Prof. Dr. Serap TELLI AKiPEK Prof. Dr. 6. ithan AKIPEK Ankara University Law Faculty Ankara University Law Faculty Faculty Member Emeritus Dr. Erkan AKDOGAN Ankara University Law Faculty Research Assistant INTERNATIONAL LAW A SUMMARY Ankara 2018Tiwrhan kitabevi TURHAN POLAT EGITIM VAKFI iKTISADi isLETMESi Address: Yiiksel Caddesi No: 8/8 06650 Kizilay-Ankara Tiirkiye Phone: (0312) 418 82 59 ¢ Fax: (0312) 418 75 91 e-mail: bilgi@turhankitabevi.com.tr www.turhankitabevi.com.tr November 2018 ISBN 978-605-313-063-5 Printing: Ozbaran Ofset Matbaacilik San. ve Tic. Ltd. $ti. Phone: (0312) 394 45 60 Reproductions of Figures 3-9 © Gizem Akdogan Kokosis 2018 Book Design Aysun Bakar All rights emanating from the first edition of this book, published by Turhan Polat Eyitim Vakéi Igletmest in 2018, belong to Turhan Polat Egitim Vakf isletmesi. Any copy, reproduction or publication hereof in any ‘means is strictly prohibited, and without prior authorization, itis prohibited to quote fully or in part lacking any proper reference, Copyright © Turhan 2018.PREFACE The purpose of this book is to present readers, most of which are presumed by co-authors hereof to be students, with understandable and communicable explanation of basic concepts of international law, or as some learned writers put it centuries ago, the law of nations. The whole work is based on the systematic index - nomenclature of its system and principles compiled in a separate book already published by the co-authors in Turkish". However, essentials and substance of the text are based on lectures by E. Prof. Dr. O. ithan Akipek given in Bilkent University for almost 2 (two) decades. Overall, one should note that this book is intended and shall be read as a summary rather than an ambitious and comprehensive textbook, therefore, some critical topics are excluded, e.g. composition and functioning of the UN Security Council or UN peacekeeping operations, and some vital issues are omitted to ensure brevity, e.g. international environmental law, international economic law or international criminal law. In turn, some topics, e.g. law of the sea or relations of states, might appear to be overemphasized, or rather lengthy; however, these are the culmination of the ideas, rules and reasoning throughout the book and due to their significance in international practice. In order to achieve the purpose hereof, some quintessential information are provided in footnotes and a short bibliography is appended hereto for further study. In some cases, especially in law of the sea, text is supplied with figures; in others, exemplary documents are given, e.g. in law of the treaties. Serap TELLI AKIPEK, ©. ilhan AKIPEK, Erkan AKDOGAN, Devletler Hukuku Sistematik Dizini (Nomenclature), Ankara, Turhan, 2014.Iv] In short, the basic idea here is not to frustrate the reader with too many citations or details, but to present him/her an explanation of basic premises and problems of international law from a certain, legalistic point of view albeit sensitive to other fields of knowledge. Authors are always grateful to Gizem Akdogan Kokosis for minute detail reproductions of Figures 3 to 9. ‘Translations are made by authors unless otherwise mentioned.PREFACE.... LIST OF FIGURES. LIST OF ABBREVIATIONS I IL. Il. IL. . Rules of Order. a TABLE OF CONTENTS CHAPTER I LAW IN SOCIETY The Concept of Order Definition of Law IIa. Different Types of Law... TILb.System of Law, or Legal System CHAPTER II CONCEPT OF INTERNATIONAL LAW Problems of Definition... oer Place of Internatlonal Law within the Legal System lO Relations with other Branches of Law and Humanities CHAPTER IIT SOURCES OF INTERNATIONAL LAW Primary Sources. La. Written Source: Lb. Unwritten Sources. Secondary Sources.Iv] i IL. L TL. Tl. Observance of Treaties ............ IV. Invalidity, Termination or Suspension IL. IIL. Sui Generis Subjects (Entities) IV. Individuals: Overview of Human Rights Law IL. . Codification. CHAPTER IV CUSTOMARY INTERNATIONAL LAW Definition La. Elements .. Lb. Classification. CHAPTER V CONVENTIONAL LAW: LAW OF TREATIES Definition ..... Ta. Negotiation .. Lb. Conclusion .. Lc. Ratification and Entry into force. Classification........ CHAPTER VI SUBJECTS OF INTERNATIONAL LAW States 0... ea International Organizations .... CHAPTER VII STATES Constituting Elements...... la. Territory Lb. Population Ic. Government .......... Territory, and State Boundaries. Ila. Natural Boundaries...IL.a.1. Mountains......... ILa4 Territorial Waters ILb. Artificial Boundarie: ILb.1. Geodetic Boundarie: IL.b.2. Geometric Boundaries Ill. Boundaries of Turkey... CHAPTER VIII NATIONAL AND INTERNATIONAL WATERS, AND AIRSPACE I. Law of the Sea la Internal Waters and Territorial Waters . La.1. Internal Waters, Baselines, Historic Waters, Archipelagic Waters..... La.2. Territorial Waters Lb. Contiguous Zone... Ic. Exclusive Economic Zone. Id. Continental Shelf....... Le. High Seas......... Lf. International Waterway: Lg. Outline of UN Convention on the Law of the Sea and Turkish Practice IL. Airspace... CHAPTER IX RELATIONS BETWEEN THE SUBJECTS OF INTERNATIONAL LAW I. Diplomatic and Consular Relations Ia. Diplomatic agents....... La.1. Functions .....