CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … legal system it is assumed that the agreement in question is governed by international law 74 . The fact that the parties to the JCPoA have the capacity to enter into treaty relations is unquestionable, so is the fact that the JCPoA does not specify a particular national legal system, therefore only the assumption remains. Having ruled out the possibility that the JCPoA is governed by domestic law does not automatically mean that it is thus governed by international law as after all it could not be a treaty, and thus it may not be governed by any laws at all. The ILC has avoided any possibility for such doubt by referring to intent 75 . If there is an intent to commit, then there is an agreement, which must be governed by a set of laws, and if parties with treaty making capacity have excluded the possibility that said agreement is governed by domestic law only international law remains a viable alternative. However, it must be noted that the term “intent” could not be interpreted so narrowly to only mean that the parties intended to conclude a treaty, the more encompassing interpretation is much more accurate – that the parties have the intention to commit to the agreed obligations, which is exactly the logic the ICJ followed when it found that parties to a case before it have concluded a treaty, despite the protestations of one of the parties that it has concluded a treaty with the other party 76 . Having examined the parties to the JCPoA’s intent to commit, both textually and contextually in an earlier section it could only be concluded that they have indeed intended to commit to the provisions of the JCPoA and thus, in the view of the above, the JCPoA is governed by international law and satisfies this criterion for the definition of a treaty as well. A treaty could be embodied in a single instrument or in two or more related instruments Customarily, a large majority of treaties are embodied in a single instrument, but the practice of the ICJ provides a number of judgments 77 where an exchange of notes or the collection of multiple instruments are deemed to be a treaty. At the time of writing this article the JCPoA is still embodied in a single instrument and thus it satisfies the criteria of form. Should the negotiations about its future are successful it is unlikely that this would change. However, if new annex or annexes are added, or a JCPoA II emerges either in a single or more instruments, or much more unlikely – as a collection of diplomatic notes, the criterion for a number of instruments containing the agreement would still be met and its claim for legal The Treaty of Münster 78 and the Treaty of Osnabrück 79 , which are collectively known as the Peace of Westphalia, and as such are a major milestone in the history of international law in Europe are quite helpfully titled as treaties. The same cannot be said for thousands of other treaties much like other milestones in international law – the Covenant of the League 74 ILC Report (n 27), p. 18, para. 4; DELAUME, G. R. ‘The Proper Law of Loans Concluded by International Persons: A Restatement and a Forecast’ (1962) AJIL 56 (1), pp. 76–80; Case concerning the land and maritime boundary between Cameroon and Nigeria (n 23), p. 429, para. 263. 75 ILC Report (n 22), p. 189, para. 6. 76 Maritime delimitation and territorial questions between Qatar and Bahrain (n 53), para. 27. 77 Ibid , para. 23; Continental Shelf Case (n 52), para. 96. status of a treaty would be uncompromised. A treaty’s particular designation is irrelevant

78 Treaty of Peace between the Holy Roman Empire and France (24 October 1648). 79 Treaty of Peace between the Holy Roman Empire and Sweden (24 October 1648).

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