Post by Sadie Blanchard, Research Fellow Yale Law School
In its penultimate session of the spring, the Seminar in Private Law at Yale Law School considered the negotiations toward the Iran nuclear deal. Catherine Ashton, former European Union foreign minister who was a key participant in the negotiations, spoke together with Philip Bobbitt of Columbia Law School.
Ashton discussed the dynamics of the negotiations and the decisions about structuring them that were, in her view, critical to their success. Among them was a “noises off” policy instituted early by the delegates: they mapped out the issues that had to be part of a deal and excluded other considerations from being raised in the negotiations. That policy served to prevent future derailment of the critical negotiating points.
Philip Bobbitt spoke about current developments that are changing the environment for arms control and thus impact our assessment of the Iran nuclear deal. Because of innovation in remote sensing and the accuracy of targeting, small nuclear arsenals are now vulnerable to capture or diversion by sub-state groups and to destruction by the United States. These developments challenge the stalemate that has characterized nuclear deterrence to date. Much of the value of the deal, Bobbitt said, lies in the time it buys to calmly adapt to these developments.
Daniel Markovits remarked that the use of the “noises off” technique is surprising because making side payments is one way to open up a contracting space. The “noises off” rule sought to close the contracting space by avoiding side payments. What features of this negotiation meant that side payments would be harmful rather than helpful? Ashton and Bobbitt agreed that side payments would have threatened the solidarity between the P5+1 that made these negotiations successful.
A student asked about the agreement’s dispute resolution mechanism, which requires a party that believes there has been significant nonperformance to go to dispute resolution before terminating the agreement. Proponents argue that this mechanism is important to prevent the deal from being undone at the slightest provocation. Opponents argue it will allow Iran to move toward a bomb by breaching the deal incrementally while maintaining plausible deniability. Bobbitt responded that this is a legitimate concern but that even such a scenario is preferable to no agreement because it buys time to persuade Iran not to develop a bomb or to respond to a nuclear-armed Iran. Ashton said that the issue of dispute resolution was important because there needed to be time to rectify problems rather than allowing the agreement to fall apart easily.
A student asked whether we should think of an authoritarian state as a single unit or something more complicated. Markovits observed that while the decisionmaking orders of constitutional states comprise defined areas of freestanding authority, those of non-constitutional sates do not. When negotiating with a constitutional state, getting your counterpart, as an agent of the state, to agree increases the likelihood of getting the agreement to stick. That is less clearly the case with non-constitutional states. Bobbitt viewed the question as implying that strategy is a cultural artifact. Even when the closest of allies discuss common strategic considerations, they encounter differences in how they understand language and predict outcomes. However, becoming an expert in the culture and politics of the other party does not resolve that problem. Regional experts are prone to allowing decisions about how to behave toward another nation to become overly determined by their understanding of that nation’s culture. They tend to underestimate the flexibility of other nations or to be overconfident about their ability to predict future behavior based on past behavior.
Other topics discussed included the hope that the negotiations and agreement would be a first step toward Iran’s reintegration into the international community, whether the negotiations taught any lessons that could be used to structure a negotiation with Syria, and the role of trust and verification in this agreement and in low-trust negotiations generally.
The Iran agreement raises a question posed during the session on investor-state arbitration: on what basis can a government bind a sovereign to an outward-facing obligation, where we understand the sovereign to be the people of a nation who authorize the government to act as their agent? The question was inspired by Hume’s argument that a promise derives its binding force from a social convention of promise keeping. Putting aside for the moment the principal-agent aspect of the question, if we accept Hume’s view, we might ask to what extent such a convention exists on the plane of interactions involving sovereigns, especially outside of established sites of cooperation such as the United Nations or the World Bank.
As a starting point, pacta sunt servanda (“agreements must be kept”) is a foundational principle of customary international law that no state openly denies. There is, however, a school of thought that claims that states comply with their international obligations only when doing so is in their interest. Some instantiations of that view imply that pacta sunt servanda is not an operational principle of international relations (and, relatedly, that there is no international law as we usually understand law). We might also wonder whether so-called “rogue states” such as Iran sit in some sense beyond the reach of the principle of pacta sunt servanda, because the society of states will tolerate the breaking of promises to such states or does not believe that such states respect customary international law, or both.
Hume’s reasoning suggests, however, that binding promises are possible even by and to sovereigns whose membership in the society of states is in question and even without accepting that customary international law has legal force. While he views social convention as the source of promise’s binding force, he does not require the convention to have existed before the relevant promise is made or to be explicitly adopted. In his view, the convention of promise keeping arises from a shared understanding that promise keeping will benefit the relevant actors: the parties are bound by “a sense of common interest . . . which” each “remarks in his fellows, and which carries him, in concurrence with others, into a general plan or system of actions, which tends to public utility.” It thus seems that Hume’s convention of promise-keeping can emerge simultaneously with the undertaking of a first-order obligation, when the parties involved see that it is in their common interest to bind themselves despite the possibility that future circumstances will make breaking the promise individually rational.
These reflections raise more questions than they answer, but the long-running multiparty negotiations toward the Iran deal might be seen as an effort to cultivate Hume’s “sense of common interest.” Ashton described how a measure of trust was built incrementally through the keeping of promises during the negotiation process, such as promises not to leak information and to seek compromise in good faith. The idea of cultivating a sense of common interest also appears in Ashton’s characterization of the negotiations and the agreement as threshold events for reintegrating Iran into the community of states.
Turning briefly to the principal-agent problem, a recurring concern is whether governments have been faithful agents in making international agreements. Are governments motivated by a “sense of common interest” among their social group, which is distinct from that of their principals? We might be skeptical of binding international obligations if we distrust national or transnational elites, especially where we believe international promises are harder to break than domestic promises. This is an animating concern of critiques of international pacts ranging from investor-state arbitration agreements to the Iran deal to environmental treaties to free trade agreements.
My next blog post will cover the Seminar’s final session for this spring. In that session, which took place last week, we considered dispute resolution in universities. Mary Rowe, who was Ombuds at MIT for 40 years and now teaches at MIT’s Sloan School of Management, spoke alongside Jonathan Holloway, Dean of Yale College.