North Korea’s “Agreement” on Nuclear Disarmament

The International Herald Tribune has a copy of the deal reached in the six-party talks involving North Korea’s nuclear disarmament. Putting aside its content, as a treaty lawyer, my immediate question was what kind of commitment is involved? Is this deal intended to be a legally binding agreement or a statement of political commitment? The Vienna Convention on the Law of Treaties defines a treaty as “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 particular designation.” A quick read suggests that, notwithstanding its title as an “agreement,” this text won’t qualify. Sure, it’s a deal between states in writing (although it doesn’t appear that any of the participants signed it). The key question, however, is its intent to be governed by international law. Like earlier deals with North Korea, this text seems to recount merely what occurred during the talks and give an outline of what all the parties intend to do in the months ahead. [Update: The text was provided by the Chinese Foreign Ministry, so there is a possibility that the available copy is not the authentic English version, in which case it would be interesting to know if the authentic version uses exactly the same wording.]

Although I don’t think the participants intended to create a treaty here, I do wish the lawyers would pay a bit more attention to the wording. Unless you’re from the United Kingdom or one of its former colonies (which use “shall” when intending a legal commitment, and “will” when they don’t), use of the verb “will” can still imply a legal intent, particularly when coupled with “agreed” in an instrument titled “agreement.” Indeed, I would not be surprised if some were to argue that such language favors considering this text a treaty. So, in the future, can we all just “agree” to use different words. Indeed, as my former colleague Jack Beard says, if you need advice on the sorts of verbs to use without creating a treaty, there’s a seasonally appropriate song that’s full of them.