Professor Alexander Orakhelashvili
Ahead of the latest round of Iran-US negotiations, Vice-President JD Vance has stated that Iran must negotiate in good faith. That is no doubt true, but negotiating in good faith is a requirement that applies to all parties involved in negotiations.
The guidance on this could be found in the 1982 Manila Declaration on the Peaceful Settlement of International Disputes. The Declaration has been endorsed through a UN General Assembly resolution and hence it contains the guidance that has the status of customary international law (the detail explained here). The Declaration states that “States parties to an international dispute, as well as other States, shall refrain from any action whatsoever which may aggravate the situation so as to endanger the maintenance of international peace and security and make more difficult or impede the peaceful settlement of the dispute, and shall act in this respect in accordance with the purposes and principles of the United Nations.” (para. I.8) It further states that “Neither the existence of a dispute nor the failure of a procedure of peaceful settlement of disputes shall permit the use of force or threat of force by any of the States parties to the dispute.” (para. I.13). Finally, the Declaration states that “In the event of failure of the parties to a dispute to reach an early solution by any of the above means of settlement, they shall continue to seek a peaceful solution and shall consult forthwith on mutually agreed means to settle the dispute peacefully.” (para. I.8)
Typically, we can see from facts surrounding the negotiation process whether any State involved in it has negotiated in good faith. These facts occur against the background that, in nearly all cases, negotiation a lengthy, burdensome, irritating or even painful process at the end of which no one gets what they have exactly wanted. It requires a suitable state of mind at the outset and patient perseverance with it throughout the process. It is hard to get negotiations right and it is rather easy to undermine it.
Ahead of the negotiations, President Trump has announced that the US military would stay, “loading up and resting” to protect American interests, and to force a “real agreement” that Iran must comply with. A day later, he followed up with another message that the only reason why Iranians are alive is that they have to negotiate.
President Trump has said earlier that he does not need international law when he makes political decisions. At the same time, he has clearly wanted a binding agreement with Iran, which prospect is severely undermined by the nature of the President’s statements that are about threat and use of force against Iran. The Vienna Convention on the Law of Treaties states that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” (Article 52) As can be seen from this and other provisions of the Convention (such as Articles 44, 45 and 71), this is a case where a treaty is null and void as of the moment of its conclusion or intended entry into force. Unlike other cases where treaties are voidable, this is a case where a treaty is unconditionally null and void, and the legal system prohibits deriving any legal rights or consequences from it.
The US government persisted in the same attitude after the end of negotiations, and announced that the US forces will blockade Iranian ports in the Persian Gulf area, which is another pure act of aggression as defined by General Assembly resolution 3314. On the whole, evidence relating both to periods before and after negotiations makes it difficult to conclude that the US Government had ever intended to negotiate with Iran in good faith, or that it has even had the awareness about what negotiation in good faith means.
One would probably wonder about whether the Trump administration has received any legal advice on this matter. From what one could see from the outside in terms of consequent steps the US Government has taken, and also given that the State Department has been placed in a somewhat rearguard position in this negotiation process with Iran, that seems to be rather unlikely.