ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 13

In 1961, the General Assembly established the Special Committee on Decolonization (the Committee of 24) to assist in the implementation of Resolution 1514.

Article 6 of the 1933 Montevideo Convention declares that de jure recognition is “unconditional and irrevocable.”

The principle of uti possidetis was developed in the 19th century when the Spanish America was decolonized.

The principle, as enshrined in Resolution 1514, had not been extended beyond the then existing colonies under the minority White régimes. The post-colonial States are reluctant to allow their minorities to exercise the right of self-determination, as it is disruptive to national integrity and international security. Thus, the Biafrans (in Nigeria), the Somalis (in Kenya), and the Tamilians (in Sri Lanka) have been denied this right so far.

Due to the inability of international law to satisfy this test, John Austin described international law as positive international morality, which consists of “opinions or sentiments current among nations generally.”

The International Court of Justice (ICJ) is the only international court to adjudicate all kinds of inter-State disputes. However, it lacks universal compulsory jurisdiction for settling disputes.

According to Article 59 of its Statute, decisions of the Court are binding upon the parties to the dispute and only in respect to that particular dispute. Under Article 94 of the UN Charter, each member of the United Nations undertakes to comply with the decision of the Court in a case to which it is a party. If the party fails to comply with the decision, the Security Council may give effect to the judgment against a recalcitrant State by making recommendations or deciding upon measures.

Countermeasures are unilateral measures adopted by a State (the ‘injured State’) in response to the breach of its rights by the wrongful act of another State (the ‘wrongdoing’ or ‘target’ State) that affect the rights of the target State and are aimed at inducing it to provide cessation or reparations to the injured State

War and the use of force had historically constituted the legal means for enforcing international law and settling disputes between States. However, with the coming into force of the United Nations Charter, the use of force has been made illegal, with the exceptions to defeat armed aggression, to maintain or restore international peace, and to resort to the inherent right of individual or collective self-defense under Chapter VII of the Charter. The process to outlaw war was initiated by the Kellogg-Briand Pact of 1928, without, however, putting anything certain or definite in its place for the enforcement of international rights and obligations generally, or of international law as such.

After the disintegration of the Socialist Federal Republic of Yugoslavia, the new federation of Yugoslavia, consisting of Serbia and Montenegro, was expelled from the United Nations in September 1992 because of its continuing violation of the Charter principles.

By the fifteenth and sixteenth centuries, when the modern international law started getting its form and content, the natural law had made heavy inroads and assumed strong ideological moorings. This can be clearly seen in the writings of Francisco de Vittoria (1480-1546), Francisco Suarez (1548-1617) and Alberico Gentilis (1552-1608). International law was binding on the States because it was part of the law of nature. However, it was Hugo Grotius (1583-1645) who secularized the concept of natural law while making a distinction between jus naturale and jus gentium. He based the law of nations on customs and treaties in addition to the law of nature. The law of nature, according to him, was the dictate of right and reason, not of divine prescriptions.

There was a marked development of international law in the second half of the nineteenth century due to the emergence of powerful nation-States, the expansion of European civilization in other parts of the world mainly through colonization, new and faster means of transportation, and increasingly destructive nature of warfare. These developments impelled States to devise new rules of international law, particularly relating to the use of force and war, which had become a part of national policies.

There are two principal theories put forward by scholars on the relationship between international law and municipal law: monism and dualism.

According to monism, international law and municipal law are, in general, the components of one system of law.The main proponents of this theory are Hans Kelsen (1881-1973) and Hersch Lauterpacht (1897-1960). Gerald Fitzmaurice and Joseph Gabriel Starke are other prominent supporters of the approach.

On the other hand, according to dualism, they represent two entirely distinct and self-contained legal systems. The main proponents of this theory are Heinrich Tripel and Dionisio Anzilotti.

Sources of international law are not as explicit and accessible as those of municipal law, nor is the machinery for their identification comparable to municipal law. However, the internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice.

Article 38 classifies the sources of international law into two categories. Sub-paragraphs (a), (b), and (c) incorporate the law-creating process, which means that in any asserted rule of international law, it must be shown that it is the product of one or more of the three law-creating processes: treaties, customs, and general principles of law. Sub-paragraph (d), however, enumerates some of the means for the determination of alleged rules of international law. In the case of the law-creating process, the emphasis lies on the forms by which any particular rule of international law is created. This is being done through the law-determining agencies, (those stated in sub-paragraph d), that verify an alleged rule

For a practice to crystalize as a custom, it does not need to pass the test of universal acceptance. It is enough to show that the majority of States have accepted a particular practice. For example, in the matters related to maritime law, the practice of the United Kingdom and the United States is of special importance, just like the practice of the United States and Russia is significant in the law relating to outer space.

Acquiescence and mutual tolerance became the basis of the ICJ decision in the Anglo-Norwegian Fisheries case (UK v. Norway, 1951). The Court accepted the legality of Norway’s straight baseline system for delimiting its “Fishery Zone” by a 1935 decree. This decree was based on Norway’s earlier decrees of 1869 and 1889. No State had protested against them including the United Kingdom. The Court observed that there is a general tolerance with regard to the Norwegian practice.

Treaties have been classified into “general” and “particular”, as is done in Article 38(l)(a) of the Statute of the ICJ.

A treaty, even if of universal or normative nature, will not bind the non-parties unless they (expressly or by their conduct) manifest their intention to be bound by the provisions of the treaty as general rules of international law.

Some jurists have further classified the treaties into lawmaking treaties and treaty contracts. Whereas the law-making treaties are a source of law, the treaty contracts merely purport to lay down special obligations between the parties and are not directly a source of law.

A treaty is an express manifestation of the parties’ intention to be bound by a particular rule, and it can modify or reject the existing customary rules. Hence, treaty law takes priority over international customary law. In those situations where there is a conflict between a treaty rule and a customary rule, the judicial bodies have to give effect to the treaty provision.

Non-liquet means “it is not clear.” In law, a non liquet is a situation where there is no applicable law. It refers to a situation in which a competent court or tribunal fails to decide the merits of a case for the absence of suitable law, the vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.

Subrogation is the substitution of one person for another so that the person substituted succeeds to the rights of the other.

In the Mavrommatis Palestine Concessions case (1924), the PCIJ referred to the general principle of subrogation and held that the concessions made by the Ottoman Empire in favor of Mavrommatis were enforceable against the United Kingdom, which was the successor State to the Ottoman Empire in Palestine.