Defining International Law

IR303 – International Law

Tuğba Bayar
Presentation Title

Ø IR and IL two seperate but overlapping

disciplines.
Ø IR and IL can be interested in the same
phenomena for different reasons.
Ø IR � Understand and explain the intl-
Ø IL � Regulation of the intl-
Ø IL provides practical insight to IR.
Ø IR scholars speak about institutions, regimes,
norms, organizations.
Ø IL scholars speak about treaties, conventions,
customary law, legally created institutions etc.
T.Bayar

What is LAW?

ü Order � Living together without anarchy.

ü Binds members of the community together.
ü Recognized values and standards.
ü Rules of the order.

«Ubi societas, ibi ius»

(Wherever there is society, there is law.)

 T.Bayar

v Domestic law (national law / municipal law)

- Internal law of a sovereign state.
ØPublic Law: (i.e.: constitutional law, administrative law,
tax law and criminal law, etc.)
ØPrivate Law: (i.e.: law of property and trust, family law,
the law of contract, mercantile law and the law of tort.)

v International law
- Countries
ØPublic International Law : Governs relations between states or intra-
governmental organizations like UN.
ØPrivate International Law : Conflict of national laws. Regulates the
relationships between physical and judicial persons of different nationalities.
(Business actions, companies in the neo-liberal World.)
T.Bayar

International Private Law (aka. Conflict

of Laws)

ü Private international law comes into play whenever

a court is faced with a question that contains a
foreign element, or a foreign connection.
ü i.e. if a conflict arises concerning a contract
between an English company and a Dutch
company.
T.Bayar

• International Public Law (aka.

International Law)
ü deals with the conduct of nation states and international organizations among
themselves;
ü as well as the relationships between nation states and international organizations
with persons, whether natural or juridical.
ü (Uçak geçişleri önceden izin istenerek yapılır. Diplomatik konular, Kaşıkçı Case,
Tehran Hostage Case, Türkiye and Netherlands Problem, Who is the state?,
Referandums (Catholonia, Kurdish case but they are not seen as state, USSR
and Yugoslavia and suddenly collapsed. Macedonia and so on.))
ü Interconnected railways. Who is in charge?
T.Bayar

What is international law?

• IL is a relatively new concept.
• It has expanded significantly in the 20th Century.
• It is still not mature.
• It is still expanding.
• Vertically.
• Horizontally.
International International Law
Relations Law
 T.Bayar

What is international law?

Ø Anarchy.

Ø Framework for the practice of stable and organized.

international relations.

Ø Inter-state relations.

Ø Inter-IGO/IO relations.

Ø IO-State relations.
Presentation Title

Anarchy � at its core it simply means that there is no superior

power within a system that would be able to enforce rules.

This does not mean that anarchy always results in chaos and
the unrestricted use of violence, since there are other ways
through which one may prevent the widespread use of
violence than imposing a central form of authority

in the international system, this may be done for instance

through �international regimes, � balance of power or different
forms of � hegemony.
Presentation Title

Municipal Law vs. International Law

1. Sources
2. Compliance / Dispute settlement
3. Lawmakers & Subjects
4. Sanctioning
5. Role of politics
T.Bayar

• Domestic systems= Law is above individuals

- Individuals do not make law.(But they are indirectly
make their choices with the elections.) They obey or
disobey.
• International system =
- States make law
- States obey or disobey law.
Presentation Title

International Law
• Consent.
• Sovereignty (Core of the consent).
• Reciprocity (Mutualty). � favours, benefits, or penalties that are
granted by one state to the citizens or legal entities of another
(Visa operations USA-Türkiye – slow down) (nasıl davranırsan
öyle davranırım.)
• Pacta sunt servanda. (Ahde vefa-Promises must be kept-Treaty)
T.Bayar

International Law
• How is law made in a state?
- LEGISLATIVE
• Proposal is prepared.
• Submitted to the parliament. Discussed.
• Voted (simple majority or qualified majority)
• If approved then assessed (according to the constitution)
• If approved then published in the official gazette.
- EXECUTIVE
- JUDICIARY
T.Bayar

International law lacks:

1. Legislature (a parliament)
2. Executive (a government)
3. Judiciary (court system)
No legal order.

Opposite to classical law systems.

T.Bayar

• There is no central international body that creates

public international law
• No institution
- to establish rules
- to clarify rules
- to observe who breaks rules
- to punish

International law = Law?

T.Bayar

Sanctioning
• Law = backed by sanctioning
Intl law � No unified system of sanctions.

• Use of force – cases – justified and legal

i.e. UN system – UNSC
• Economic sanctions: 1966 - Rhodesia
• Military sanctions: 1950 – Korean war
Both Econc and Military: 1990 – Iraq
• Coersive action � Rare
• 3rd Party Compliance ?!!
T.Bayar

• States sign treaties, agreements etc.

• Show consent.
• They create laws that they want to follow.
• Contrary to common belief � non-compliance is
rare.
• States observe international law.
• The element of reciprocity.
• Rewards: friendly relations.
T.Bayar

The function of politics

• States only violate on issues vital to their interests.

• No clear separation btw intl law and intl policy.

