CYIL vol. 13 (2022)

LYUBOMIR L. SAKALIYSKI CYIL 13 ȍ2022Ȏ of Nations 80 and the Charter of the United Nations 81 . Naturally, arguments suggesting that the said Covenant or Charter are/were not treaties are at best ill-founded. There are a plenty of decisions by the ICJ on the matter where the Court has confirmed that the particular designation of a treaty is irrelevant 82 there are even instances where the Court has found agreed minutes 83 or even a press release 84 to constitute a treaty. Seemingly, an international agreement titled “not a treaty” would certainly fulfil the criterion in question, so the same could be inferred for a treaty titled “Joint Comprehensive Plan of Action” or “the Iran(ian) Deal” for that matter. It would seem from the above that the JCPoA satisfies all the criteria of what constitutes a treaty as established by customary international law and later codified by the ILC’s Draft Articles and VCLTs. Treaty registration – the “additional” element of a treaty Erroneously, it is often assumed that additional criterion to the above that must be satisfied for a legal instrument to be considered a treaty is that it must be registered with the UN Secretary General (UNSG) given that this office holder is the default depositary for international agreements and treaties as per the UN Charter 85 and customary international law as codified in the VCLTs 86 . However, unlike the VCLTs the UN Charter provides for the additional temporal element of requiring treaty registration and publication as soon as possible 87 and it stipulates that disputes arising out of unregistered treaties could not be brought before UN Organs 88 i.e. the ICJ 89 . Clearly there are some differences, which normally are extremely hard to reconcile. Luckily, the UN Charter stipulates that if its provisions are in conflict with treaty obligations UN member States have arising out of other treaties, the UN Charter prevails 90 , so as the VCLT 91 provides for the elements of a treaty and its requirement for publication and registration of treaties has no temporal element, the UN Charter’s additional requirement of registration and publication as soon as possible assumingly prevails as well. That would have been the case had the definition of a treaty and its constituent elements, as well as the requirement for registration and publication, were only treaty obligations. Given the duality of said rules as both custom and treaty rules the 80 Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 1920) UKTS 004/1919: Cmd 153. 81 Charter of the United Nations (adopted on 26 June 1945, entered into force on 24 October 19459) 1 UNTS XVI (UN Charter). 82 South West Africa cases (Ethiopia v South Africa; Liberia v South Africa) Preliminary Objections Judgment ICJ Reports 1962, p. 331; Continental Shelf Case (n 52), para. 96; Maritime delimitation and territorial questions between Qatar and Bahrain (n 53), para. 23; Case concerning the land and maritime boundary between Cameroon and Nigeria (n 23), paras. 262–3; PCA Case N 2013-19, South China Seas Arbitration (Philippines v China) Award on Jurisdiction and Admissibility PCA 2015, para. 214. 83 Maritime delimitation and territorial questions between Qatar and Bahrain (n 53), paras. 21–30. 84 Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment, ICJ Reports 2010, para. 138. 85 UN Charter (n 81), Art. 102(1). 86 VCLT (n 4), Art. 80; VCLT II (n 5), Art. 81. 87 UN Charter (n 81), Art. 102(1). 88 Ibid. Art. 102(2). 89 Statute of the International Court of Justice (18th April 1946) (33 UNTS 993), Art. 1. 90 UN Charter (n 81), Art. 103. 91 Reference to the VCLT II has not been made because, as previously mentioned, it is not in force.

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