International Law

Now mention several cases that are also in your book, more specifically in the chapter written by Malgosia Fitzmaurice. She was a judge of the ICJ and it is a very good and enjoyable chapter to read.

Case: Eastern Greenland, 1933

The Norwegian minister declared that Norway would never occupy Greenland so that Denmark could exercise its sovereignty. The case was complicated because the Norwegian minister had only made a declaration, so it was not aimed at creating obligations. Norway claimed that the declaration was not binding, but Denmark didn't agree and argued that it was the intent of the Norwegian minister to grant sovereignty to Denmark.

According to the Court, the declaration of the Norwegian minister was binding, so it actually created obligations for States. According to the ICJ, it was binding because the intent of the minister when he said so was precisely to create a binding commitment for Norway and because of the role of the minister. The minister is an organ of the state.

minutes as an agreement already, because according to the Court you don’t need to stick to the definition of minutes, but you need to look at the content and see whether there might be legal obligations, and according to the Court there were legal obligations in that case.

However, in 2012, the ITLOS (International Tribunal for the Law of the Sea) reached a different conclusion, because according to them, the minutes do not produce legal obligations. On the one hand, according to the ICJ, it depends on what is written in the minutes, on the other hand, the ITLOS argued that minutes do not produce legal obligations.

Fragmentation of IL

It has happened sometimes that other international courts decided in a very different way compared to the decisions of the ICJ. It is possible because there is no hierarchy between the Courts at the international level, even though there is a deference towards the ICJ because it is the most important, the other courts do not necessarily have to follow its

Legal reasoning. The discrepancies between judgements have happened very rarely. Some authors have talked about a fragmentation of the IL, which is precisely this: international Courts deciding in a very different way. It has happened in a few cases, but it's not common that a Court departs from the legal reasoning of the ICJ.

The minutes are "verbali" in Italian, so when you write down what was said in a meeting. Usually, it's not a very formal document. It simply reports what was said during the meeting.

Case: Somalia v Kenya, 2017

In this case, it was a memorandum of understanding. The memorandum of understanding is another typology of agreement, whose nature must be assessed case by case. The memorandum of understanding is basically the new form of gentlemen's agreement that were concluded without having too many legal consequences, usually not binding.

There was a memorandum of understanding between Somalia and Kenya regarding the limitation in the Indian ocean.

In that case, the ICJ said that the memorandum of understanding was not binding because it only contained expectations of the parties to decide how to solve disputes on boundaries. According to the Court, this was not a legal obligation because the language was very soft. There are expectations (hope) and it is vague.

Case: EU-Turkey agreement about migration

The controversial agreement between EU and Turkey was adopted in 2017 and raised many issues on migration. It was an agreement to try to solve the migration issue and it was based on a one-to-one mechanism: one refugee back to Turkey, and one refugee admitted into the EU. This agreement failed.

In the press releases, they used the word "deal", which is very generic, and you don't find it in IL. It was called EU-Turkey deal. Making a deal means to conclude or close a case in order to make an agreement. The deal was concluded by Turkey and the EU Council.

There were many protests against this agreement because there were

severe violations of human rights.

The problem was that the deal was concluded by the EU Council, which has no power to conclude treaties according to the EU. The EU Parliament could raise a question to the ECJ (European Court of Justice), it could say that it was not concluded according to the procedure, however, the deal produced some effects because nobody challenged the legal nature of the agreement.

The case was finally decided by the ECJ, saying that the agreement was valid, but it was not an agreement between the EU and Turkey. It was an agreement between the governments of the member states of the EU and Turkey, it was not an agreement under EU law. It's a matter of competences. It was not an agreement under EU law, but it was under international law. It was concluded like a normal treaty, but what we can challenge of this agreement was the respect of human rights.

The making of a treaty

The making of a treaty is composed of several phases:

• Negotiations
• Signature

Negotiations are the starting point and they can happen in any possible way: you can have negotiations in special conferences at the UN level or within the EU, within the Council of Europe and so on. The signature of the treaty means that a State accepts the treaty but not the legal obligations. The signature does not imply legal obligations for States. There is only a legal consequence: a state must not act contrary to the object and scope of the treaty that it has signed.

The ratification is based on the constitutional provisions of a State, it is different from state to state and it means that the state accepts the legal obligation stemming from the treaty. After these, you have the entry into force.

International treaties can be concluded by the heads of the State and the government, because they have automatic competence (prime ministers are recognised as organs that can commit the State) or a State can send a state representative who has the full powers (ambassador, etc.).

Invalidity and termination of a treaty

We can make a distinction between the relative grounds of invalidity and the absolute grounds of invalidity. With relative grounds of invalidity, the treaty can be invalidated by the State that is affected by this cause, this ground of invalidity. Ground means the reason why the treaty is vitiated. It means that a treaty has something wrong from the beginning.

The difference between relative and absolute invalidity is that the absolute ground of invalidity is more serious. In legal terms, relative invalidity means that only the State affected by this ground of invalidity can ask for the treaty to be void and can raise the issue of invalidity. It also means that it can involve just a part of the treaty (some articles), so not the entire treaty.

On the contrary, in the case of absolute invalidity, this means that the treaty is void from the very beginning (void ad initio). It is like the treaty has never existed. It is a severe ground.

of invalidity and any state can ask that the treaty is declared to be void.

The grounds of invalidity are written and discussed in the Vienna Convention on the Law of Treaties of 1996. The VCLT is a convention that has incorporated all the major customary rules existing on the issue of treaties formation (treaties concluded between states). The VCLT was elaborated by the International Law Commission and most the provisions reproduced customary law. This is true also for invalidity.

Relative invalidity

1. Internal law of the state is the first ground. It means that the internal law of a state that is related to the competence to conclude the treaties might be relevant to the issue of invalidity. Not all internal law of a State can be invoked to invalidate a treaty, because the internal law of a State cannot hamper the implementation of a treaty. However, there are some rules of fundamental importance that can be considered. The only rules of fundamental importance of national law are the ones on

The conclusion of treaties, which usually belong to the constitution of a State. These might