Cag University Faculty of Economics And Administrative Sciences.

Cag UniversityFaculty of Economics And Administrative

Sciences

International LawInternational Law I Iıııııı

Sources of International Law & International Agreements

Instructor: Ast. Prof. Sami Doğru

Law Among Nations: An Introduction To Public International Law, Von Glahn, G., & Taulbee, J.L. (2010). (9th ed.). New York: Pearson.

Domestically, when there is a dispute between two people or between companies, we turn to lawyers for help.

Lawyers can give advice in accordance to the particular law that applies in the situation.

For example, if you are in an accident and you want legal advice, you call a lawyer.

The lawyer can advise you based on the law that applies to your situation.

The lawyer may also look at other sources, such as previous cases.

Sources of International Law

But what happens when you have a dispute between 2 countries?

Locating a specific rule when there is a dispute between countries is not as simple as calling up a lawyer.

On an international level, we lack;

- “A unified legal code, constitution,

- Central legislative authority,

- Judicial structures with compulsory jurisdiction . .


International law provides a normative framework for the conduct of interstate relations.

In this sense, international society is no exception to the maxim of;

- ibi societas, ibi ius: where there is social structure, there is law.

The sources of international law define the rules of system.


So where should we look?

Well, even though there is no unified code for nations to look to when there is a dispute.

There has been some agreement in the international community regarding sources to turn to.

These general agreements are embodied in Article 38 of the Statute of the ICJ (International Court of Justice).

Article 38 describes;

- 3 major sources of int’l law and

- 2 subsidiary possibilities for determining relevant rules of law. (pg. 44).

This gives us a total of 5 sources that we will discuss.


Sources of Int’l Law: An OverviewSources of Int’l Law: An Overview

We will discuss 5 sources of international law:

1. International Conventions

2. International Custom

3. General Principles of Law

4. Judicial Decisions

5. Doctrin (Teachings of Highly Qualified Publicists)


Sources of law can be divided into two groups:

1. Primary (Binding ) sources: Create rules.

a. International treaties

b. Custom

c. General Principles of law

2. Subsidiary Sources:Help grasp the meaning of rules and interpret them

a. Judical decisions

b. Doctrine (Teachings of lawyers and experts)

Both primary and subsidiary sources can be in written and unwritten form


Art. 38 does embody the most important sources of international law.

Apart from the sources listed in this article there may be other sources such as

- Decisions of international organizations,

- Equity and

- Soft law


1. Treaty

The 1969 Vienna Convention defines ‘treaty’ as

«an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation».


2. Custom

Article 38 recognizes «international custom, as evidence of a general practice as accepted as law»

There are two elements of custom:

a. Objective element (General Practice): state practice

b. Subjective (Psychological) element: opinio juris


2. Custom

a. Objective element (General Practice): state practice

Practice should be constant and uniform.

There is no particular duration requirement for practice to become law.

However the consistance and generality are required.

Uniformity means that states follow certain pattern in a uniform way and there should not be inconsistencies.


2. Custom


Opinio juris of customary law provides that the rule in question should be regarded by states as being binding in law atates must obey such a rule since they believe they are under a legal obligation to act in the manner prescribed.

Sources of Int’l Law: An OverviewSources of Int’l Law: An Overview 3. General Prenciples of Law


It is possible to look at international decision to find out general principles whic might be listed as follows:

- Independence

- Good faith

- Fair trail

- Liability for foult

- res judiciate

Sources of Int’l Law: An OverviewSources of Int’l Law: An Overview 4. Judical Decisions

Article 38 Provides that ICJ will apply judical decisions as a subdidiary means.

However, the application of judical decisions is subject to erticle 59 of he Statute which reads «the decision od the Court has no binding force except beween the parties and in repect of that particular case».

In other words, international courts are not obliged to follow previous decisions.

But in practice, international courts mostly examine previous decisions and refer to them in judgements.

Sources of Int’l Law: An OverviewSources of Int’l Law: An Overview 5. Doctrine

The term «the teachings of publicists» means the academic works of the learned writers and scholars of international law who published monographs, books and articles.

This is also subsidiary means.

The court is free to follow a specific approach as it pleases.

This section of the course will cover only first part of Treaties

Therefore, the material of the Treaties will be broken down into 3 parts.

Part I will focus on general information of the Treaties.

Part II will focus on formation of Treaties and the some other information of the treaties.

Part III will focus on Turkish legal system in regards to this area.