|vuty Ib. Consuls Il. Settlement of Disputes and Use of Force ILa. Peaceful Settlement of Disputes... ILb.Use of Force between State: PREFACE. l.a.2. Ranks and Classes... La.3. Privileges . Lb.1. Function: I.b.2. Ranks and Classes.. Ib.3. Privileges....... Il.a.1.Non-adjudicatory Procedures IL.a.2.Adjudicatory ProceduresLIST OF FIGURES FIGURE 1..... FIGURE 2 FIGURE 3 FIGURE 4 FIGURE 5 FIGURE 6 FIGURE 7 FIGURE 8 FIGURE 9LIST OF ABBREVIATIONS* CUP Cambridge University Press eg. exempli gratia esp. especially etal. etalii ECHR European Court of Human Rights EEZ exclusive economic zone ETS European Treaty Series EU European Union FAO Food and Agricultural Organization ie. idest Ig International Court of Justice ICAO International Civil Aviation Organization ICRC International Committee of the Red Cross ILO International Labour Organization IMF International Monetary Fund ITLOS International Tribunal for the Law of the Sea LoN League of Nations NATO North Atlantic Treaty Organization NGO non-governmental organization. NY New York OUP Oxford University Press para. paragraph * Shortlist of cases and their abbreviations, if any, are shown and included separately in the Short Bibliography. All references to electronic sources are valid and checked as of 01.02.2018.[xa] PCA Permanent Court of Arbitration Pcy Permanent Court of International Justice UN United Nations UN. Doc. UN Document” UNCLOS UN Convention on Law of the Sea UNESCO UN Educational, Scientific and Cultural Organization UNILC UN International Law Commission UNTS United Nations Treaty Series UK, UK. United Kingdom of Great Britain and Northern Ireland US, U.S. United States of America USSR Union of Soviet Socialist Republics Vol. Volume * To check availability of any UN document, please consult . For LoN documents, special indication of "LON" is used before the relevant call number.CHAPTER I LAW IN SOCIETY Law is closely bound up with society. We can start with a well-known Latin proverb, "bi societas, ibi ius", loosely translated as "wherever there is a society, there is law". Therefore, what is law? I. THE CONCEPT OF ORDER There are many ways to conceive what law is or what it ought to be. The overwhelming scholarly opinion on what law is depends upon certain understanding of the concept of order. Since the concept of order is about living together without anarchy, removing anarchy in society depends upon and requires rules as per which human, or social conduct shall be regulated. In other words, orderly social life requires rules under which such public order may be attained. First and foremost instances of such rules are legal rules. II. RULES OF ORDER Ina society, there may also be two other types of rules taking part in securing the public order, namely religious rules and moral rules. These sets of rules are other than legal rules, and their role in securing the order varies according to social structure of society in question, the degree of public order of the society involved. It is in this vein that early continental sociologists would like to differentiate between society and community. Therefore, the degree of public order varies according to the degree of existencel2I of religious, moral and legal rules. The minimum degree of living together is secured by legal rules. Therefore law is the minimum condition of living together in a society. Il. DEFINITION OF LAW Law is the body of extrinsically sanctioned rules of order. Law is the sine qua non condition of living together in a community. Function of law is to prevent anarchy. It is the minimum level of public order. In other words, law is the body of sanctioned rules of conduct and behavior realizing the order of living together. If law is bound up with society, then one should ask: what is society? In short, society is the minimum condition of living together without anarchy, or put in other words, in order and under legal rules. Illa. Different Types of Law "Law" has different meanings and different connotations. In Turkish vocabulary, law means totality of laws and customs. In old Turkish, Roman or even English or the US law, this equals more or less the "lex terrae", or “law of the land" in its original usage. Nevertheless, in its other sense, law means the science of acts or statutes. By this, for instance, it is implied that by attending a law school and graduating therefrom one would acquire a law degree. In another sense, however, law means the