• In intl law, policy is much closer to the hearth of the

intl legal sys.
T.Bayar

IL in IR Theory
• Realists � (Military power based)Power.(International system based on anarchy.
Kim güçlüyse o oyunu yönetir.) (Güçlü (hegemons) tarafından ve onun hayrına
Kural koyulur.)
• Liberals � Cooperation / Interdependence (based upon anarchy. Çatışma
yönetilebilir, birbirimizi tehlikeye atmak yerini collobrate edebiliriz. They believe
that mutual interdependence. IL for facilitate for the interconnectedness. )
• Social Constructivists � Identity / Language / Rhetoric / Values/ Norms. (They
believe that our identity matter, language matter. Norms and values are reflected
by international law. Law is quite realte to formulation or codification the
sentence, which represent us, international perceptions.)
• Marxists � Economic approach – Classes (More economics oriented. Certain
states “core states they hold economic benefits and they are others. Higher
stratus exploding lower. Bu sebeple ekonomik güçlünün ekonomik zayıfı
kullandığı bir araç olarak IL’I görür. )
T.Bayar

• Positivism developed as the modern nation-state

system emerged, after the Peace of Westphalia in
1648, from religious wars.
• 18th C.: Intellectual ideas, rationalist philosophies,
doctrine of intl law.
• 19th C.:Practical, positivist theories. Based on
West. Christian, European states, European
values. Democracy, nationalism (French Revln)
Industrial revolution � public and private institutions
expanded.
• Growth of intl agreements, customs, regulations.
• Ideas of intl law emerged btw wars.
T.Bayar

International Law Today

• Expanding (Cyber law?)
• Tension :
new standards of behaviour/conduct vs. already
established rules
• Changes in int’l community � changes in intl law
• i.e. Nuclear arms / status quo / balance-inbalance
• Scope of intl law today: immense
• Expanded horizontally
Sources of International Law
IR303 – International Law
Tuğba Bayar
T.Bayar

ICJ Statute - §38

1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. international conventions (treaties), whether general or
particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice
accepted as law;(customary law-teammül- örfi hukuk-unwritten)
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
Presentation Title

§59
The decision of the Court has no binding force
except between the parties and in respect of
that particular case.
T.Bayar

1. Treaties
• Written.
• International – multilateral / Regional / Global
• Treaty = Treaty, convention, charter, covenant,
pact…
• Treaty � formal consent given.
• Ratification or accession � Through constitutionally
appropriate state organ.
• Reservations, withdrawals, amendments,
modifications
 T.Bayar

The Vienna Convention on the Law of

Treaties (VCLT)
• It was adopted on 22 May 1969.
• The Convention entered into force on 27 January
1980.
• The VCLT has been ratified by 114 states as of April
2014.
• Some countries that have not ratified the Convention,
such as the United States, recognize parts of it as a
restatement of customary law and binding upon them
as such.
T.Bayar

• It applies only to treaties concluded between states.

• It does not cover agreements between states
and international organizations or between
international organizations themselves.
• Agreements between states and international
organizations, or between international organizations
themselves, will be governed by the 1986 Vienna
Convention on the Law of Treaties between States
and International Organizations or Between
International Organizations if it ever enters into force.
T.Bayar

Treaty Law
Advantage
= accepting provisions as binding legal obligations

Disadvantage
=Consent to be bound
i.e. Migrant Workers Convention < 50 States
= Reservations possible (spoils integrity of the text)
undermine serious obligations.
T.Bayar

2. Customary International Law

• Unwritten / Regional / Global
• Derive from "a general practice accepted as law.«
• Consistent state practice
• Belief that the practice is required by law (opinio
juris) (eğer bir customsa bunu nitelendirmen lazım)
• CIL is comprised of all the written or unwritten rules
that form part of the general international concept of
justice.
Presentation Title

• Unlike treaty law, which is only applicable to

those states that are parties to the particular
agreement, customary law is binding upon
all states, regardless of whether they have
ratified a treaty.
• is limited in that it is not codified in a clear
and accessible format and the content of the
rules is generally less specific that what you
may find in a treaty.
Presentation Title

How does a rule become customary international

law?

• When states respect certain rules consistently in

their international and internal relations, with legal
intentions, these practices become accepted by
the international community as applicable rules of
customary international law.

State Practice + Legal nature of the practice.

T.Bayar

3. General Principles of Law

• Controversial
• Found in statements of consensus
(global summits, UN Resolutions)
• Influence decision-makers (?)
T.Bayar

Jus Cogens
• Roman Law
• Consent
• The prohibition of the use of force
• The prohibition of International Crimes (Genocide)
• The prohibition of violation of HR (Slavery, Human
Trafficking)
• International acceptance of fundamental and
superior values
T.Bayar

4. Judicial Decisions
• Meaningful for international law
• Which courts???
T.Bayar

5.Writings of Jurists
Law of Treaties
IR303 – International Law
Tuğba Bayar
T.BAYAR

What is an AGREEMENT?

• Done in between the subjects of law (states and

Ios – between states and IO, IO-IO,states and
states).
• Creates legal consequences.
• Create duties and rights.
• Mutual consent declaration.

• Treaty formation � formal method / direct method

/ requires vast amount of time.
T.BAYAR

By treaties:

ØWars terminate
ØDisputes settled
ØTerritory acquired
ØSpecial interests determined
ØAlliances formed
ØInternational organizations created
T.BAYAR

Various names:
Treaty (Andlaşma)
Agreement, Accord (Anlaşma)
Convention (Sözleşme)
Covenant, Pact (Misak)
Charter (Şart)
Protocol
General Act (Genel senet)
Final Act (Nihai senet)
Statute (Statü)
Presentation Title

The functions may still vary:

v Treaty�consent harmonization and requires ratification;

v Agreement�of secondary importance, requires least procedures,
generally done by IOs;
v Convention�Indicates important and rule setting treaties;
v Covenant�Indicates basic regulations of IR they are multilateral;
v Charter� Founding treaties.
v Protocol�Supplamentary treaties or treaties with very limited
qualifications;
v General Act�They content general rules/provisions and they are
multilateral.
v Final Act�Treaties adopten in a conf.
v Modus Vivendi�Temporary agreements. Like short term
merchandise treaties.
v Statute� They indicate the working rules and conditions of IOs.
Presentation Title

Classification of Treaties:

I. According to Issue Areas

Ø Political treaties
Ø Military treaties
Ø Economic and commercial treaties
Ø Cultural treaties
Ø Alliance treaties
Ø Transportation and communication treaties
Ø Consular treaties
Ø Judicial assistance treaties etc.
Presentation Title

II. According to Parties

Ø Bilateral Treaties
Ø Multilateral Treaties

III. According to the identity of the parties

Ø Interstate treaties
Ø Interorganizational treaties
Ø Treaties among sov. states and limited authority
states etc.
T.BAYAR

• Treaties are governed by the Vienna

Convention on the Law of Treaties (1969).

