CYIL vol. 13 (2022)

LYUBOMIR L. SAKALIYSKI CYIL 13 ȍ2022Ȏ It must be noted that said list of possible actions is non-exhaustive and only includes the most widely used ways in which consent to be bound could be expressed, this is evident both by the fact that there are plenty of other ways that parties have successfully used to express their consent to be bound 99 , but ever more so by the fact that customary international law, as codified in the VCLTs, leave to the parties to express their consent to be bound however they please 100 . This freedom to choose how to express consent to be bound could very well be exercised by the ministers of foreign affairs signing the first page of the JCPoA and accepting rights and obligation provided therein. To further support the assertion that parties are free to express their consent to be bound as they please a reference to the practice of the ICJ must be made, where the Court has found that a joint communiqué between two parties constituted a legally binding agreement without the parties to it signing it and agreeing to the legal status of said communiqué 101 . Therefore, the fact that the parties to the JCPoA did not express their consent to be bound according to one of the options provided for in the VCLTs and the fact that one of the parties to it considers it a non-signed document and thus not a treaty does not affect the JCPoA’s legal status as a treaty at all. Invalidity due to failure to follow the parties’ domestic legislation on adoption Representatives of one party to the JCPoA have consistently argued in public fora that the JCPoA is not a treaty because it has not gone through the domestic process of approval by its legislature and thus its secretary of state was not authorised to express the party’s consent to be bound. Customary international law, as codified in the VCLTs, provide for a possibility for an expression of consent to be bound by a treaty be invalidated on the basis that the person who expressed it was not authorised according to established domestic legislation 102 . This is not the case in circumstances where that person is a minister of foreign affairs as the office holder is considered as one of the big three (president, prime minister and minister of foreign affairs), whose authority to express consent to be bound is established a priori 103 . The ICJ, in its Cameroon v Nigeria judgment has taken a similar approach as the Court found that despite Nigeria considering the Maroua Declaration a legally non-binding political commitment because it was not ratified by its Supreme Military Council 104 it still “…constitutes an international agreement concluded between States in written form and tracing a boundary; it is thus governed by international law and constitutes a treaty in the sense of the Vienna Convention on the Law of Treaties (see Art. 2, para. l), to which Nigeria has been a party since 1969 and Cameroon since 1991, and which in any case reflects customary international law in this respect.” 105 Therefore, if the USA, for example, has not entered into treaty relations with the other seven parties to the JCPoA in accordance with its national legislation, that does not invalidate 99 HOLLIS, D. B. (n 50), pp. 670–677. 100 VCLT (n 4), Art. 11; ILC Report (n 22), pp. 195–207; VCLT II (n 5), Art. 11; ILC Report (n 27), p. 29. 101 Pulp Mills Case (n 84), para. 138. 102 VCLT (n 4), Art. 46; ILC Report (n 22), p. 240; VCLT II (n 5), Art. 46; ILC Report (n 27), p. 51. 103 VCLT (n 4), Art. 7(2)(a); ILC Report (n 22), p. 192; VCLT II (n 5), Art. 7(2)(a); ILC Report (n 27), p. 24. 104 Case concerning the land and maritime boundary between Cameroon and Nigeria (n 23), p. 427, para. 258. 105 Ibid . p. 429, para. 263.

262