laws (acts, statutes, customs) in force. As such, for instance by “international law", one may connote the international legal rules in force. Furthermore, law also means acts and statutes on a given or specific subject, e.g. commercial law, intellectual property law and civil law.131 Peculiar to Turkish language, law means friendship, acquaintance as well. In Turkish, law also means acts and statutes not pertaining to criminal matters. Still, in its another meaning, law means rights, i.e. plural form of right. However, law in the above mentioned senses do not, cannot or should not reflect the meaning ascribed to it in scholarship. For the latter, three questions are dealt with in any inquiry on law: what law is, what is the binding source of it, and how it works. In light of the above mentioned and taken scholarly, law may be conceived in double, or multiple terms. 1.Positive law: As such, the law which is, the law which exists, the law which is imposed is called positive law. In this sense, what makes law positive are that (i) it is formally laid down, enacted or imposed; and (ii) it is prescribed, or given. Positive law may be known a posteriori, or empirically. By a posteriori, it is implied that such knowledge of law is acquired by observation of facts. And, by empirical, it is implied that acquisition of such knowledge is based on observation or experience. Positive law may also be termed as legal dogmatics in its original sense. 2.Natural law/Ideal law: When one evaluates or criticizes positive law, one refers to the law which ought to be, then one leaves the field of positive law and enters the field of natural law or ideal law. Natural law is the idea of law, a perfect law which does not, or shall not change according to place and time. It finds its place in nature, or nature of things, and may be known a priori. In this sense, natural law is the best, objective and absolute: nothing could be better.lal Ideal law, however, is a personal idea of law. Within the confines of positive law, it is directed towards reform rather than rupture or repetition thereof. It changes according to person, individual, or subject, therefore it is subjective. It is conditioned by personal mental characteristics, peculiar to a single individual. IILb. System of Law, or Legal System Science of law is generally termed as jurisprudence. Jurisprudence is, in turn, linguistically and etymologically comprised of two Latin words: iuris and prudentia, roughly to be translated as law and acquaintance, knowledge, wisdom. In a more general sense, however, jurisprudence means a system or body of law. Moreover, it connotes the course of court decisions, common in Anglo-American usage. It also means a department, or branch of law, e.g. criminal jurisprudence. Taken together, these words qualify law, "ius" proper. For instance, the then classical term for international law or law of nations, though its proper meaning differs, is ivs gentium. One is called jurist when one has a thorough knowledge of law, as well. Although jurisprudence includes prudentia, it shall not imply an ordinary, incidental acquaintance, knowledge or wisdom. It is rather science, "scientia" in Latin. As such, it refers to two distinct but interrelated concepts of science proper. In its first sense, it means systematized knowledge as an object of study, e.g. science of theology. In other words, it is something that may be studied or learned as systematized knowledge. In its second sense, however, it means knowledge concerned with the physical world and its cognizable phenomena. Please note that the last word in plural is, in its original and singular form,Is] phenomenon or phenomenos (pacvopevov; patvopévesc), meaning inter alia "the thing as it seems’, "...appears to us". In this sense, this body of knowledge is concerned with and it is itself based on collection of data through observation and experiment, and the formulation and testing of hypotheses thereon. That may be the reason why scientia is believed to descend from Latin verb, "scire", translated roughly as "to know", or its present participle "sciens", as "having knowledge". Taking the above into consideration, one may notice the critical role played by "system". As for the other terms stated above, there exists plurality of meanings assigned to the word. In general, it means a regularly interacting or interdependent group . of items forming a unified whole. In classical Greek, one of the meanings of sistima (abot La) is "whole compounded of several parts or members", e.g. the composite whole of soul and body. Please note that, in this connection, soma (o@a) or corpus is also totality of laws and regulations. Moreover, system also signifies an organized set of doctrines, ideas or principles usually intended to explain the arrangement