The Strong Do What They Can and the Weak Suffer What They Must—But Must They? Fairness as a Prerequisite for Successful Negotiation (Benchmarking the Iran Nuclear Negotiations)

Abstract

The multilateral negotiations on Iran's nuclear programme finally came to a conclusion on 14 July 2015 after over 10 years of difficult talks. The negotiations were accompanied by military and economic coercion against Iran. Such use of coercion in negotiations distorts the rationality of bargaining from the very beginning and the upshot is that any deal is less than optimal. International law has attempted to introduce fairness into bargaining by outlawing coercion. However, the present international reality is such that coercion can be used relatively unchecked. Treaty law prohibitions are dependent on the UN Charter, whose position on economic coercion has been unclear from the very outset. Also, sanctions imposed by the Security Council are applied indiscriminately in negotiation settings, without any inquiry into their leverage, due process or their effect on the principles governing the negotiation. This leaves much to be desired in terms of fairness. The latest case law of the Court of Justice of the EU with regard to procedural justice in the imposition of sanctions is a concrete step towards the fair application of the law, albeit retroactively. Proactive steps for fairer negotiation can be achieved within the existing normative frameworks, thereby contributing to peaceful conflict resolution through agreement. Grass-roots specialist discourses, together with the observance of scientific conventions and the principle of inclusion, the General Assembly’s norm-consolidating debates and a call for the Security Council’s permanent members to act responsibly as Protecting Powers for the purposes of peace and security, are all ways of enhancing fairness. The fundamental factor for achieving change is the desire to be ruled by right rather than by might.