CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … Having established that both VCLT and VCLT II do not apply, it must be noted that nonetheless they could be used to analyse whether the JCPoA is in fact a treaty or not. This is due to the fact that the VCLT was a direct result of the work carried out by the International Law Commission (ILC) in relation to the codification of the already existing customary international law on treaties 21 , resulting in the ILC’s Draft Articles on the Law of Treaties 22 and later, as mentioned, – the VCLT. It is well known that substantial parts of the VCLT are a reflection of existing customary international law on treaties, particularly so in relation to the definition of a treaty, which is of importance to this paper. This was established by the International Court of Justice (ICJ, the Court) in its Cameroon v Nigeria Judgment 23 where the Court has found that that the definition of a treaty in the VCLT is a reflection of customary international law and the fact that the parties to the case before the Court are State parties to the VCLT is beneficiary, but irrelevant due to the universal application of customary international law 24 . The same is true for the VCLT II, but by virtue of not being in force it does not enjoy the certainty of interpretative judgments by international courts. Thus, some attention must be given to it. For the purposes of this paper the only difference of concern between the two conventions is that VCLT II includes in its definition of a treaty the possibility of having IOs parties to treaties in addition to States, which is not the case with the VCLT. Therefore, when examining the work of the ILC in search for the origins of the VCLT II this element could be considered a clear indicator. The inclusion of IOs in the codified law of treaties could be traced back to the ILC’s intention “to include the entire subject of treaties within the orbit of codification” 25 . The follow-up to this intention is evidenced by the fact that originally the Draft Articles on the Law of Treaties included a definition of a treaty that: “covers only international agreements made between “two or more States or other subjects of international law”. The phrase “other subjects of international law” is designed to provide for treaties concluded by: (a) international organizations, (b) the Holy See, which enters into treaties on the same basis as States, and (c) other international entities, such as insurgents, which may in some circumstances enter into treaties.” 26 After the VCLT came into force the ILC continued working on the issue and ultimately produced another set of draft articles – Draft Articles on the Law of Treaties between States and International Organisations or between International Organisations 27 . Following the established path, said Draft Articles were the basis for the VCLT II and included IOs as 21 ILC, ‘Report of the International Law Commission on the Work of its 1 st Session (12 April – 9 June 1949) UN A/CN.4/13 and Corr. 1-3, pp. 280–281, paras. 15 (20), 16 (10), 20 (1). 22 ILC, ‘Report of the of the International Law Commission on the work of its 18 th Session (4 May – 19 July 1966) UN Doc A/CN.4/191, p. 187. 23 Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) Judgment ICJ Reports 2002. 24 Ibid , para. 263. 25 ILC, ‘Report of the International Law Commission on the Work of its 1 st Session (12 April – 9 June 1949) UN Doc /CN.4/1/Rev.1, p. 52, para. 91. 26 ILC, ‘Report of the International Law Commission on the Work of its 14 th Session (24 April – 29 June 1962) UN Doc A/5209, p. 162, para. 8. 27 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.

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