or working of a whole. In another sense, it is either an organized or established procedure, or a manner of classification, symbolizing, or schematizing. Or, in its most general sense, "system" connotes a harmonious arrangement of a given field, or object of study. In these senses, system of law or legal system in general may be monistic, dualistic or pluralistic. In monism, a viewpoint or theory is adopted whereby all legal phenomena are reduced to a single, unifying principle. Nevertheless, in dualism, it is the quality or state of being dual, or having dual nature, distinct from one another. Still, in pluralism, the latest is valid in its plurality. Please16] note that one of these approaches may be adopted but this would have consequences on our understanding of law in general, international law in particular. In the next Chapter and the following, it is purported to demonstrate how these biases, words and ideas shape our understanding of the concept of international law, consciously or unconsciously.CHAPTER II CONCEPT OF INTERNATIONAL LAW Systematization of law in general requires division of the subfields thereof since any inquiry on positive law would demonstrate that legal rules are. not of a single character but possess a plurality of qualities and nature. If we are to conceive the concept of international law, and to attain a workable definition thereof we may start by briefing such divisions. In this sense, the first and foremost division is that of between national and international law. By national, municipal, internal or domestic law, what is meant is the totality of legal rules in force within the boundaries of a state, and sometimes following her subjects abroad, i.e. outside such boundaries. Since there are more than one or two states on the globe, there exist also a sphere of legal rules governing the dealings and intercourse between, i. relations of states. It is in this vein that international law, or law of nations is classically or commonly defined since the Middle Ages as "rules governing inter-state relations". Here, “inter-state' means "between states" as used in the US, e.g. inter-state commerce. I. PROBLEMS OF DEFINITION In classical and modern conceptions, international law may be defined as per either its subjects or objects. In the first, the focus is on subjects that are deemed to have rights and obligations, which law recognizes. In the second, however, the attention is given to the object in law, which may be (i) something18] toward which an action is directed, (ii) the end of an effort or activity, or (iii) something denoting the result of the action. From another perspective, albeit complementing the former, one may focus on the conceptual ground on which international law is structured, In this vein, one should note that in on the one hand, international law may be founded on abstract reasoning, or, on the other, one may construct international law on what positive international law consists of. In sum, basic and working definition would be that international law is "the law governing relations between nations; rules and principles that govern questions of right between nations". Below is a brief inquiry into these two perspectives in order to attain or demonstrate the complexity of such attempt at a definition. 1.In its classical understanding, international law, or law of nations deals with legal rules applied to relations between sovereign, nation states. Since qualification of a legal entity as a state requires such entity to have territory, population and government having the capacity to engage in foreign relations as a vital attribute of sovereignty, a distinction is necessary to be made between given moments in the history of international law. As mentioned above, therefore, ius gentium as Romans called it may be conceived as international law if only it is understood as ius voluntarium in between nations organized as distinct polities, ius inter gentes. On the Continent, the terms adopted in German and French traditions reflect more or less a nuanced version of the above mentioned approach, "Vélkerrecht" and "droit des gens", respectively. Though, it should be noted that it would be naive to translate these + For the above quotation and two perspectives mentioned before, see Steven H. GIFIS, Law Dictionary, Fifth edition, NY, Barron's, 2003, p. 265.I9| two literally as “public international law" since they also included private international law or, better put, conflict of laws in origin and up until the end of World War I. It is in this sense that public international law differs from. that of international law, or law of nations in its original sense”, and from that of ius gentium from another perspective. 