• §2 of the VCLT defines treaties as follows:

«"Treaty" means 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.»
 T.BAYAR

Vienna Convention on the Law of Treaties (VCLT)

1969
(Viyana Andlaşmalar Hukuku Sözleşmesi)

• Treaty entered into force in 1980.

• By the §6 the VCLT affirms that «every state possesses the
capacity to conclude treaties.»
• Reflects mostly customary int’l law:
Such as: Rules on interpretation
Material breach
Fundamental change of circumstances.

• Reflects nature and characteristics of treaties.

T.BAYAR
T.BAYAR

• The customary status of VCLT � Universal bindingness!!!

• Binding custom governing all states.
• Excludes IOs.

Non-binding Agreements
• Designed to crate clear understanding between the parties
to the agreement on agreement reached between them,
without creating legal binding on either party.
• Legally non-binding agreement.
• Gentlemen’s Agreement.
• An expression of political will harmonization.
• 1941 Roosevelt & Churhill � The Atlantic Charter (a pivotal
policy statement) - became the basis for the modern United
Nations. (expression of political will)
T.BAYAR

Treaties are divided into two (for this class):

1.Law making treaties: Participation of large

number of states + Procedures bind them
all. i.e. The Antarctic Treaty, The Genocide
Convention. (make international law)

2.Treaty-contracts: Bilateral or only a few

states. (not make international law)
T.BAYAR

The Conclusion of Treaties

• The text can be composed of multiple texts.

• The text should be scetched.
• By the authorized persons.
• Either within the frame of a conference – in which a proposal
is discussed.
• Or within an IO.
Presentation Title

Authentication of the treaty text (resmileşmesi):

Ø Signature (Okuma yazmaları yoksa, parmak basabilirler.)

Ø Initils

Gaining bindingness:

Ø Basic procedure: by signature

Ø Ratification (eg. Parliaments-house of lords or another)
Ø Sometimes referandum.
T.BAYAR

Ø Accession
Depends:
• If the treaty allows / If the treaty is inclusive
• By a common decision
• By an extra treaty
• Türkiye accession of the EU.
• Finland, Sweeden accesstion to NATO.
• Bazı anlaşmalar dahiliyeti kabul etmeyebilir.
Ø Entry into Force
i. According to domestic law operations
• Monist/dualist legal system of the state.
• Official promulgation / Publication (of the text). (RG’de yayınlanma)
ii. According to domestic law operations
• Deadline
• Certain number of ratifications
Presentation Title

Promulgation (Resmi duyuru)

(aka Proclamation in the U.S.)

Ø Publication:
• Official gazette, national journal etc.

Ø In IOs:
• Does not exist.
• For supranational organizations like the EU �
Official journal of the European Union / Journal
Officiel de l’Union Européenne
T.BAYAR

Registration (Tescil):

Ø By the UN. – to prevent "secret diplomacy"

Ø According to article 102 of the UN Charter:

“1. Every treaty and every international agreement entered into by any Member of
the United Nations after the present Charter comes into force shall as soon as
possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been
registered in accordance with the provisions of paragraph 1 of this Article may
invoke that treaty or agreement before any organ of the United Nations.” (Önceden
anlaşmayı göndermezsen, bir anlaşmazlık da buraya (ICJ) gelemezsin!)
T.BAYAR

Ø Validity of Treaties
A treaty is invalid when (Null/Void/Non existence)
- Signed by an unauthorized person;
- Mistake or Error; (i.e. Border agreement – geographical data
is false.)
- Fraud; (Hile. Some data is wrong on purpose.)
- Corruption; (the representative is bribed etc.)
- Coercion upon the representative; (consent is absent)
- Coercion upon a state; (threatening by use of force)
- Jus Cogens violation;
VCLT ’69, §53: Treaties conflicting with a peremptory norm of general international
law (jus cogens) A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. (Limit is the human right violation.)
BASİTÇE İNSAN HAKLARINI YOK SAYAMAZSIN!
T.BAYAR

Ø Interpretation of the Treaty

- Legal interpretation.
- Aim is to clarify the uncertainities, ambiguities.
- Various persons can be in charge of interpretation.
i) Common interpretation of the parties; ii)interpretation of int’l
courts or arbitration.
- Principles of interpretation:
Cannot contradict with the context.
In good faith.

Sometimes may require specialists or politicians and so on.

T.BAYAR

Ø Force Majeure (Mücbir sebep)

- Conditions that make implementation impossible.

- The limit of pacta sunt servanda.
- Unable to fulfill its obligations.
- Unforeseeable circumstances that prevent someone from
fulfilling a contract.
- War, terror, ivil or military disturbances, acts of God like
catastrophe, etc.
* When the diplomatic relations are cut off? (Treaty remains in
effect until otherwise is declared.)
T.BAYAR

Ø Reservation (Çekince)

• When a state is content with most of the terms of an

agreement but has drawbacks about certain provisions.
• Excluding.
• State wants to be bound by the treaty.
• State does NOT want to be bound by that certain provision.
Disadvantages:
• Has a legal effect
• Harms the integrity of the treaty.
• Can dislocate the whole purpose of the agreement
• Not a disadvantage in bilateral agreements � becomes
mutual (basitçe anlaşmadan madde kaldırılar iki ülke
arasında olan anlaşmada)
T.BAYAR

Termination, denunciation or withdrawal

(sona erme, durdurulma, antlaşmadan çekilme)

Ø By common consent.
Ø By a claus of the given treaty.
Ø By consensus.
Ø As a result of particular incidents or events.
The Subjects of International Law
Legal Personality
or
International Personality
IR303 – International Law
Tuğba Bayar
T.BAYAR

Legal Personality

In municipal law:

• individuals,
• companies
• public corporations

are legal entities.

