CYIL vol. 13 (2022)

LYUBOMIR L. SAKALIYSKI CYIL 13 ȍ2022Ȏ of international law, 46 it could easily be concluded then that the qualifier “international” is added for nothing more than to reference said two elements and for flow of language. What constitutes an agreement is much more widely discussed and hence a working definition could be found in published works of various academics. Some seem to agree as to the number of constituent elements of an agreement, as well as to the elements themselves, despite the fact that each author tries to name them differently. One such suggestion is that an agreement is a culmination of communication 47 and expectation of future behaviour 48 ; another that an agreement is consisting of the concrete (in written form) meeting of the minds ( synallagma) between the parties 49 , a third suggestion points towards “mutuality and commitment” 50 , while another concentrates on consensus ad diem 51 . When faced with the question whether a certain text is an agreement the ICJ has determined that an analysis must be performed “above all to its actual terms and to the particular circumstances in which it was drawn up” 52 . The Court then continued this logic in another judgment by noting that an agreement not only summarised points of agreement but consists of commitments the parties have given their consent to. 53 Combining these it follows that an agreement necessitates two or more parties that have communicated their desire to consent on specific expectation of future behaviour to which they intent to commit. Having just made yet another attempt of defining what constitutes an agreement and consequently an international agreement, attention must be turned to whether the JCPoA fulfils this proposed definition or not. It was already established above that there are more than two parties to the JCPoA 54 , hence there is no use to analyse the matter any further other than to note, in the spirit of academic consistency, that the element of two or more parties has been sufficiently satisfied. By virtue of the JCPoA being in written form, as discussed below, the element of communication could similarly be considered sufficiently satisfied. The next issue is whether the parties to the JCPoA have consented on specific expectation of future behaviour. Expression of consent to be bound will be analysed further below, after the elements of a treaty are given the necessary attention. Thus, what is left is whether the parties have expectation of future behaviour as well as whether they intent to commit to said expectation. The presence of expectation of future behaviour could easily be determined by reading through the text of the JCPoA and its annexes, as they provide for numerous obligations that modify prior State behaviour in a manner expected by the other parties. The intention of the parties to commit to the agreed expectations of future behaviour must be approached in a two-fold manner – textually and contextually. Traditionally, a very detailed textual analysis is necessitated in order to establish whether the required level of certainty is present. This is beyond the scope of this article, 46 ILC, ‘First report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur, UN Doc A/CN.4/144, p. 32, para. 2. 47 Klabbers (n 44), pp. 52–53. 48 Ibid. p. 53. 49 Villiger, M. E . (n 37), p. 77. 50 HOLLIS, D. B. ‘Defining Treaties’ in Duncan B. Hollis (ed.), The Oxford Guide to Treaties (2 nd ed OUP, Oxford 2020) p. 21. 51 WIDDOWS, K. ‚What is an agreement in international law?‘ (1979) 50 BYBIL p. 119. 52 Aegean Sea Continental Shelf (Greece v Turkey) , Judgment , ICJ Reports 1978, para. 96. 53 Case concerning maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v Bahrain) Jurisdiction and Admissibility ICJ Reports 1994, para. 25. 54 JCPoA (n 1), preambular recital i.

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