CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … however it must be noted that the JCPoA contains the word “will”, as a verb indicating commitment, 401 times and the world “should” mere 8 times. Authors have classified similar words as used either in a treaty or in a legally non-binding political commitments 55 , using the same logic the JCPoA is significantly closer to a treaty than non-legally binding political commitment. It must be noted though, that originally cited publication is only indicative and intended as a reference guide for government employees in a particular regional organisation 56 without any claims for presenting an authoritative exhaustive list of words used in treaties or non-binding commitments. A much more definitive support for the level of commitment between the parties to the JCPoA, as evidenced by the verbs in its text, is provided by the fact that similar logic was used by the ICJ in its Aegean Sea Judgment 57 , where the Court has found that the verb “decide” is indicative enough of commitment between the parties before it, rather than a pure desire to negotiate 58 i.e., that the instrument the Court analysed is a treaty rather than a mere political non-binding agreement. Contextually, there is one obvious indicator that the parties to the JCPoA had a clear intention to commit and it is the Dispute Resolution Mechanism 59 . Although the operative pArt. of the JCPoA starts by clarifying that all measures to follow are voluntary 60 non-performance of said voluntary measures is subject to referral to a Dispute Resolution Mechanism, which if does not produce satisfactory results could be escalated even further and be referred to the United Nations Security Council (UNSC) 61 . It is then impossible to argue that the parties to the JCPoA undertake purely voluntary measures, especially considering that it is well established general principle of law that no entity could be held liable for action or omission of an action based on legal obligation that had not existed at the time said action or inaction has occurred 62 . Thus, the fact that the commitments the JCPoA provides for in its annexes are classified as voluntary is negated by the fact that they are subject to a judicial review, albeit from an UNSC sanctions-enforced ad-hoc adjudication panel. From that it could be concluded that the JCPoA satisfies the criteria in question. A treaty must be concluded between States, States and IOs or between IOs The VCLT and the ILC Draft Articles that precede it provide that a treaty could only include States in its membership 63 , while VCLT II and the corresponding ILC Draft Articles that precede it provide that States and IOs could be parties to a treaty 64 . As it was established above that all four instruments codify already existing customary international law on the matter the criteria that needs to be met is whether the JCPoA has States and IOs as its parties. Seven of the eight parties to the JCPoA, namely China, France, Germany, Iran, Russia, the UK, the USA are undoubtedly States with well-established statehood and enjoy universal 55 HOLLIS, D. B. (n 50), p. 28. 56 HOLLIS, D. B. Final Report on Binding and Non-Binding Agreements , OEA/Ser. Q CJI/doc. 614/20 rev.1 corr.1 (3-7 August 2020) (Final Report), p. 12. 57 Continental Shelf Case (n 52). 58 Ibid. , p. 40, para. 98. 59 JCPoA (n 1), recitals 36–37. 60 Ibid. , p. 11. 61 Ibid. , recital 37. 62 Nulla poena sine lege .

63 VCLT (n 4), Art. 2(1)(a); ILC Report (n 22), p. 187, Art. 2(1)(a). 64 VCLT II (n 5), Art. 2(1)(a); ILC Report (n 27), p. 17, Art. 2(1)(a).

257