2Although differences are less than similarities, what makes different public international law from its predecessors is, in this first sense is the inclusion, and recognition of international organizations. Especially since the advent of such organizations in between states, and the establishment of the then League of Nations (LoN) after : the World War I, international organizations are deemed as subjects of international law. Therefore, it is common in scholarly works from inter-war period and after the United Nations (UN) to define international law as the law that deals with the conduct of states and of international organizations and with their relations among themselves (e.g. international institutional law), as well as with some of their relations with persons (e.g. human rights law), whether real or legal?. In practice, especially in some cases, above considerations might play a decisive role. For instance, in a case involving appeal from the judgment of US District Court for the Southern District of Florida, related to denial of the original and amended petitions for habeas corpus filed by the appellant on an international extradition, and act of state doctrine, US Court of Appeals stated that even though the appellant would be deemed acting in name and on behalf of 2 Onthis distinction, see eg. Hilton v. Guyot, 159 U.S. 113, 163 (1895). 3 Thomas BUERGENTHAL, Harold G, MAIER, Public International Law in a Nutshell, 2nd edition, Eagan, West, 1990, p. 2.[20] Venezuela, this would not hamper the extradition proceeding since the Treaty of extradition between US and Venezuela was concluded for "..the tribunals to act when the accused is a public officer charged with crimes enumerated in the Treaty. The acts constituting crimes charged for which the extradition of appellant is sought are not “acts of Venezuela"..., and the Act of State Doctrine is no bar to this extradition proceeding or justification for... discharge from custody of appellant". Today, it is possible to observe currents aiming to replace above mentioned understandings with other conceptions, e.g. universal law, rules of global governance, global constitutional law and so on. Nevertheless, it is highly questionable to identify these as international law proper in neither its classical nor modern sense. IL. PLACE OF INTERNATIONAL LAW WITHIN THE LEGAL SYSTEM Much of how we think about public international law owe to the inter-war scholarly works. If this statement is true, it is much more relevant for any inquiry on the place of international law within the legal system. Since, most notably, the relation of international law to national law, and international and domestic application of law are two fundamental problems to which attempts at solution requires us to refer to their work. In this Jimenez v. Aristeguieta, 311 F.2d 547, 558 (Sth Cir.1962).jaa] sense, we may ask: are national, municipal, internal, or domestic law and international law parts of the same legal system? To the above question, advocates of the monistic theory replies more or less as follows: international law and national law are parts of the same legal system, components of a unity. Therefore, one may question which one of them should take precedence in relation to the other. In this vein, some argues that national law supersedes international law; to others it is international law that is superior in terms of legal effectiveness. Nevertheless, opponents of monistic theory purport that international law and municipal law are two distinct legal systems. Hence, from a dualistic or pluralistic perspective one may, or should inquire into its application qua law. In this sense, international law can be applied only after it has been incorporated into a domestic legal system. Please note that approaches to domestic and international law shall not prejudice application of international law in domestic sphere. To some scholars, this leads to the following: "The fact that international law, for the most part, governs inter-state relations does not mean that it is irrelevant on the domestic legal plane or that it is not applied there”. However, to others, the case is reverse in order to render international law applicable as part of municipal law: "What we term international law, based in international agreements or customary law, has recognizably been part of the law of the United 5 BUERGENTHAL/MAIER, p. 3.