La competenza a rappresentare lo Stato nella conclusione dei trattati e la validità degli accordi tra diritto interno e diritto internazionale

In its judgment on Preliminary Objections in the case of Maritime Delimitation in the Indian Ocean, the International Court of Justice determined that there exists a partial overlapping between articles 7 and 46 of the Vienna Convention on the Law of Treaties, thus replicating what it had already asserted in the Land and Maritime Boundary case between Cameroon and Nigeria. The Court estimated that the persons considered to be representing their State without having to produce full powers (and also the persons delegated by them) are capable of performing all acts pertaining to the conclusion of a treaty, unless limitations to their capacity are « at least properly publicized ». This stance substantially reduces the scope of article 46 on invalidity deriving from violations of constitutional limitations to the exercise of the treaty-making power. An analysis of recent State practice on invalidity deriving from violations of internal law regarding competence to conclude a treaty as well as research on recent internal decisions on unilateral withdrawal (without prior parliamentary approval) indicate that invalidity can still be declared as a consequence of violation of internal norms. The present contribution argues that a significant connection exists between the international and internal levels whith regard to the validity of a treaty.