Source # 1: International ConventionsSource # 1: International Conventions

TreatiesI. General InformationII. Formation of Treaties

a. Four Stages of Formation b. Understandings & Reservations c. Accession & Succession d. Other terminology

III. Notes on Interpretation of TreatiesIV. Brief Note on Third PartiesIV. Validity of TreatiesV. Termination of Treaties

Treaties: General InformationTreaties: General InformationStatus and Importance of Treaties

Treaties are called with different names as ‘tresties’,

- ‘Agreement’

- ‘Charter’,

- ‘Statute’,

- ‘Protocol’,

-‘Convention’ etc.

Unlike customary rules and general principles of law, treaties are, in principle binding only for states parties to them.

Treaties: General InformationTreaties: General InformationStatus and Importance of Treaties

A treaty may be binding for third states only if those states agree to accept rights or obligations stemming from it.

If treaty codifies one or more costumary rules, these rules in that treaty are binding for all states as customary obligation.

Treaties: General InformationTreaties: General Information

Status and Importance of Treaties

Today, treaty has become the most important source of international law due to two reasons:

- Many treaties codify and therefore clarify customary rules which are unwritten and therefore have an uncertain content.

- Sometimes, treaties improve the customary rules with codifying them.



Almost all the rules of international law regulating treaty,

- giving binding force to a treaty,

- putting treaties in practice,

- modifying and terminating treaties are available in the

«1969 Vienna Convention on the Law of Treaties 1969 (‘1969 Convention)»



Treaties which are done

- between States and

- international organisation or

- between international organisations are regulated by the

«1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 (‘the 1986 Convention’)».


First, a few definitions:

•1. Treaty–

Article 2(1)(a) of the Convention defines ‘treaty’ as:

an international agreement

- concluded between states in written form and

- governed by international law,

- whether embodied in a single instrument or

- in two or more related instruments and

- whatever its particular designation.

Treaties: General InformationTreaties: General InformationFirst, a few definitions:

•1. Treaty–The Convention uses ‘treaty’ as a generic term.

A plurilateral treaty is one made between a limited number of states with a particular interest in the subject matter.

A constituent treaty establishes and regulates an international organisation.

A universal treaty is one intended to apply to all states.

1. Treaty –

“A treaty represents a set of mutually conditional promises that both states consider legal obligations.”

In other words,

“- I promise in good faith to keep my promises if you keep your promises and

- You promise to keep your promises if I keep my promises.” (pg. 66)


2. Bilateral Treaty –

A treaty between 2 states.

Think of it as a contract between 2 nations.

3. Multilateral Treaty –

A treaty that involves more than 2 states or parties.


Not all treaties may lead to a general rule.

For example, treaties formed on a smaller scale (bilateral, or among a few states) create limited obligations and may not create a general rule that will apply to the rest of the nations in the world. (pg.45)

On the other hand, there are some treaties that can and do create int’l laws.

These law-making treaties are generally multilateral and are created with the intent to create rules that will be relevant to everyone. (pg. 46)


The reference in (1) to ‘international conventions’ is to bilateral and multilateral treaties.

For the moment it is enough to say that,

- as with domestic legislation, treaties now play a crucial role in international law,

- important areas of customary international law having now been codified in widely accepted treaties.


In consequence, custom and the other sources of international law are no longer as important as they used to be.

But that does not mean that custom is on a lower level than treaties.

There is no formal hierarchy of the sources of international law.

As between parties to a treaty, the treaty binds them.

As between a party to a treaty and a non-party, custom will apply, including custom derived from treaties.


- General principles of law,

- judgments and the opinions of writers

are of less importance as sources.


Anyone interested in international law needs to know the law of treaties.

Because the subject is so important,

The Vienna Convention itself is essential reading, in particular the definitions in Article 2, of which the following should be especially noted:

- ‘negotiating state’

- ‘contracting state’

- ‘party’


- Negotiating state means a state, which took part in the drawing up and adoption of the text of the treaty.

- Contracting state means a state, which has consented to be bound by the treaty, whether or not the treaty is in force;

- Party means a state, which has consented to be bound by the treaty and for which the treaty is in force.


The Vienna Convention on the Law of Treaties 1969

The Vienna Convention on the Law of Treaties 1969 (‘the Convention’ or ‘the 1969 Convention’) codified the law of treaties, i.e. the rules and procedure for making and applying treaties.

The rights and obligations created by a treaty are more properly known as ‘treaty law’


Although the Vienna Convention it still has only 101 parties,

- the Convention is regarded by the ICJ as generally reflecting customary international law, and

- for most practical purposes the Convention is an authoritative statement of customary international law and

- so can be applied to most treaties, despite the Convention not having retroactive effect.


The Convention does not apply to oral agreements.

Nor does it cover succession to treaties, responsibility for breach of treaties or the effect of hostilities on treaties.



