By Bahman Aghai Diba, PhD International Law
Islamic Republic of Iran and the 5+1 powers signed a document in Geneva on 24 November 2013 to start a new chapter in the nuclear case of Iran. The document has been called various things by various sources. The document itself has title of “Joint Plan of Action”. However, the question arises what is this document from legal point of view? Is it an agreement in the international law?
Iranian FM Mohammad Javad Zarif shakes hands with U.S. Secretary of State John Kerry
( Cover of Iranian magazine 40Cheragh)
The Iranian foreign minister, Mohammad Javad Zarif, in his report to the parliament of Iran ( Majlis), has referred to this document as “an agreement” and also “an understanding” and “an initial agreement”. The White House in its Fact Sheet about the Geneva talks of the 5+1 with Iran has called the document “a nuclear agreement which is a set of initial understandings”. US Secretary of State, John Kerry, has referred to it as “nuclear deal”. The Spokesperson of the EU’s top negotiator ( Ashton), has defined the Geneva document as “agreement.”
In order to know if the document, notwithstanding what is its name, is an internationally binding treaty or just a “non-paper” or a letter of inclination, the best place to go is Vienna Convention on the Law of Treaties. The Vienna Convention on the Law of Treaties dated 23 May 1969, which is famous as the “treaty of treaties”, in its opening part has offered a definition of treaty. Article 2 of this convention provides that : “ Treaty means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particulars.”
A look at the Geneva document between the concerned parties to the negotiations reveal that is has almost the entire elements of this definition for an international treaty. However, for political reasons back home, and in order to avoid further processing this document through the parliaments or similar institutions of the concerned parties for getting the much needed “ratification” of a treaty, they have come up with a formula as if this document is not a treaty subject to the international law of treaties.
This “behavior” has precedence at least for the Islamic Republic of Iran. In 1981, the hostage taking of the former American Embassy workers in Tehran by the so-called Iranian students following the line of Imam, resulted in negotiations that led to the conclusion of a treaty in Algiers for release of hostages and establishment of the Iran-US Claims Tribunal in the Hague ( still active). The parties, especially on the insistence of the Iranian side (as usual for the Iranian negotiators, they are more concerned about reactions to the work inside their own country rather than the parties that are facing), called the document “Declaration of Algiers.” This declaration was more treaty than many other treaties. It ended one of the most important cases of hostage taking in the diplomatic history, and gave birth to institutions in the international law that are still subject of discussions and research in the legal departments of the most important law schools of the world. The “declaration” was not taken to the parliaments of the concerned parties for ratification due to the political considerations. Later, in Iran many sources, including some officials of the regime, have called this declaration as a treaty worse than the Turkamenchai Treaty between Iran and the Russians in 1828 that resulted in separation of parts of Iran and annexation of those sections to the Russian territory.
It seems that the Geneva document has all ingredients of a treaty. Although it is simply called the “joint plan of action”, it stipulates important commitments by the two parties to the document and therefore it is an international agreement subject to the rules of the international law of treaties. Notwithstanding its “particular designation”, the Geneva document is an international treaty that requires ratification.
Bahman A Diba, PhD International Law of the Seas, is the author of several books. His latest books were published in 2011:
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