CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE JCPoA AND ITS LEGAL STATUS: IF IT WALKS LIKE A TREATY … the fact that it has done so on the international plane via an office holder who is considered to have the authority to express USA’s consent to be bound by a treaty. Naturally, this applies to all other seven parties to the JCPoA too and given that all parties have treaty-making capacity and were represented by one of their big three , arguments based on lack of domestic authorisation are unsustainable. Potential withdrawal from, termination, or suspension of the JCPoA Lastly, attempts to change the membership of the JCPoA have been made. In 2018 the USA has informed the international community that it no longer considers itself bound by it and has in effect withdrawn from the JCPoA because of alleged material breach by Iran 106 . More than half a year later Iran has informed the international community that in response it will stop observing its obligations arising out of JCPoA 107 . Although practically similar, these actions differ from each other in that USA no longer considers itself a party to the JCPoA, but Iran still does. USA announced its withdrawal from the JCPoA under the assumption that it was a non-legally binding political commitment, given the arguments this article makes the possibility of withdrawal in different circumstances must be examined. The VCLTs and the corresponding draft articles provide that a party may withdraw from a treaty either in conformity with the provisions of the JCPoA in this case, or with the unanimous consent of all other parties 108 . The JCPoA has no withdrawal clause, nor the remaining parties to the JCPoA have consented to the USA withdrawing from the treaty 109 . Thus, the only possible scenario left is that the USA has suspended or terminated the JCPoA between itself and Iran on the basis of material breach by Iran ( exceptio non adimpleti contractus ) 110 . Exceptio is a normative rule with origins in contract law that has been elevated to the status of general principle of law 111 . Additionally, the ICJ had a number of opportunities to clarify that large parts of the VCLT are codification of existing customary international law, including the provisions on treaty termination and suspension 112 , which in essence is exceptio codified and therefore further elevated to the status of customary international law. Exceptio as codified in the VCLTs provides that material breach by a party to a multilateral treaty entitles the remaining parties to unanimously terminate or suspend the treaty 113 . There has 106 President Donald J. Trump is Ending United States Participation in an Unacceptable Iran Deal , accessed 15 April 2022. 107 Iran takes final step by abandoning JCPoA restrictions , accessed 15 April 2022. 108 VCLT (n 4) Art. 54; ILC Report (n 22), p. 251; VCLT II (n 5), Art. 57; ILC Report (n 27), p. 57. 109 Remarks by High Representative/Vice-President Federica Mogherini at the press conference following ministerial meetings of the EU/E3 and EU/E3 and Iran , accessed 15 April 2022. (The original source was an EEAS press release, cited at the end of this cited post, but it is no longer available. The two texts are identical.) 110 VCLT (n 4) Art. 60(2); ILC Report (n 22), p. 253; VCLT II (n 5), Art. 60(2); ILC Report (n 27), p. 58. 111 The Diversion of water from the Meuse (Belgium v the Netherlands) Dissenting Opinion of Judge Anzilotti PCIJ Reports Series A/B No 70, p. 50. 112 Case Concerning the Gabčíkovo – Nagymaros-Project (Hungary v Slovakia), Judgment, ICJ Report 1997, para. 46; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) , Advisory Opinion, ICJ Reports 1971, para. 94. 113 VCLT (n 4) Art. 60(2)(c); ILC Report (n 22), p. 253; VCLT II (n 5), Art. 60(2)(c); ILC Report (n 27), p. 58.

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