[22] States since the formation of the Constitution of the United States. Indeed, the text of the Constitution makes this relationship explicit with respect to treaties and, although too little known today, there are also textual bases for the incorporation of customary international laws as 'Laws' and ‘Laws of the United States’ (with or without congressional involvement)". Furthermore, in practice of the European Court of Human Rights (ECHR), the Court consistently refers to questions of international law to govern the applicable law. In Fogart Case, for the Court, European Convention on Human Rights, as an international agreement, mentioned approaches or generally a blend thereof, and indeterminate in its character. For instance, Turkish Constitutional Law of 1924 (as modified by Law no. 1222 of 14 April 1928 provides in its Art. 28 that "the Grand National Assembly itself performs the § Jordan J. PAUST, International Law as Law of the United States, Second edition, Durham, Carolina "..cannot be interpreted in a vacuum. The Court must be mindful of... Convention's special character as a human rights treaty, and it must also take... relevant rules of international law into account... The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part..."”. The states’ practice reflects, one way or another, the above ‘Academic Press, 2003, p. vi 7 Fogarty v. U.K., 2001-XI ECHR 157, 166-167,[331 duty of concluding treaties and conventions with foreign states, as well as declaration of war or making peace". In this, it is almost impossible to deduce supremacy or primacy of international law, however, the preference for dualist theory may be deduced. In Constitutions of 1961 and 1982, primacy of international law is implied if not overtly expressed in Articles 65 and 90, respectively. Amended Art. 90 ensures that in case of a conflict between treaties on fundamental rights and freedoms and national laws, then the rules of such treaty shall prevail whereby it is also prohibited to claim unconstitutionality of a treaty before the Turkish Constitutional Court. As a concrete example, one may compare Art. 11 of 1982 Constitution with the Art. 6/2 of the US Constitution, the so-called “supremacy clause". Under Art. 6/2, "...Constitution, and the Laws of the US which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the authority of the US, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding”. Turkish Constitution and the US Constitution lay down similar provisions concerning supremacy of the constitution. In order to ensure such supremacy; Turkish Constitution provides the judicial control of legislative acts before the Constitutional Court pursuant to Art. 148, albeit there exists no legal rule ensuring such judicial control. When one takes Art. 15, 16, 42, 90, 92 and other references to international law into account, oneIa4| cannot deduce priority or supremacy of international law easily and without doubt. US doctrine is ambiguous in this aspect as well, and historically conditioned, e.g. from the so-called "fact" doctrine to “take judicial notice of the fact" doctrine’. These, in their own right, may be the reason why US doctrine has referred to law of nations as "foreign relations law of the US". The ambiguity we referred arises out of the fact that in US context, (i) on the one hand, US judicial practice seems to favor international law by internalizing or incorporating the latter into the former, and (ii) on the other, the former seems to undermine the latter by equating the latter's legal force and effect on condition that the former recognizes the latter as such. In both, however, the authority of federal government is ensured’. Therefore, in US, it is generally held that (a) individual states forming US may not enter into treaty relations with foreign states, though (f) treaties of US would be binding thereupon as laws of the US, and (y) international law is part of US law, as mentioned above. To put simple, for the US Supreme Court, international law is "a part of our law and as such is the law of all States of the Union". On the Continent, in turn, some states (e.g. France) are inclined towards monistic theory, still, others towards dualistic theory (e.g. Germany). In case of conflict between municipal law and the EU law, however, the latter takes precedence for EU member states. Please ® On these, see e.g. Peter v. Mckay et al, 195 Or. 412, 454-455 (1951) 2 US. v. Belmont, 301 U.S. 324, 327 (1937) {when US Government enters into an International agreement, “no state-pokcy-can-peevli against it) © Skiriotes v. Florida, 313 U.S. 69, 72-73 (1941), with direct reference to Paquete Habana, 175 U.S. 677, 700 (1900),135] note that for Anglo-Americans, these are based on “abstract reasoning". In the US perception, for instance, international law is generally considered as part of federal, common law, or supreme law of the land, as mentioned above". Ill. RELATIONS WITH OTHER BRANCHES OF LAW AND HUMANITIES Other branches of law: As part of legal system as a whole, international law is interrelated to other branches of law. Such interrelation, as already mentioned in various contexts, may easily be seen in the case of private international law. Private international law today covers subfields such as nationality or law applicable to