“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. https://www.armscontrol.org/factsheets/IAEAProtocol
[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. http://lcnp.org/wcourt/BurroughsNiRarticle_May2008.htm
[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.
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