T.BAYAR

• In international law:

Rights and duties afforded under the international system

determine who the subjects are.
T.BAYAR

• A subject of international law is

1. an individual, body or entity;

2. recognized or accepted;
3. as being capable of possessing and exercising;
4. rights and duties;
5. under international law.
(Dixon)
T.BAYAR

HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF

INTERNATIONAL LAW?

An entity is a subject of international law if it has “international legal

personality”. In other words, subjects must have rights, powers and duties
under international law and they should be able to exercise those rights,
powers and duties. The rights, powers and duties of different subjects
change according to their status and functions. For example, an individual
has the right of freedom from torture under international law and states
have a duty under international law not to torture individuals or to send
them to a country, where there is a likelihood of that person being tortured.
This right is a right under treaty law, for example, the International
Covenant on Civil and Political Rights and under customary international
law. The Convention against Torture and Cruel, Inhuman and Degrading
Treatment places obligations on States not to torture and to extradite or
prosecute those who torture.
T.BAYAR

- Legal personality also includes the capacity to enforce one’s

own rights and to compel other subjects to perform their duties
under international law. For example, this means that a subject
of international law should be able to:
(1) bring claims before international and national courts and
tribunals to enforce their rights, for example, the International
Court of Justice;
(2) have the ability or power to come into agreements that are
binding under international law, for example, treaties;
(3) enjoy immunity from the jurisdiction of foreign courts; for
example, immunity for acts of state;
(4) be subject to obligations under international law.
(Dixon)
 T.BAYAR

Q: Who are the subjects of IL?

States & IOs

T.BAYAR

Q: How about non-state actors?

Non-state actors, such as multinational corporations, insurgent or

terrorist groups, or leading charitable or issue-oriented organizations
(NGOs), have sometimes become more influential and powerful than
States.
In spite of this evolution, these actors remain largely outside the field of
international law. They have no, or very few, formal rights of participation,
and they are generally not considered to be internationally accountable
for their actions. Under the current system, non-State actors depend on
States to defend their interests, and they are only accountable for
their transgressions at the level of the State. The system does not
seem to contemplate the situation where non-State actors may have their
own interests that can hardly be defended by States and that in many
parts of the world the power of the State is weak or even non-existent.
T.BAYAR

Q:
What are the criteria of statehood?
 T.BAYAR

• Terrae nullius are no longer apparent. All

territories are owned by certain states.
• Decolonization process ended.
• USSR, Yugoslavia, Czechoslovakia broke up.
• We define states acc. to the Montevideo
Conv. And ‘91Yugoslavia Arbitation
Commission.
 T.BAYAR

The Montevideo Convention on Rights and

Duties of States (1933)
ARTICLE 1
The state as a person of international law should
possess the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the other
states.
T.BAYAR
T.BAYAR
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Arbitration Commission of the Peace

Conference on Yugoslavia (1991)
• The Commission considers: (Opinion #1):

«the existence or disappearance of the state is a

question of fact; … that the state is commonly
defined as a community which consists of a territory
and a population, subject to an organized political
authority; that such a state is characterized by
sovereignty»
 T.BAYAR

• Population:

A certain
minimum # of
inhabitants is
not necessary.

E.g. Nauru,
Tuvalu
 T.BAYAR

• A simple population is not enough for

forming a state. Those people have to
have the ability to realize formation of
a representation that will govern the
state and represent that state in their
foreign relations.
 T.BAYAR

• Territory
No need for defined borders.
The size of the territory does not matter.
A consistent band of territory is
necessary.
E.g. Israel
• A state is composed of soil, air and sea
territories
• A geographical unity is not sought.
 T.BAYAR

üA state can
be
composed
of one
mainland
and islands
(i.e.Greece)
T.BAYAR

ü A state
can be
spread
among
continents
(i.e.Turkey)
T.BAYAR

ü A state can be
composed of
multiple
islands (Japan,
Indonesia)
T.BAYAR
T.BAYAR

ü A state can be composed of multiple mainlands where

foreign states are situated in between. (i.e. USA/Alaska)
 T.BAYAR

• Acquisition of territory can only be done by

adoption of terra nullius or territory of another
sovereign state.
• No terra nullius left today. It was possible till
15th-16th centuries.
• By 16th till 19th Centuries, territory could be
acquired by discoveries.
• By 19th Century could be acquired by
occupation. Conquest was a legitimate way,
as well.
 T.BAYAR

• A form of government / a central control

Sophisticated net of legislative and executive are not

sought. Any kind of governance is acceptable.

• E.g.
Croatia
Bosnia & Herzegovina

• States under mandate cannot become sovereign states,

since they cannot govern themselves independently.
• A public administration network is strictly necessary.
T.BAYAR

• Sovereignty and independence are

integrated elements of having a
government.
• Otherwise, municipalities could also
become states.
• According to its nature, state is never
dependent on another authority than itself.
This is sovereignty by definition.
T.BAYAR

• The first natural result of the sovereignty of each

and every state is, all states are equal.
(=sovereign equality of states)
• The second natural result of the sovereignty of
each and every state is, principle of non-
intervention. (States do not intervene domestic
affairs of each other)
• The third natural result of the sovereignty of each
and every state is, permanent sovereignty over
natural resources. (A reaction to former
colonies)
T.BAYAR

