They started it and, may heaven be my witness, one of these days we are going to finish it.
Don't wave this piece of paper around. Concessions extracted under duress are null the instant the duress is gone, and you all in the Theocracy know all about that.
The day will come.
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Concessions extracted under duress are null the instant the duress is gone
Not that I don't agree with your sentiment, but does that argument stand up in any globally-recognized court? I mean, in order for diplomatic solutions to have any kind of staying power, I'd think that the structure they're built on has to be (theoretically, at least) recognized, acknowledged as unbreakable and enforceable; otherwise, agreements made by honest and honorable individuals can and will be easily broken by the dishonest self-serving majority.
It is a concept of contract negotiation being trumped by criminal conduct, but it gets a lot more complex when you apply it to States. Basically, unless the agreement has agreed mechanism for verification and penalty, nothing stops a treaty-breaker besides reputation. The agreement has to be a Treaty in the first place to even meet that standard. If the treaty has a withdrawal clause, it ceases to be binding even if it once was, once those conditions are met.
In a lawyerlike moment regarding the 1981 Algiers Accords, I would point out that these were "Accords", not a "Treaty". Accords are arguably statements of diplomatic agreement that must be followed up by formalization, not formal treaties.
In the case of a failure to protect Diplomatic Persons and Property, that is a violation of the Vienna Convention on Diplomatic Relations (1961), which is a Treaty and is considered part of the body of "international law". The following Convention (1963) on Consular Relations is the modern basis of extra-territoriality of Embassies. Violation of Persons and Property under those two definitions are considered aggression and invasion respectively, violation of sovereignty and as such, rightful recourse includes a state of hostilities.
I am not aware of proportionality being a test beyond that of general course in war, nor can I imagine that reciprocity in kind would stand a legal challenge. It is one of the terrible ironies that it is less "correct" to kidnap diplomats than it is to militarily attack other facilities of state during open hostilities.
I am not sure it has ever been tested in the case of a secret linkage *in a treaty* extracted under a circumstance of a public failure to protect diplomatic persons and property. Even in open war, diplomatic repatriation was often achieved.
Note: The question of treaties being binding is answered under U.S. law by the ratification protocol specified by the Constitution. That requires "advice and consent" of the Senate. Ratified Treaties become U.S. law. On an international basis, the VCLT (1969, entered force 1980) is the guiding document.
(Personal Note to mr. bill: That was a great question, esp. given how the world community is moving toward a system of adjudication in International Law. Let me see if I can get one of my more legally-trained associates to wander in here and poke holes in what I have said, just to keep me honest.)
damn-- you guys are way above my head!
give me some time here, LDG...
I need to catch up!
((encouraging smile))
Hurry up then, Susan, for I will shortly be posting a critique from an even-more-legally-competent associate of mine.
Given the difficulty in registering as a commenter here, a friend of mine sent me this by private message to be posted here:
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A treaty (or in this case, an "accord") is basically a contract between two or more nations, and as such is subject to Oliver Wendell Holmes' famous "bad man" theory of contracts. According to Holmes, a bad man views a contract he has executed and determines whether it is cheaper/more efficient/more profitable for him to breach the contract or to perform it, and either performs or breaches the contract based on that determination.
Consequently, in this case (as in the case of most treaties) the American government must determine whether the cost of breaching the Algiers Accords exceeds the supposed benefits of performing its terms. America has, of course, already received the primary benefit of the Accords--the return of the hostages. So, one could argue that the cost of abrogating the remaining obligations under the Accords--degradation of international reputation, distrust among other nations concerning America's willingness to abide by current and future treaties--might well be worth refusing to perform those remaining obligations. After all, Iran is deemed to be a "rogue" nation by most Western states and, thus, breaching a treaty with it would not likely have many, if any, repercussions among America's traditional allies.
On another note, while it is true that coercion and duress are defenses to performance of private contracts, these defenses break down on an international scale. A good example would be just about any peace treaty imposed by the victors of a war (e.g., Versailles and the peace treaties with Italy, Germany and Japan ending WWII). Obviously, the conquered nations act under coercion and duress in executing those treaties, but are nevertheless held to their terms, usually at gunpoint.
In short, the decision whether or not to abrogate an international treaty isn't so much a legal question as a pragmatic one.
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Thank you, compadre. Well said, especially the caveats on those treaties negotiated at the end of hostilities ("peace treaties").
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