CYIL vol. 13 (2022)

LYUBOMIR L. SAKALIYSKI CYIL 13 ȍ2022Ȏ recognition and full capacity to enter into international agreements. However, there have been arguments proposing that the EU is neither a State nor an IO, but entirely different kind of polity 65 – be it super-state or a super-IO, it is well established that in fact the EU is an IO with capacity to enter into international agreements 66 . This is also evident by more than 2000 treaties the EU is a party to 67 . Therefore, considering the above, and that the EU is neither private individual nor a corporation established under national law, all parties to the JCPoA do fulfil the criteria in question. A treaty must be in written form Although customary international law provides for the possibility of oral agreements, and albeit rare, there are examples of oral agreements which constitute legally binding international agreements 68 , an element of a treaty is that it must be in written form. There is no further clarification on what exactly said form must be, but everything from a hand written illuminated manuscript on vellum to an exchange on social media platforms is satisfactory as the prevalent essence is that there must be a permanent and readable recording of the agreement in question 69 . Therefore, considering that the JCPoA has been recorded in permanent and readable manner by its parties 70 and later endorsed as well as recorded again in permanent and readable manner by the UNSC 71 it could be confidently concluded that the JCPoA is in written form and thus satisfies the criterion in question. A treaty must be governed by international law The fourth criterion and a constituent element of a treaty is that it must be governed by international law. In its commentaries to the first set of Draft Articles the ILC notes that this criterion was included only so that a distinction must be made between international agreements governed by public international law and agreements governed by domestic law, also that “the element of intention is embraced in the phrase ‘governed by international law’” 72 . There are two sub-elements that need to be tackled separately. The JCPoA does make no reference to a domestic legal system, nor does it allude that it is under a particular national jurisdiction. On the contrary, as noted above, in case of non compliance the enforcement mechanism is a referral to the UNSC 73 , which is widely known to be very much not a national court of law. In circumstances where an agreement between parties which have the capacity to enter into treaty relations with each other or other subjects of international law has been concluded without explicitly specifying a particular national 65 BOGDANDY, A. von, ‘Neither an International Organization nor a Nation State: The EU as a Supranational Federation’ in JONES, E., MENON, A., ANDWEATHERILL, S. (eds), The Oxford Handbook of the European Union (OUP 2012), pp. 761–776. 66 Treaty on European Union, Art. 47. 67 Council of the EU, Treaties and Agreements Database (n 34). 68 Legal Status of Eastern Greenland (Denmark v Norway) Judgment PCIJ Reports Series A/ B No 53, pp. 71–73; Dissenting Opinion by Judge M. Anzilotti, PCIJ Reports Series A/ B No 53, p. 91. 69 HOLLIS, D. B. (n 50), p. 23. 70 UNSC Letter dated 16 July 2015 (16 July 2015) UN Doc S/2015/544, Annex; UNSC Letter dated 16 July 2015 (16 July 2015) UN Doc S/2015/545, Annex. 71 JCPoA (n 1). 72 ILC Report (n 22), p. 189, para. 6. 73 JCPoA (n 1), recitals 36-37.

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