Cag University
Faculty of Economics And Administrative
Sciences
International Law I
ııı
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.
Sources of International Law
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
jurisdiction . .
with
compulsory
Sources of International Law
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.
Sources of International Law
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.
Sources of International Law
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 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 Int’l Law: An Overview
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
Sources of Int’l Law: An Overview
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
Sources of Int’l Law: An Overview
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».
Sources of Int’l Law: An Overview
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
Sources of Int’l Law: An Overview
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.
Sources of Int’l Law: An Overview
2. Custom
b. Subjective (Psychological) element: opinio
juris
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 Overview
3. General Prenciples of Law
b. Subjective (Psychological) element: opinio
juris
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 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
Sources 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.
Sources of Int’l Law: An Overview
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 Conventions
Treaties
I. General Information
II. Formation of Treaties
a. Four Stages of Formation
b. Understandings & Reservations
c. Accession & Succession
d. Other terminology
III. Notes on Interpretation of Treaties
IV. Brief Note on Third Parties
IV. Validity of Treaties
V. Termination of Treaties
Treaties: General Information
Status 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 Information
Status 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 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.
Treaties: General Information
Status and Importance of Treaties
Almost all the rules of international law
regulating treaty,
- giving binding force to a treaty,
- putting treaties in practice,
- modifying and
available in the
terminating
treaties
are
«1969 Vienna Convention on the Law of
Treaties 1969 (‘1969 Convention)»
Treaties: General Information
Status and Importance of Treaties
Treaties which are done
- between States and
- international organisation or
- between international
regulated by the
organisations
are
«1986 Vienna Convention on the Law of
Treaties between States and International
Organizations
or
between
International
Organizations 1986 (‘the 1986 Convention’)».
Treaties: General Information
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 Information
First, 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.
Treaties: General Information
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)
Treaties: General Information
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.
Treaties: General Information
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)
Treaties: General Information
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.
Treaties: General Information
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.
Treaties: General Information
- General principles of law,
- judgments and the opinions of writers
are of less importance as sources.
Treaties: General Information
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’
Treaties: General Information
- 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.
Treaties: General Information
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’
Treaties: General Information
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.
Treaties: General Information
The Convention
agreements.
does
not
apply
to
oral
Nor does it cover succession to treaties,
responsibility for breach of treaties or the effect of
hostilities on treaties.
Treaties: General Information
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.
Treaties: General Information
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)
Treaties: General Information
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
Treaties: General Information
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.
Treaties: General Information
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.
Treaties: General Information
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.
Treaties: General Information
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
Treaties: General Information
5. Whatever its particular designation
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.
Treaties: General Information
5. Whatever its particular designation
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).
Treaties: General Information
5. Whatever its particular designation
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.
Treaties: General Information
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.
Treaties: General Information
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’.
Treaties: General Information
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
Treaties: General Information
Agreements between states governed by domestic
law
States also contract
domestic law.
with
each
other
under
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
Treaties: General Information
Capacity to make treaties
Treaties are made
- Between
subjects
predominantly states;
of
international
law,
- Between states and international organizations
and
- Between international organizations.
Every state possesses the capacity to conclude
treaties (Article 6).
Treaties: General Information
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.
Treaties: General Information
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)
Treaties: General Information
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.
Treaties: General Information
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)