Though a few voices have been heard contending that we should denounce the Iranian hostage agreements as made under duress, former president Carter, and apparently the Reagan administration as well, seem to feel that such a renunciation would violate our "national honor."
I find it absurd to wrap these extorted documents in the flag of national honor, since, under international law as expressed in Article 52 of the Vienna Convention on the Law of Treaties of 1969, they are "void" because they were "procured by the threat or use of force." The precise language is important; the agreements are not "voidable" but "void," which does not leave the issue of validity to the decision of the president.
Unless he is prepared to set an unwise precedent and undercut a solemn multilateral convention that has become customary international law, President Reagan has no option but to acknowledge the invalidity of these agreements.
Such an acknowledgement would not, of course, preclude him, after careful study of all aspects of the problem, from waiving that illegality while emphasizing that that waiver was no precedent for the future.
Still, given the righteous anger of Americans, the new president may not wish to assume the political burden of a unilateral waiver and, in that case, might consider other possible solutions. One alternative might be for the president to announce that, though renouncing the agreements as invalid, he was referring final decision on the issue of validity to the International Court of Justice, which might or might not be prepared to take jurisdiction. In that way he could blunt the edge of accusations of arbitrary, arrogant and imperialistic action that would almost certainly be forthcoming, particularly from some sectors of the Third World.
Though the question needs careful examination of its international law implications and equally careful scrutiny of its political consequences, the suggested procedure might help relieve the sense of outrage of Americans as they hear new revelations of the brutalities and indignities inflicted on the hostages. After all, the International Court has already considered the hostage issue and, on May 24, 1980, handed down a six-point decision ordering that Iran immediately release all the hostages, warning it not to put them on trial and holding Iran liable to pay reparations for its actions. Although Iran boycotted those court proceedings, our government insisted that Iran was bound by the decision.
If such a course is followed, the problem must be sensitively handled so as not to call into question America's good faith. In particular, President Reagan should make it crystal clear that, invoking Article 52 of the Vienna Convention of the Law of Treaties of 1969 and declaring the agreement internationally invalid and not binding on the United States, he was not in any way undercutting the principle that international agreements are between states and not governments and that a new administration is fully bound by the formal undertakings of its predecessors. Thus, to the extent possible, expressions of approval of the course outlined should be obtained from Carter administration officials who participated in the negotiations.
If the International Court should accept jurisdiction and decree the agreements to be invalid, that would not mean that our government must reject unfulfilled aspects of the agreements that might be beneficial to our own interests. Moreover, we would have to consider carefully the effect of renunciation on the escrow arrangements and the repercussions in the financial community. But we should certainly repudiate those provisions that preclude the hostages and their families from asserting compensation claims against Iran for the outrageous treatment they received.
More difficult to appraise than the legal and financial aspects of the proposal would be the effect on our international interests. Would such a qualified renunciation penalize the more rational elements of a current Iranian government and play into the hands of the fanatical mullahs? What would be the reaction in Algeria, which has performed an invaluable role as go-between, yet is traditionally no friend of the United States? Would the Algerians feel betrayed? Finally, what would be the impact of our renunciation on America's international reputation?
Though we could not wholly restrain adverse reactions by even the most careful presentation of the American case, we should never be a complaisant prisoner of other nations' opinions. The world must not be allowed to forget that the taking of hostages was a violation of the right of legation honored by the Vienna Convention on diplomatic relations of 1961. It was -- as the International Court has already determined -- a flagrant breach of international law. Since allowing the Iranians to benefit from such brutal, lawless acts would encourage its imitation by others elsewhere, all nations engaged in international diplomatic intercourse have a vital stake in the president's reactions. To let Iran off not merely scot-free but actually profiting from its obscene conduct would establish an odious and dangerous precedent.
Crime should not pay, and we should not collaborate in making it pay.