aliens. Conflict of laws, the main part of private international law, is considered mainly a domestic, or national issue for each state. In case of nationality and law applicable to aliens such domestic character is much more visible. Each state decides in its own right to confer nationality and regulate the issues related thereto. However, in order to attain harmony of laws between states or to prevent undesirable consequences for individuals (¢.g. stateless persons), states opt for international treaties or conventions. In other words, part of private international law depends on codification in international law. In national, domestic, municipal, or internal law, international law is strongly connected to branches thereof as well. An important part of such connection is about the place of international law in the legal system, as mentioned above. Apart from that, subfields or branches of public or private law are related to international law though this may be contested thereby in many cases. We should 2 On these perspectives, see John MARAFINO (editor), Blonds International Law, Second printing, NY, Suleburger & Graham,1993 (BLOND'S), pp. 59-60.[26 | note here that throughout the text, we adopt the term civil law as used in continental doctrine, to connote private law in general or a particular field thereof. Humanities: Being a sub-discipline of law, international law may also be conceived pertaining to the humanities, since humanities or social sciences in general are closely linked to any understanding of law, and vice-versa. a. Political Science: For instance, field of international relations, or politics as a social science, is concerned chiefly with the description and analysis of political and especially governmental institutions. In this sense, while jurisprudence focuses on legal rules, mostly pertaining to such institutions, political science focuses on the same phenomena with a different vocabulary and set of problems to solve”, As such, it would be more than naive to set forth an approach to international law from the perspective of international relations. Interconnectedly, this statement is also relevant for ethics in international relations. Ethics in this sense deal with what is good and what is bad, and with moral duties and obligations in international relations. Consequently, from the perspective of an international relations specialist on ethics, any international issue may be conceived in terms of international morality, ie. based on value judgments. Politics may be conceived as an art or science of government, or concerned with guiding or influencing government policy. However, in the latter sense, politics is prudence or wisdom in the management of affairs. Or, to put it differently, it is a definite course or method of action selected from among alternatives and 12 In stark contrast, please note that in US perception, “foreign relations" is part of US domestic law involving “decisions and policy concerning international affairs", cf. GIFIS, p. 210.1271 in light of given conditions to guide and determine present and future decisions. In these senses, policy is a high-level overall plan embracing the general goals and an acceptable procedure to achieve such goals politically. Therefore a state, as a legal entity, has a policy of its own. One aspect of its policy is internal, and the other, external. The latter may also be called foreign policy. As such, foreign policy is based upon relations of a state with other states. Let us take examples from Turkish politics. Internally, main goal of governmental policy is subsistence, or maintaining or supporting itself at a minimum level, its existence. To achieve this goal, the means are directed towards provision of minimum requirements to support life, e.g. food, housing, energy, trade, communication. Correspondingly, each is tied to a policy of its own, e.g. food policy, housing policy, energy policy, trade policy, communication policy. Externally, foreign policy purports to maintain independence, and secondarily, safety and security against foreign threats or powers. A state may ensure these relying on its own, or put simply, with forming alliances, e.g. NATO. In this vein, the role of international law in foreign policy is to assure legitimacy thereof. Please note that legitimacy means herein as accordance thereof with law or established legal forms and requirements. b. History: History is a branch of knowledge that examines and explains past events indicating time (when?), place (where?) and reason (why?). In this sense, not only social sciences but also other fields of study are closely connected to an understanding of history, e.g. philosophy. Furthermore, international law has a history of its own as a field of study. As such, history of international law is a branch of