The Legal Right to Self-Determination

• This principle was invoked on many occasions during
World War II.
• Proclaimed in the Atlantic Charter (1941):
«no territorial changes that do not accord with the freely
expressed wishes of the peoples concerned» (Principle
2), «the right of all peoples to choose the form of
government under which they will live» (Principle 3)
«sovereign rights and self-government restored to those
who have been forcibly deprived of them» (Principle 3).
T.BAYAR

Definition:
• Self determination means having the right to
decide on which state to belong to; or to decide
on to establish own state.
• For a newly formed state, the basis of relation of
the constituent state and the public is the self-
determination principle.
• Decolonisation is the main motive of self-
determination.
• The usage of self determination depends on
certain conditions.
• It is NOT an UNLIMITED right.
T.BAYAR

1. If terrae nullius is found.

2. Cannot work against sovereignty of another state.
3. Possible, if consent of the central government of
the sovereign state is obtained.
4. Must respect territorial integrity of sovereign
states. This principle is also approved by the UN
Charter (§2/4.) It cannot function as secession.
(Deintegration of a state!)
T.BAYAR

RECOGNITION
• Necessary for the creation of the
statehood.
• A state comes into being under
international law via ‘recognition’.
• Evidence = a state satisfies the criteria to
become a state
• A political act, not a legal act.
T.BAYAR

EUROPEAN COMMUNITY:
THE GUIDELINES ON THERECOGNITION OF NEW
STATES. [December 16, 1991].
• The political need to take action in both the
Yugoslav and the Soviet Union situations was
mounting.
• On 16 December 1991, the EC Foreign
Ministers meeting in Brussels issued a
'Declaration on the Guidelines on the
Recognition of the New States in Eastern
Europe and in the Soviet Union‘.
 T.BAYAR

The Guidelines list the following requirements:

- respect for the provisions of the Charter of the United Nations and
the commitments subscribed to in the Final Act of Helsinki and in
the Charter of Paris, especially with regard to the rule of law,
democracy and human rights
- guarantees for the rights of ethnic and national groups and
minorities in accordance with the commitments subscribed to in the
framework of the CSCE
- respect for the inviolability of all frontiers which can only be
changed by peaceful means and by common agreement -
acceptance of all relevant commitments with regard to disarmament
and nuclear non-proliferation as well as to security and regional
stability
- commitment to settle by agreement, including where appropriate by
recourse to arbitration, all questions concerning state succession
and regional disputes.
T.BAYAR

The Role of the Trusteeship Council

• Art. 76 (b) UN Charter :

one of the basic objectives of the

trusteeship system is to promote the
‘progressive development’ of the
inhabitants of the trust territories towards
‘self-government or independence’
T.BAYAR

Extinction of Statehood
• Merger
• Absorption
• Annexation

• With Consent
• Without Consent
T.BAYAR

• 1990 � North and South Yemen

Unification
• 1990 � German reunification
(East Germany + Federal Germany)
• 1993 � Czechoslovakia Dissolution : self-
determined split
T.BAYAR

The Fundamental Rights of the

States
• Independence
• Equality
• Peaceful Co-existence
• Protectorates and Protected States
• Federal States
T.BAYAR

Protectorate and protected states

Protectorate:
• Agreement
• NO separate statehood
• Separate legal personality may be involved
• Affording extensive functions
internally/externally

• (Morocco – France / Morocco as a sov. stt.)

T.BAYAR

Federal States
• 2 levels of organization 1.federation/member state; 2.the
federal state (the central authority)
• There are various forms of federation or confederation,
according to the relative distribution of power between the
central and local organs.
• The federal state will itself, have personality, but the question
of the personality and capability of the component units of the
federation on the international plane can really only be
determined in the light of the constitution of the state
concerned and state practice.
• Degree of autonomy � Federated state
• Constitution
T.BAYAR
T.BAYAR
T.BAYAR

Sui Generis Territorial Entities

• Mandates & Trust Territories
• Germany 1945
• Condominium
• International Territories
• Holy See (Vatican)
• Taiwan
• North Cyprus
T.BAYAR

Mandates & Trust Territories

After the end of the WW-I
Decolonization
successors of the remaining League of Nations
mandates
UN Trusteeship Council
i.e. Pacific Islands, Togo, Tanzania, Somalia etc.
The Mandate for Syria and the Lebanon
(1923−1946)
The Kingdom of Iraq under British Administration
(1914-1932.)
T.BAYAR

Germany 1945
With the defeat of Germany on 5 June 1945
Germany was divided into four occupation
zones with four-power control over Berlin
The Soviet Union, the UK, the US and France.
The state of Germany continued, however, the
legal representation was the matter.
Under the 1952 Treaty between the three
Western powers and the Federal Republic
of Germany, full sovereign powers were
granted to the latter subject to retained
powers concerning the making of a peace
treaty, and in 1972 the Federal Republic
of Germany (West Germany) and the
German Democratic Republic (East
Germany) established in 1954 by the
Soviet Union in its zone, recognised each
other as sovereign states
T.BAYAR

Condominium
In this instance
two or more
states equally
exercise
sovereignty
with respect
to a territory
and its
inhabitants.
i.e. Central
America
T.BAYAR

International Territories
A particular territory is placed under a form of
international regime
The UN is able to assume the administration of
territories in specific circumstances.
Attempts were made to create such a regime for
Jerusalem under the General Assembly partition
resolution for Palestine in 1947 as a ‘corpus
separatum’ under a special international regime
administered by the UN (but this never
materialised for a number of reasons)
T.BAYAR

Taiwan
De facto state
Recognized by 23 states
China assumes itself as the mainland of
Taiwan
Taiwan assumes itself as a sovereign
state
(China � Japan � allies / US)
T.BAYAR

Cyprus (TRNC)
• In 1974, following a coup in Cyprus backed by the
military regime in Greece, Turkish forces landed in
the island.
• The Security Council (in resolution 353/1974) called
upon all states to respect the sovereignty,
independence and territorial integrity of Cyprus and
demanded an immediate end to foreign military
intervention in the island.
• 83 – TRNC proclaimed independence
• SC named it illegal/call for withdrawal
T.BAYAR