First, a few definitions:

International Agreement

– “An agreement among two or more states or int’l organizations that is intended to be legally binding and is governed by int’l law.” (pg.66)

- In other words, 2 or more nations consent to an agreement and intend to be legally bound by it.

There are many examples of international agreements:

- Think again about int’l travel.

There are a multitude of potential problems in this area, alone (travel documents, communication, airline procedures, etc.).

Yet, those potential problems are covered by int’l agreements. (pg. 46)


To be a treaty, the agreement must have an international character.

It must therefore be the following:

1. An international agreement concluded between states

2. In written form

3. Governed by international law

4. Whether embodied in a single instrument or in two or more related instruments

5. Whatever its particular designation


1. An international agreement concluded between states

An agreement between a state and a multinational company, such as an oil concession, is not a treaty.

Treaties between states and international organisations or between international organisations;

- are not covered by the Convention (Article 3),

- but are the subject of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 (‘the 1986 Convention’).

The 1986 Convention follows the 1969 Convention very closely.


2. In written form

Even though the original text of a treaty is usually typed or printed, it can be in a

- telegram,

- telex,

- fax message or

- e-mail, or

- rather in an exchange of them.


3. Governed by international law

This means that there must be an intention to create obligations under international law.

The intention must be gathered;

- from the terms of the instrument itself and from the circumstances of its conclusion,

- not from what the parties say afterwards was their intention.


4. Whether embodied in a single instrument or in two or more related instruments

The classic form of a single instrument treaty has for a long time been joined by treaties drawn in less formal ways, such as exchanges of (diplomatic) notes (or letters), which usually consist of one initiating note and one reply note.

A treaty can also consist of several instruments



International instruments are not designated (named) systematically, and so the name, in itself, does not determine its legal status.

What is decisive is whether the negotiating states intend the instrument to be (or not to be) legally binding.

Although it is reasonable to assume that an instrument called a Treaty, Agreement or Convention is a treaty, one should examine the text to make quite sure.

Most other names are problematic.



Both the UN Charter and the Charter of the Commonwealth of Independent States 1993 (CIS) are treaties.

But

- the Charter of Paris for a New Europe 1990 (Organization for Security and Co-operation in Europe –OSCE)

- and the Russia–United States Charter of Partnership and Friendship 1992 are Memorandum of Understarnding (MOUs).



Calling an instrument a Memorandum of Understanding does not establish its status, since – and most confusingly – some treaties are also given that name.

Only by studying the text can one decide its legal status.


Treaty names

Treaties have always been given a variety of names, including less common ones like

- Compact,

- Solemn Declaration,

- Protocol of Decisions,

- Platform,

- Concordat,

- Agreed Minute and

- Terms of Reference.


Treaty names

In 1992, a treaty between Lithuania and Russia on the withdrawal of Russian forces from Lithuania was concluded with the simple name

‘Timetable’.


Treaty names

It is quite common to refer to a treaty by reference to the place where it was negotiated or concluded.

For example,

- the Convention on International Civil Aviation 1944 is usually called

‘the Chicago Convention’.

- the Convention Regarding the Regime of the Turkish Starits 1936 is usually called

‘Montreux Convention


Agreements between states governed by domestic law

States also contract with each other under domestic law.

For example:

- If the subject matter is exclusively commercial, such as the purchase of commodities in bulk.

- If a state leases land from another state for an embassy, there will be an instrument under domestic law, such as a lease, even though this may be granted pursuant to a treaty


Capacity to make treaties

Treaties are made

- Between subjects of international law, predominantly states;

- Between states and international organizations and

- Between international organizations.

Every state possesses the capacity to conclude treaties (Article 6).


Capacity to make treaties

There is no difference in international law between a treaty concluded on

- Behalf of states and

- One concluded on behalf of governments or their ministries.

A treaty entered into by a government or ministry binds the state, and changes of government will not affect its binding force on the state.


Four General Principles to Remember:

1. “The validity of treaties rests upon a principle of customary law, pacta sunt servanda (treaties must be observed .”

“States make agreements because the agreements reflect mutual interests, but states also have a vital interest in protecting [this] general principle.” (pg. 69)


Four General Principles to Remember (cont’d):

2. “International agreements are normally binding only upon those states that have signed and ratified them.”

There are some exceptions, such as peremptory norms (jus cogens) that are binding on everyone regardless of consent.

- (Some rules in) The UN Charter is an example. (Art. 2/4)


The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

Four General Principles to Remember (cont’d):

3.“Treaties are made between or among states, . . . not governments.

A change in government . . . does not release the state from a treaty obligation.”

4. “To be valid, a treaty must be registered with the United Nations.” (pg. 70)


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