CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … Office 3 , the international community in general, as well as academia. Evidence for the latter could be found by the tacit complacency with the official sources and surprising lack of serious analysis on the matter in published works or experts’ discussions. This article aims to put that conviction to a test and provide some alternative views. This will be done by analysing provisions of the Vienna Convention on the Law of Treaties (VCLT) 4 , Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (VCLT II) 5 , existing customary international law and decisions by international courts. 2. The VCLTs, customary international law, or both? The VCLTs famously provide for the definition and constituent elements of a treaty 6 and is thus where this article would normally start. However, the relationship between the parties to the JCPoA and the VCLTs must be examined first and whether the VCLTs could be applied to the question at hand at all. The JCPoA was concluded between Iran and the so-called E3/EU+3, which is a group comprised of “China, France, Germany, Russia, the United Kingdom, and the United States of America, with the High Representative of the European Union for Foreign Affairs and Security Policy” 7 . Rather obviously, one of the these is not like the others. As treaties concluded between States and International Organisations (IOs) or between IOs are nothing new 8 it is unclear why the drafters of the JCPoA felt the need to identify the European Union (EU) by the officeholder representing it, while none of the other parties were similarly identified. An obvious assumption would be the legal status of the EU in the international community but trying to circumvent potential issues associated with that in such a manner while still identifying the EU directly in the annexes to the JCPoA seems rather inconsistent. Considering the wording of the recital listing the entities comprising the E3/EU+3, it might be assumed that the EU was included as a mere observer, rather than a party to the JCPoA, but again having in mind the substantive obligations the JCPoA imposes on the EU such argument would be hard to make, given that entities are only bound to the treaties they are parties to 9 . Both the VCLTs and customary international law provide for the possibility of 3 TALMON, S. ‘Germany finally comes clean about the legal status of the JCPoA: no more than soft law’ (German Practice in International Law) , accessed 15 April 2022. 4 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). 5 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (21 March 1986) UN Doc A/CONF.129/15 (VCLT II). 6 VCLT (n 4) Art. 2(1)(a); ILC, ‘Report of the of the International Law Commission on the work of its 18 th Session (4May – 19 July 1966) UNDoc A/CN.4/191, p 187; VCLT II (n 5) Art. 2(1)(a); ILC, ‘Report on the International Law Commission on the Work of its 34 th Session (3 May – 23 July 1982) UN Doc A/37/10, p. 17. 7 JCPoA (n 1), preambular recital i. 8 Examples of such treaties include the Agreement between the People‘s Republic of Bulgaria and the International Atomic Energy Agency for the application of safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons (adopted 21 January 1972, entered into force 29 February 1972) 872 UNTS 133, as well as every other safeguards agreement the Agency has concluded with States. 9 Pacta tertiis nec nocent nec prosunt ; Case concerning certain German interests in Polish Upper Silesia (Germany v Poland) (Merits) PCIJ Reports Series A No 7, pp. 28–29; Case concerning the Factory at Chorzów (Germany v Poland) (Merits) PCIJ Reports Series A No 17, p. 45; Advisory Opinion on Customs Regime between Germany

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