• On 15 November 1983, the Turkish Cypriots

proclaimed their independence as the ‘Turkish
Republic of Northern Cyprus’.
• This was declared illegal by the UNSC (in resolution
541/1983) and its withdrawal called for.
• All states were requested not to recognise the
‘purported state’ or assist it in any way
• the international community does not recognise the
TRNC
• very heavy dependence of the territory upon Turkey.
T.BAYAR

Palestine
• PLO – Palestine
• 2012 Non member observer state
T.BAYAR

Holy See and Vatican City

• No permanent population
• Diplomatic relns
• Enters into treaties
• Organizational authority of the catholic
church
Subjects of International Law:
International Organizations

Tuğba BAYAR
T.BAYAR April 25, 2024

Who are IOs?

• They operate internationally.
• They are non-state actors.
• They are established by states.
• They are not NGOs.
• They are not MNCs.
T.BAYAR April 25, 2024

IOs ≠ NGOs
NGO= Non-governmental organizations.
- Individuals can be members of NGOs, the members of IOs are
ONLY states.
- Amnesty International, GreenPeace, FEMEN, WWF,
International Red Crescent, International Red Cross, Doctors
without Borders, etc.
IOs ≠ MNCs
Multinational Corporations
- They do not have members. They have shareholders.
- They are established to make profits.
- Mercedes, Starbucks, CocaCola, Nike, Nikon, Samsung,
Johnson&Johnson,etc.
T.BAYAR April 25, 2024

• United Nations (UN),

• European Union (EU)
• African Union (AU)
• International Monetary Fund (IMF)
• North Atlantic Treaty Organization (NATO)
• Organization for Security and Co-operation in
Europe (OSCE),
• World Trade Organization (WTO)
• Council of Europe (COE),
• The World Bank (WB),
• International Labour Organization (ILO),
• International Police Organization (INTERPOL).
T.BAYAR April 25, 2024

IOs can be classified according

to geographical criteria:
• Global IOs: Any state can become a
party state. i.e. UNESCO, International Criminal
Court, Int’l Maritime Organization
• Regional IOs: For instance the
European Court of Human Rights do not
deal with the human rights violations in
Latin America. / Black Sea Economic
Cooperation Organization / GCC / Arab League /
African Union
T.BAYAR April 25, 2024

DEFINITION:
• The International Law Commission
offered the following definition for IOs in
1956 (and later in 1975):
organization established by a treaty or
other instrument governed by international
law and possessing its own international
legal personality
T.BAYAR April 25, 2024

• IOs have 3 main elements:

1. Established by a treaty that is governed
international law;
2. They have a separate legal personality than
states; (substantially a derivative legal personality)
3. They have their own organs and bodies,
they have a sustainable & permanent
structure.
T.BAYAR April 25, 2024

Why are IOs established?

• In a globalized world, they facilitate
cooperation across the state frontiers.
• Multilateralism / Interdependence
• Cooperation areas can be anything: (as
long as they do not violate human rights)
Peacekeeping/environment/health/financi
al/ non-proliferation/security/commerce,
customs/peace enforcement.
T.BAYAR April 25, 2024

Membership
• Exclusive membership / Inclusive
Membership.
• Original members (founding) / Acceding
members � Equality.
• Exceptions to equality principle:
ü Veto power in the UN.
ü Qualified vote right � In commercial/monetary
orgs like the IMF or the WB. (To contributes
more has more say.)
T.BAYAR April 25, 2024

IOs vs States
• An IO does not have a territory.
• They do not have a separate
citizenship/population.
• The duties and rights of an IO are
determined by the founding members in
the founding treaty.
• IOs do not have the same sovereignty
rights that states enjoy. (States sov. rights are
unlimited. Sov.rights of IOs are limited to their founding
treaty, concluded by states.)
T.BAYAR April 25, 2024

The Roles of Intergovernmental

Organizations (IGOs)
• Adjust behaviour
• Roles:
Some establish regularized processes of
information gathering, analysis, and
surveillance. (i.e. ECOSOC)
to make rules, settle disputes, and punish those
who fail to follow the rules. (İ.E. WTO)
to resolve major substantive problems (i.e.
UNIFIL)
key roles in bargaining, serving as arenas for
negotiating and developing coalitions.
T.BAYAR April 25, 2024

Organs of IOs
• Fundamental organs (like 6 main organs
of the UN.)
• Secondary organs (like the UNESCO, an
organization established by a resolution
of the UNGA.)
T.BAYAR April 25, 2024

Personality
• Separate and distinct personality
• The int’l personality appears in the
constituent treaty.
• Powers & Purposes of the Organization �
personality.
• Functions within international law.
T.BAYAR April 25, 2024

Powers
• Determined by the states that create the
org.
• Function of the common interests.
• Capacity to conclude treaties.
T.BAYAR April 25, 2024

Responsibility
• Responsible for their wrongful acts.
• Responsible for damages/injuries.
• Compensate
State Responsibility

Tuğba BAYAR
T.BAYAR

• State responsibility is a fundamental

principle of IL.
• A cardinal institution of IL.
• Arises from:
i. The nature of the international
legal system,
ii. The doctrines of state
responsibility,
iii. Equality of states.
T.BAYAR

What is state responsibility?

• What are the legal consequences of violation of
IL?
• What happens when a state breaches
international law?
• Responsibility: A moral & legal concept.
v Legal responsibility arises when the behaviour of
the subject does not conform with the
necessities of IL.
T.BAYAR

• Whenever one state commits an

internationally unlawful act against another
state, international responsibility is
established between two.

