ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 16

The term “subjects of international law” means: (a) an incumbent of rights and duties under international law; (b) the holder of procedural privilege of prosecuting a claim before an international tribunal; (c) the possessor of interests for which provision is made by international law; and (d) the capacity to conclude treaties with states and international organizations (Starke 1989: 58).

An entity, to be considered a state, must have certain characteristics, such as territory, population, government, and sovereignty

Prior to 1969, the law of treaties was mainly comprised of customary rules of international law. These rules have been codified and clarified in the 1969 Vienna Convention on the Law of Treaties (referred here as the Convention). The Convention governs the law and practice of treaties concluded between states.

McNair defines treaty as “a written agreement by which two or more states or international organizations create or intend to create a relation between themselves, operating within the sphere of international law” (McNair,1961). According to Oppenheim, international treaties are agreements, of a contractual character, between states or organizations of states, creating legal rights and obligations between the parties (Oppenheim, vol. I, 1992). The Vienna Convention defines treaty as “an international agreement concluded between states in written form and governed by international law” (Art. 2(1)/a).

The terms treaty, pact, charter, constitution, statute, convention, General Act, Final Act (when it is an independent instrument) are generally used for formal instruments of multilateral character. The terms such as memorandum of understanding, procés vérbal, arrangement, exchange of notes are used for less formal instruments and generally related to transactions of provisional or temporary nature.

The Vienna Convention is limited to written treaties in the interest of clarity and simplicity,without denying the legal validity of oral agreements. An agreement, to be termed as a treaty, should be governed by international law and not by national law. Like terminology, international law does not prescribe any form or procedure for the making of a treaty, though the constitutional law of certain states prescribes both. Only the entities enjoying international legal personality can be parties to a treaty. Article 6 of the Vienna Convention provides that “every state possesses capacity to conclude treaties.”

The term ‘source’ articulates what the law is and where it can be found. In developed legal systems, sources may be readily identifiable in the form of legislation and judicial decisions. However, 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. The concept of ‘sources of international law’ faces many conceptual difficulties. Jurists of international law do not agree on the very concept of “source.” They evaluate it from their doctrinal philosophy regarding the basis of international legal obligations. A distinction has also been made between formal sources and material sources of international law. From formal sources, the law derives its authority or sanction, and from material sources, the law derives its content or subject matter.

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.

Resolutions of the General Assembly are sometimes referred to as soft law, since they cannot be classified as full-fledged rules of international law such as international custom, treaties, or general principles of law. However, resolutions meet, to a great extent, the criteria to be termed as law.Soft law consists of written instruments that spell out rules of conduct that are not legally binding and do not generate the requisite opinio juris contributing to customary rules but that lay down the trend for the future development of law.

Full powers is a formal document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty (Art. 2(1)/c, Vienna Convention). Before the start of the formal negotiations of a treaty, normally there is a reciprocal examination of the full powers in order to avoid any trouble resulting from negotiation with a representative, not duly authorized to negotiate.

A reservation is a unilateral statement made by a state at the time of signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (Art. 2(1)/d). The object of a state making the reservation is to alter its obligations with regard to other parties. A declaration in the nature of interpretation of certain provisions in a particular way, which does not vary the obligations of that signatory vis-a-vis other signatories, is not a true reservation.

Error, to be a ground of invalidity, must be the one related to a fact or situation assumed by the state concerned. That fact or situation has formed an essential basis of State’s consent to the treaty. However, (a) if the State has contributed by its own conduct to the error or (b) if the circumstances were such as to put that state on notice of a possible error, or (c) the error related only to the wording of the text of the treaty, it cannot become a ground for the invalidation of the treaty (Art. 48).

Jus cogens literally means “compelling law.” It designates norms from which no derogation is permitted by way of particular agreements. It stems from the idea already known in Roman law that certain legal rules cannot be contracted out. Jus cogens is opposed to jus dispositivum, i.e., rules that yield to the will of the parties. In case of a contrary disposition of the parties, one can contract out of jus dispositivum but not out of jus cogens.