CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … hierarchy of the UN Charter could no longer be so clearly established due to the fact that the UN Charter prevails only over other treaties and international agreements 92 , it does not automatically prevail over all other sources of international law. That being said, the provision dealing with treaty registration in the UN Charter is not in conflict with the customary international law on the same topic as codified in the VCLTs and the corresponding draft articles, it merely adds to them. Thus, lex specialis derogat legi generali applies. Having established that treaty registration and publication is obligatory and to be done as soon as possible, it must be noted that the only sanctions attached to that requirement is the lack of locus standi before the ICJ and no mention of the (in)validity or the legal status of the treaty in question is made. This only makes the provision in question procedural, rather than of material substance and has no bearing on whether a certain legal instrument is a treaty or not. Which is exactly what the ICJ found it its Qatar v Bahrain Judgment when faced with the same issue 93 . Having provided the necessary analysis on the constituting elements of a treaty, further attention must be given to actions undertaken by parties to the JCPoA in attempts to degrade it from a treaty to legally non-binding political commitment, or even proposing that it no longer applies to them. The JCPoA as a non-signed document One of the parties to the JCPoA considers it to be a non-signed document 94 and thus alleges that it has not given its consent to be bound. Consent to be bound is dealt with the VCLTs 95 and the draft articles that precede them 96 , as well as the already crystalised customary international law on the matter, all of which contain a number of possible actions parties may choose to undertake in order to formally express their consent to be bound and thus enter into treaty relations with the other parties to the relevant treaty. One possible action is for the parties to express their consent to be bound by a signature 97 , in case of the JCPoA this has not been followed as the JCPoA does not explicitly provide that consent to be bound could be expressed by a signature. Thus, it could be assumed, is why one of the parties to the JCPoA considers it to be a non-signed document, despite the fact that signatures of representatives of the parties to the JCPoA could be found on its title page 98 . 92 UN Charter (n 81), Art. 103. 93 Maritime delimitation and territorial questions between Qatar and Bahrain (n 53), paras. 28–30. 94 Letter from Julia Frifield to Mike Pompeo (n 2). 95 VCLT (n 4), Arts. 11–18; VCLT II (n 5), Arts. 11–18. 96 ILC Report (n 22), pp. 195–202; ILC Report (n 27), pp. 29–32. 97 VCLT (n 4), Art. 12; VCLT II (n 5), Art. 12; ILC Report (n 22), p. 195; ILC Report (n 27), p. 29. 98 JCPoA Signatures, a picture of the JCPoA’s title page containing the signatures of Mohammad Javad Zarif – Foreign Affairs Minister of Iran, Wang Yi – Foreign Minister of the People‘s Republic of China, Laurent Fabius – Minister of Foreign and European Affairs of France, Frank-Walter Steinmeier – Minister for Foreign Affairs of Germany, Federica Mogherini – High Representative of the Union for Foreign Affairs and Security Policy, Sergey Lavrov – Minister of Foreign Affairs of Russia – Philip Hammond, Secretary of State for Foreign and Commonwealth Affairs and John Kerry, United States Secretary of States , accessed 15 April 2022. 4. Counterarguments

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