• A breach of an international obligation gives

rise to a requirement for reparation.
T.BAYAR

Source
• International Law Commission’s
«Articles on Responsibility of States for
Internationally Wrongful Acts» (2001)

- Codification of CIL.
- The Articles deal with attribution and
wrongfulness.
T.BAYAR

Conditions in which state

responsibility may arise:
i. Existence of a wrongful act or existence
of an impairing activity.
ii. The aforementioned act or activity
causes a damage.
iii. The aforementioned act or activity is
attributed/ imputed to one subject of
international law.
iv. There are no causes that would lift up
the responsibility.
T.BAYAR

§1
«Every internationally wrongful act of a State
entails the international responsibility of that
State.»

� State carries the responsibility of its

wrongful acts.
T.BAYAR

§2
«There is an internationally wrongful act of a
State when conduct consisting of an action
or omission:
(a) is attributable to the State under
international law;
and (b) constitutes a breach of an
international obligation of the State.»
E.g.: The breach of a treaty, the violation of
the territory of another state, a damage to
state property.
T.BAYAR

Elements:
1.Breach requires international responsibility.
2.Breach can be an action or an omission or a
combination of both.
3.There must be an obligation to be able to talk
about a breach.
T.BAYAR

ü Objective Element� If there is a breach.

ü Subjective Element � If it is attributable to

the state
T.BAYAR

§3
«The characterization of an act of a State
as internationally wrongful is governed by
international law. Such characterization is
not affected by the characterization of the
same act as lawful by internal law.»
T.BAYAR

• A state cannot rely on its domestic law to

escape from its international
responsibilities.
T.BAYAR

§13
An act of a State does not constitute a
breach of an international obligation
unless the State is bound by the
obligation in question at the time the act
occurs.
T.BAYAR

Fault
� Fault. Legally wrongful act. Violation.
Breach. This act should cause a damage.
• Once an unlawful act has taken place,
which has caused injury and which has
been committed by an agent of the state,
that state will be responsible to the
suffering state.
T.BAYAR

Fault
ü Irrespective of good or bad faith/
ü Conscious or unconscious.
ü Intentional (dolus) or Negligent (culpa)
ü Can be active or still:
ü i.e. seizure of property of a foreigner =
activity. / Not passing the necessary law
in concordance with a treaty = still.
T.BAYAR

Invocation of State Responsibility

§42
«A State is entitled as an injured State to invoke the responsibility of another State if the obligation
breached is owed to: (a) that State individually; or (b) a group of States including that State, or the
international community as a whole, and the breach of the obligation: (i) specially affects that
State; or (ii) is of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the obligation.»

• The injured state claims that the relevant obligaton is

a liability of the perpetrator state, vis-a,vis itself or a
group of states.
• If the obligation is a liability vis-a-vis entire states, all
these states can complaint as injured states.
• As a result, state responsibility can be invoked as a
bilateral or a multilateral concept.
T.BAYAR

Attribution (Imputability)
• The conduct of an organ of the State is
attributable to that State.
• The reference to a “State organ” covers all
the individual or collective entities which
make up the organization of the State and
act on its behalf.
• That the State is responsible for the
conduct of its own organs.
T.BAYAR

• Imposing upon the state absolute liability

wherever an official is involved encourages
that state to exercise greater control over its
various departments and representatives.

• This law imposes upon the state absolute

liability wherever an official is involved.

• This law encourages state to exercise

greater control over its various departments
and representatives.
T.BAYAR

• Directly committed by a state & directly

affecting other states
• Directly committed by an int’l organization &
directly affecting other states or int’l
organizations
• A state organ / An organ of an int’l organization
• Individual
• Mob violence – insurrections – civil wars
T.BAYAR

• Civil servants, military personnel, security

forces may give rise to state responsibility.
= Those that are allowed to commit acts on
behalf of the state.

• Private individuals � not state officials � state

is not liable for their acts � state may be held
responsible for failing to exercise the control
necessary to prevent such acts.
T.BAYAR

Attribution
§4
«1. The conduct of any State organ shall be
considered an act of that State under international
law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever
position it holds in the organization of the State,
and whatever its character as an organ of the
central Government or of a territorial unit of the
State.
2. An organ includes any person or entity which has
that status in accordance with the internal law of
the State.»
T.BAYAR

Attribution
§5
«The conduct of a person or entity which is
not an organ of the State under §4 but which
is empowered by the law of that State to
exercise elements of the governmental
authority shall be considered an act of the
State under international law, provided the
person or entity is acting in that capacity in
the particular instance.»
T.BAYAR

§8
«The conduct of a person or group of
persons shall be considered an act of a
State under international law if the
person or group of persons is in fact
acting on the instructions of, or under the
direction or control of, that State in
carrying out the conduct.»
T.BAYAR

Attribution: State organs

•The reference to a State organ in §4 is intended in
the most general sense. It is not limited to the organs
of the central government, to officials at a high level
or to persons with responsibility for the external
relations of the State. It extends to organs of
government of whatever kind or classification,
exercising whatever functions, and at whatever level
in the hierarchy, including those at provincial or even
local level.
T.BAYAR

Attribution
• State � abstract entity

• The liability is imposed upon the state

whenever an official is involved.

• This encourages that state to exercise

greater control over its various
departments and representatives.
T.BAYAR

Ultra Vires Act

• An unlawful act can be imputed to the
state even when it was beyond the legal
capacity of the official involved.
T.BAYAR

Act or Omission
• Breach of a treaty

• Violation of the territory of another state

• Damage to a state property

T.BAYAR

Human Rights Violations

• HR violations also cause damage.
• State responsibility is a sphere that only deals with
foreigners.
• Protection of human rights does not distinguish between the
citizens and foreigners.
• State responsibility shall be clearly distinguished from human
rights protection systems.
• HR violations are addressed by the international criminal law.
• Human rights mechanisms can be activated by individuals.
• State responsibility mechanisms can only be activated by
states.
T.BAYAR

Damage
• Must primarily be a part of a right given
by international law.
• It can be material
• It can be relevant to state interests.
• It can be direct or indirect. (In many
incidents, international courts decide that
only direct damages require state
responsibility. Debatable.)
T.BAYAR

Distinction between a protected

right and an interest (korunan hak vs. menfaat)
• The damage to cause international
responsibility is supposed to be related to
a protected right.
• Then, damaging direct or indirect
interests of sbjs of international law is not
a damage that would require international
responsibility.
T.BAYAR

Distinction between a material

damage and an moral damage
(maddi hasar / manevi hasar)
• Formerly only material damages were
taken into account.
• At the moment moral damages also
require state responsibility.

i.e. Compensation paid for the relatives of

the one that died in an incident.
T.BAYAR

Initial/immediate damage vs.

mediate damage

• Initial/immediate damage � Damage

given directly to a state.
• Mediate damage � Giving harm to the
citizens of a state (will be studied under
diplomatic law)
T.BAYAR

Circumstances Precluding
Wrongfulness
1. State consent
(i.e. When troops are sent to another state
upon the request of the latter.)
2. Self-Defense (in conformity with the UN
Charter)
3. Countermeasure
4. Force Majeure
** ONLY EXCEPTION: JUS COGENS **
T.BAYAR

Circumstances Precluding
Wrongfulness
• Force majeure (Mücbir sebep ) : unforeseeable
circumstances that prevent someone
from fulfilling a contract
i.e. war, riots, fire, flood, hurricane, typhoon,
earthquake, lightning, explosion, strikes, lockouts,
slowdowns, prolonged shortage of energy supplies
T.BAYAR

• état de nécessité (zaruret hali) : a situation in

which the sole means by which a state can
safeguard an essential interest from a grave
and imminent peril is to sacrifice another
state’s interest of lesser importance.
i.e. State's "political or economic survival, the
continued functioning of its essential services,
the maintenance of internal peace, the survival of
a sector of its population, [and] the preservation
of the environment of its territory or a part thereof
T.BAYAR

The Consequences
• Reprisal is prohibited in int’l law.
• When a damage, loss, injury happens a
reparation is necessary.
• Cessation and Non-repetition: cease the
wrongful act (in the absence of a direct injury:
they may call for cessation and for assurances
and guarantees of non-repetition)
• Reparation: make full reparation for the injury,
whether material or moral, caused by its
wrongful conduct.
T.BAYAR

The Forms of Reparation

• The responsible State may
take: restitution, compensation,
and satisfaction (§34).

• Restitution (istirdat, eski haline geri

getirme.) restitution is maintained as the
primary form of reparation.
T.BAYAR

• If cessation or reparation is denied by the

responsible State, a further mechanism
for the implementation of responsibility is
the taking of countermeasures. (These
are dealt with in the 2001 ILC Articles as
an aspect of invocation.)
 T.BAYAR

The law of state responsibility encompasses a

variety of issues:
• First, it defines the circumstances in which a state will be held to have
breached its international obligations, as well as the limited
catalogue of justifications and defenses a state may rely upon in
order to avoid responsibility for an otherwise wrongful act.
• Second, it covers the consequences of the breach of an international
obligation, including in particular the central obligation to make full
reparation, as well as the obligation to put an end to continuing
wrongful acts.
• Finally, it deals with the way the responsibility arising from breach
of an international obligation is implemented, in particular
governing which states may invoke the responsibility of the
wrongdoing state, as well as the means by which responsibility may
be implemented, in particular through the adoption of
countermeasures.
T.BAYAR

• for instance, the breach of a treaty, the

violation of the territory of another state,
or damage to state property
• in 1955 when Bulgarian fighter planes
shot down an Israeli civil aircraft of its
state airline, El Al
T.BAYAR

Case: Rainbow Warrior

T.BAYAR

The Sinking of the Rainbow Warrior

(flagship of the Greenpeace fleet)
• The Rainbow Warrior Arbitration between France and New Zealand (1990).
• In the wake of the bombing, a flotilla of private New Zealand yachts sailed to Moruroa
to protest against a French nuclear test.
• In 1985 French agents destroyed the vessel Rainbow Warrior in harbour in New
Zealand. (codenamed L’Opération Satanique) The UN Secretary-General was asked to
mediate.
• His ruling (1986) provided inter alia for French payment to New Zealand and for the
transference of two French agents to a French base in the Pacific, where they were to
stay ( be detained at the French military base) for three years and not to leave without
the mutual consent of both states.
• However, both the agents were repatriated to France before the expiry of the three
years for various reasons, without the consent of New Zealand.
• The 1986 Agreement contained an arbitration clause and this was invoked by New
Zealand. The argument put forward by New Zealand centred upon the breach of a
treaty obligation by France, whereas that state argued that only the law of state
responsibility was relevant and that concepts of force majeure and distress
exonerated it from liability.
T.BAYAR

Case: El Al Flight 402

1955 Bulgarian fighter planes shot down an

Israeli civil aircraft of its state airline El Al.

(Bulgaria Agrees to Pay $195,000 to Israel

for Shot Down El Al Plane.)
T.BAYAR

Case: Nicaragua vs. USA

• US laying mines in Nicaraguan internal or

territorial waters and certain attacks on
Nicaraguan ports, oil installations and a
naval base.
• ICJ found the acts imputable to the US.
T.BAYAR

Case: Corfu Channel

T.BAYAR

Case: Corfu Channel

• Mines in the channel.
• Who laid is not known.
• Though Albania knew about the
existence of the mines.
• Albania held responsible.
Albania did not notify other states that there
are seamines in their territorial waters. (Not
notifying = passive fault.)
T.BAYAR

Case: Gaza Flotilla Raid

• (Israel pays over $21 million to families)