The Necessity of Derogation Clauses in A Final Deal

Sunday, May 11, 2014

Kaveh L. Afrasiabi

As the negotiation process toward a final comprehensive agreement between Iran and the world powers continues, the question of what this agreement would consist of and its legal status from the point of view of international law looms large.

Viewed first and foremost as a "counter-proliferation" document by the Western governments, on Iran's part the emerging final document is viewed differently, that is, primarily in terms of securing the rights and interests of Iran in a "just bargaining" within the framework of Non-Proliferation Treaty and its familiar mix of rights and obligations.

The interim agreement reached in Geneva last November, which is at mid-point of implementation now, provides a rudimentary outline of the final deal by, for example, raising the prospects for comprehensive lifting of UN, US, and European sanctions on Iran in return for specific nuclear concessions on Iran's part, such as agreeing to subject Iran's uranium enrichment right to multilateral negotiations. Since last November, we have seen the attempt by certain governments to revise their interpretations of the deal, such as by denying that it recognizes Iran's enrichment rights when, in fact, the text repeatedly refers to it and thus confirms Iran's interpretation of the "Joint Plan of Action" that, irrespective of the peculiar title, fits the generic description of a treaty, albeit a temporary one (like the fisheries agreements registered at the UN).

Learning from the long history of international treaties, it seems necessary for Iran to insert some "derogation clauses" in the final agreement, in order to protect its national interests. The "derogation clauses" are often referred to as "escape clauses" commonly found in arms control, human rights, environmental, and other international treaties, both multilateral as well as bilateral. Case in point, Article XXI of GATT (General Agreement on Trade and Tariff) stipulated "that the Agreement is not to be construed to prevent any contracting Party from taking any action 'which it considers necessary for the protection of its essential security interests." Another example is the International Convention on Civil and Political rights that allows a state temporarily to deviate from the provisions of the treaty the state is a party to during a time of national emergency, a luxury used by, among others, United Kingdom in its fight against Northern Ireland terrorism and by Turkey during the 1970s, in its fight against Kurdish terrorism. 

Generally, the derogation provisions require to be consistent with other obligations under international law and are considered as flexible tools that give some leeway to the contracting parties, who may refuse to enter a treaty in the absence of such clauses. The treaty provisions that permit derogations do not exist in vacuum. Rather, they operate in tandem with the perceptions of opportunities, risks and uncertainties of international affairs. In the annals of international treaties, these clauses reflect changes in a treaty's obligations or shifts in the geostrategic context in which it is embedded, creating the space for re-negotiating or amending its provisions, depending on the intra-treaty or extra-treaty mechanisms. Bottom line, derogations are a rational response to exigent circumstances and enable the negotiators flexible tools that, in turn, could entail deeper obligations that might not be attainable without such provisions.

With respect to the negotiation of a long-term nuclear agreement between Iran and the "P5 +1" powers, it goes without saying that Iran seeks to maintain a "win-win" approach that reflects a flexible but principled disposition. This should not be misinterpreted by any one as a sign of weakness, but on the contrary, the very strength of Iran's position that is founded on the amalgamation of interests, rights, and obligations. At the same time, given the central importance placed by the Western powers on using the potential agreement to guarantee the peaceful nature of Iran's nuclear program, it is vitally important to connect any long-term Iranian non-proliferation commitment and or pledge to the regional environment. 

Hypothetically speaking, Iran should reserve the right to reconsider its pledges if there is credible threat posed by signs of nuclear proliferation in Persian Gulf. This is important in the light of close Saudi Arabia-Pakistan ties and the possibility of "nuclear sharing" between the two governments. Such a development would directly affect Iran's calculations and, without doubt, influence Iran's estimate of threats to its national security. Therefore, it is important to insert a derogation clause in the final agreement that clearly connects it to a nuclear-free zone in Persian Gulf. Without such clauses, Iran would bind itself, on paper at least, to certain commitments and postures that might be unsustainable in future scenarios like the one just cited, whereas what is required is to craft an agreement that to the extent possible is fitted to the exigencies of the regional geostrategic environment.

*Kaveh Afrasiabi, PhD, is the author of several books on Iran’s foreign policy. His writings have appeared on several online and print publications, including UN Chronicle, New York Times, Der Tagesspiegel, Middle East Journal, Harvard International Review, and Brown's Journal of World Affairs, Guardian, Russia Today, Washington Post, San Francisco Chronicle, Boston Globe, Mediterranean Affairs, Nation, Telos, Der Tageszeit, Hamdard Islamicus, Iranian Journal of International Affairs, Global Dialogue.

Key Words: Derogation Clauses, Final Deal, Non-Proliferation Treaty, Iran, P5+1, Flexible Tools, Afrasiabi

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*Photo Credit: Fars News Agency

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