Law of Treaties

IR303 – International Law

Tuğba Bayar
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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.
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By treaties:
Wars terminate
Disputes settled
Territory acquired
Special interests determined
Alliances formed
International organizations created
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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)
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The functions may still vary:

 Treatyconsent harmonization and requires ratification;

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

I. According to Issue Areas

 Political treaties
 Military treaties
 Economic and commercial treaties
 Cultural treaties
 Alliance treaties
 Transportation and communication treaties
 Consular treaties
 Judicial assistance treaties etc.
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II. According to Parties

 Bilateral Treaties
 Multilateral Treaties

III. According to the identity of the parties

 Interstate treaties
 Interorganizational treaties
 Treaties among sov. states and limited authority
states etc.
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• 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.»
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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.

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• 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)
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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)
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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.
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Authentication of the treaty text (resmileşmesi):

 Signature (Okuma yazmaları yoksa, parmak basabilirler.)

 Initils

Gaining bindingness:

 Basic procedure: by signature

 Ratification (eg. Parliaments-house of lords or another)
 Sometimes referandum.
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 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.
 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
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Promulgation (Resmi duyuru)

(aka Proclamation in the U.S.)

 Publication:
• Official gazette, national journal etc.

 In IOs:
• Does not exist.
• For supranational organizations like the EU 
Official journal of the European Union / Journal
Officiel de l’Union Européenne
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Registration (Tescil):

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

 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!)
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 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!
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 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.

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 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.)
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 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)
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Termination, denunciation or withdrawal

(sona erme, durdurulma, antlaşmadan çekilme)

 By common consent.
 By a claus of the given treaty.
 By consensus.
 As a result of particular incidents or events.