Petrič for MMC: What’s important is the authentic will of the memorandum signatories

A Croatian judge rules Croatian law to be above the memorandum

4. november 2013 ob 18.45 • Ljubljana - MMC RTV SLO

The agreement has to be fulfilled, regardless of its name and whether it was ratified in parliament – says international law professor Ernest Petrič for MMC. Foto: BoBo

The agreement has to be fulfilled, regardless of its name and whether it was ratified in parliament – says international law professor Ernest Petrič for MMC.

"The will of the signatories is the key. The name of an international treaty, as well as its form – for it could be an oral agreement or even a gentleman’s agreement, are not relevant for the validity of the agreement" is how Petrič explains the circumstances under which a Zagreb court judge ruled for the resumption of court proceedings against Ljubljana Banka (LB).

According to the Croatian daily Večernji List the judge argued that the Memorandum of Understanding, signed by the Croatian and Slovenian governments, does not represent an international treaty and is therefore not above Croatian law, due to the fact that it was not ratified by Croatia's parliament and not published in the country's official journal.

In the memorandum the Croatian government agreed to ensure the suspension of court proceedings initiated by two Croatian banks connected to the transfer of foreign currency saving deposits.

What counts is the authentic will of the signatories
As an international law professor Petrič stresses that what is most important is the authentic will of both parties in the treaty: "Have they factually, in any way, unofficially or even with the exchange of notes or through authorized representatives, expressed a will, a concurrence of wills regarding the issue. Both foreign ministers and prime ministers have surely done so. In that case we're talking about a treaty", says Petrič.

The treaty is valid even without being ratified
Mr. Petrič further explains that a treaty can become valid even without being ratified, if it is evident that the signatories haven't envisaged a ratification process for the treaty to come into force. He reminds of an excellent example of another Memorandum of Understanding from 1954 – between Italy on one side, and England, USA and Yugoslavia on the other. "Although it was never ratified in Italy and never published in the Italian official journal, it undoubtedly came into force."

Pacta sunt servanda
"How it is called or whether it was signed without being ratified, doesn't mean that the treaty is not binding. It is binding if the sides have expressed the will to solve the matter through a treaty i.e. if the treaty is the result of their will. Pacta sunt servanda – Agreements must be kept", Ernest Petrič reminds of the old basic principle of any law.