various clauses provided in the deal. On the other hand, the Iranian leader too has set a number of “red lines” to the negotiations limiting the extent to which the 5+1 intend to verify the good performance of the agreement especially with respect to Additional Protocol[4]  and the NPT[5]. Namely he has prohibited any inspections of military sites not related to nuclear activities and has barred any interview with nuclear scientists as well as military authorities involved in the national security. Furthermore, he has required that sanctions should be lifted all at once with the conclusion of the agreement; a demand that seems legally unreachable and practically impossible to perform. Each of them justifies his position based on the others’ past records and historic events not necessarily relevant to the present situation.
The fact of the matter is that Iran has been under UN sanctions by the Security Council Resolutions under article 41 of  Chapter VII of the United Nations Charter. This means that either Iran would agree to abide by the demands of the Security Council and its permanent members or it will be subject to Article 42 of the Charter that provides as follows;
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”[6]
While parties to the dispute are speaking of a faire win-win deal that would satisfy all, it is flagrantly clear that Iran is in a much weaker position because of appalling economic and financial sanctions imposed upon it for several years. One may even say that the agreement reached in such circumstance would be against provisions of the Vienna Convention on the Law of Treaties and can be termed as an “unequal treaty” that is being imposed upon Iran with the effect of limiting to exercise its sovereign rights. It can therefore be realized why Iran has so far resisted to comply with some ruthless demands of the world powers with respect to its assumed peaceful nuclear activities.
Whether Iran and the 5+1 powers can reach an agreement that satisfy all parties and the international community as a whole, would depend on the following requisites:
a)     The degree to which Iran consent to the verification according to the NPT and the Additional Protocol;
b)     The manner in which the Security Council and Western powers agree to lift economic sanctions against Iran;
c)      Legal and moral commitment of all parties to confidence  building and good faith to the  text and spirit of the agreement;
d)     A genuine desire of the parties to peaceful settlement of all outstanding disputes between them.

Opponents of the nuclear deal fear that upon the conclusion of the agreement, Iran would have access to huge amounts of financial assets that will give it free hands to pursue its ambitious activities in the region. They further contend that Iran may follow suit the North Korean strategy and in due time may embark on building a nuclear capability as a deterrent force to defy Western pressure. Proponents however believe Iran should be given a chance to faithfully show that its activities are peaceful and pose no danger to peace and security of the world. The United States President Barrack Obama is among this latter group who despite domestic and outside pressure,   earnestly endeavors to reach a “good agreement” with Iran. Iran should benefit the occasion and avoid anything that could abort the deal and drag it to eventual Republican administration that could come to power after Obama.
Iran should be conscious of the fact that only portions of sanctions imposed upon it relate to its nuclear undertaking and in order to lift all sanctions it should come clean on questions related to human rights and other pending issues. For that matter, Iran should not hesitate to enter into direct dialogue with important world power on matters related to the Middle East, the Persian Gulf and international community as a whole. The West on the other hand, should be honest in dealing with Iran and must recognize this country as a regional actor to be taken into account in all matters regarding the region. /

[1] Iran had signed the protocol  in December 2003, but it stopped adhering to the measure in February 2006. Iran stopped applying the measure days after the IAEA referred the case to the UN Security Council.

[2] See: Fact Sheets & Briefs Press Contacts: Kelsey Davenport, (202) 463-8270 x102 , Updated: April 2015.

[3]Good faith is a fundamental principle of international law, without which all international law would collapse,” declared Judge Mohammed Bedjaoui during the first week of the PrepCom. Bedjaoui was President of the International Court of Justice when it gave its 1996 advisory opinion on nuclear weapons, and more recently, Algerian Foreign Minister. He delivered the keynote address to a conference, “Good Faith, International Law, and the Elimination of Nuclear Weapons: The Once and Future Contributions of the International Court of Justice,” held on 1 May at the Warwick Hotel in Geneva. Good Faith: A Fundamental Principle of International Law  John Burroughs, Lawyers’ Committee on Nuclear Policy . Civil society perspectives on the second session of the Preparatory Committee for the 2010 nuclear Non-Proliferation Treaty Review Conference 28 April–9 May 2008.

[4] The essence of the Additional Protocol is to reshape the IAEA's safeguards regime from a quantitative system focused on accounting for known quantities of materials and monitoring declared activities to a qualitative system aimed at gathering a comprehensive picture of a state's nuclear and nuclear-related activities, including all nuclear-related imports and exports. The Additional Protocol also substantially expands the IAEA's ability to check for clandestine nuclear facilities by providing the agency with authority to visit any facility, declared or not, to investigate questions about or inconsistencies in a state's nuclear declarations. NPT states-parties are not required to adopt an additional protocol, although the IAEA is urging all to do so.

[5] Nuclear Proliferation Treaty. The  International Atomic Energy Agency (IAEA) is responsible for validating that NPT states-parties are complying with the treaty, which bars all states except China, France, Russia, the United Kingdom, and the United States from acquiring nuclear weapons. India, Israel, and Pakistan have not joined the NPT and possess nuclear weapons. See Ibid.
[6] See: United Nations Charter Chapter VII Article 41 and 42

* Ali Asghar Kazemi is professor of Law and -International Relations in Tehran-Iran. Students, researchers, academic institutions, media or any party interested in using all or parts ‎of this article are welcomed to do so with the condition of giving full attribution to the author and the ‎Middle East Academic Forum. ©All Copy Rights Reserved.‎

No comments: