Opening the 'Black Box' of Geneva Agreement’s Legal Status

Sunday, November 30, 2014

Kaveh L. Afrasiabi           

The latest 7-month extension of the Geneva “interim” agreement has infuriated some hawkish members of US Congress, who have threatened to pass new Iran sanctions bills in the near future. Should this happen, then the US lawmakers would be putting the US at odds not only with Iran but also with the international norms and laws, notwithstanding Article 18 of the Vienna Convention on the Law of Treaties which requires a state “to refrain from acts which could defeat the object and purpose of a treaty before its entry to force by that state.”             

To elaborate, the Geneva agreement of November 2013 fits the description of an international treaty irrespective of its title “Joint Plan of Action.” This interpretation runs contrary to what has become a self-evident truth particularly in the West, namely, that the Geneva agreement is not a treaty at all but rather a ‘memorandum of understanding’ among several parties and is therefore beyond the pale of the Vienna Convention. That common interpretation relies on the fact that neither Iran nor any of the “Iran six” nations have so far bothered to register the Geneva agreement at the United Nations, in the light of Article 102 of the UN Charter which requires the registration of “every treaty and ever international agreement.” In contrast, an MOU (memorandum of understanding) is not required by the Charter to be registered in the UN. The rules of interpretation in international law may come handy here. Article 31 of the Vienna Convention states: “A special meaning shall be given to a term if it is established that the parties so intended.” It has been noted that “one should not assume that the name given to the agreement indicates its status as a treaty or an MOU (Memorandum of Understanding.”(1) Such insights from the international law experts remind us that the less than formal designation of the nuclear agreement (as a joint action plan) did not necessarily make it of less importance. There is no signature on the original agreement, which has been interpreted by some observers as yet another sign that it is not a treaty, but such interpretations ignore the fact that signature is not a prerequisite and a treaty does not have to be signed.  Another common error is that since the agreement is “interim” and temporary it cannot fit the description of a treaty. But there are several examples of time-bound treaties, such as the fisheries agreements that are registered at the UN, one example being the 1977 “interim agreement” fisheries dispute between Iceland and the United Kingdom.

Another misconception is that the agreement is in force only for those states which have consented to be bound by it. The problem with this interpretation is that it oversimplifies the agreement, between Iran and the five permanent members of UN Security Council plus Germany, which in turn made it more than a bargain between Iran and these powers, but also binding on the wider global community (Ergo Omnes, valid for all the world).Thus, irrespective of its appearance as a “non-legal document,” intended to speed its implementation without the cumbersome requirement of parliamentary approval, the Geneva agreement is governed by international law by the simple fact that it fits the generic description of a treaty, according to which any document entailing binding commitments by states is a treaty.  This agreement is certainly more than an ordinary traite-contrat and is best described as a ‘soft treaty’ or proto-treaty, that is, an agreement to conclude a treaty (Pactum de Contrado). It is a binding legal instrument, irrespective of the negotiating parties’ probable intention to insulate it from international arbitration by setting up an inter-governmental “joint commission” devoted to dispute resolution, and applies to other (third) states, as well as the IAEA (International Atomic Energy Agency) and sets implied limits on how far those states could go in deviating from the UN-imposed sanctions on Iran and for how long. In other words, it fits the description of a significant vehicle for the conduct of relations between states directly or indirectly involved in the agreement, thanks to its regulatory character as a ‘soft’ treaty. In light of the above-said, the US government is legally bound by the terms of its obligations under the Geneva agreement and any violation of those obligations by the US government as a whole or by any branch would implicate the US in a violation of international law.


(1) Anthony Aust, Modern Treaty Law and Practice (Cambridge University Press,
2000). Also, Theory of International Law at the Threshold of the 21st Century," edited by P. Koojmans and J. Makarczyk (Brill Academic Publishers, Dordrecht 1995)

*Kaveh Afrasiabi, PhD, is the author of several books on Iran’s foreign policy. His writings have appeared on several online and print publications, including UN Chronicle, New York Times, Der Tagesspiegel, Middle East Journal, Harvard International Review, and Brown's Journal of World Affairs, Guardian, Russia Today, Washington Post, San Francisco Chronicle, Boston Globe, Mediterranean Affairs, Nation, Telos, Der Tageszeit, Hamdard Islamicus, Iranian Journal of International Affairs, Global Dialogue.

Key Words: Geneva “Interim” Agreement, Legal Status, Iran, P5+1, US Congress, Iran Sanctions, Vienna Convention on the Law of Treaties, Joint Plan of Action, UN Charter, Memorandum of Understanding, International Atomic Energy Agency, Afrasiabi

More By Kaveh L. Afrasiabi:

*Iran Should Accept US Presidential Waiver:

*Another Missed Opportunity:

*Iran Nuclear Talks and US - India Deal: A Comparison:

طراحی و توسعه آگاه‌سیستم