history that examines and explains the birth or emergence of international legal rules and institutions, indicating time, place and reason (or cause). Along with political or128] diplomatic history, it is related with past events, and together, they help find solutions for actual international disputes under international law. c. Philosophy: Taken literally, as in classical Greek, philosophy stands for love for wisdom (puUocoia). As generally remarked, philos means “friend", sophia means wisdom or prudence. In this connection, philosopher is the one who seeks wisdom or enlightenment. In international law, one is not directly concerned with philosophy. For an international lawyer as for a lawyer in general, the main concern is on which is or which exists legally, ie. positive (international) law. However, when one concerns which ought to be, one leaves the field of law and enters the fields of natural or ideal (international) law. Please note that natural and ideal differ from each other, and both differ from but related to positive. For natural (international) law is eternal, ethically valuable, objective and absolute. But, ideal (international) law is temporal, personally precious, subjective and relative. The first addresses the natural legal idea and order; the second, however, perfection of a given, positive legal order. All in all, these distinctions are fundamental to grasp the role of law in society or in international community. d. Sociology: In brief, sociology is the science of society, social roles, institutions, mobility and relationships. As such, sociology is closely linked to law since law may be conceived sociologically as the scientific analysis of a social institution, a functioning whole and as it relates to the rest of society. Conceptually and practically sociology helps one understand the concept of (international) law in general. With regard to this, please note that in the field of sociology, community connotes a differentla9] meaning than society. Community, as.a unified body of individuals, a state, or a commonwealth, is a body of persons or nations having a common history or common social, economic or political interests. If one may think of an international community, then one may deduce that international law is the law of international community. e. Economics: All human activities for living purposes within the legal framework may also be conceived as economical activities. As such, states have economics of their own and they entail complex sets of relations and regulations worldwide. Therefore, along with political science, economics play a very important role in international law and relations. Overall, since international law and relations tend to be conceived more in economic terms rather than legal or political since the Cold War, it would not be an overstatement to conclude that economics or global business regulation has assumed more importance both in theory and in practice at least since 1989.CHAPTER III SOURCES OF INTERNATIONAL LAW Concept of law is directly related to legal sources. In Anglo- American doctrine, the main source of law is application thereof. While continental tradition focuses on codification and legislation, Anglo-American perception of law is based on stare decisis and judiciary. In this vein, to continental lawyers, Anglo-American approach conceives international law from a rather different perspective. For example, stare decisis, the doctrine of binding precedent in judicial settlement, is a doctrine or policy of following tules or principles laid down in previous judicial decisions unless they contravene the ordinary principle of justice in common law tradition. In this sense, we should note that in contrast to civil law, ie. continental tradition based on statutory laws and legislature, common. Jaw is the system of jurisprudence which is based on judicial precedents. For majority of the doctrine on international law, however, international law shall be conceived as interpreted and applied by international courts and tribunals on condition that the court itself is not bound with previous decisions. In other words, for the same, supremacy or primacy of international law is secured through construction of international courts and tribunals as loci of such supremacy or primacy. For instance, the International Court of Justice (ICJ or World Court) defines its task as sound administration of justice or "to administer justice", from which the Court deduces that since "...when applying positive international law, a court may choose among several possible[22] interpretations... the one which appears, in... light of... circumstances of the case, to be closest to... requirements of justice" as distinct from “a decision ex aequo et bono" whereby "legal concept of equity is a general principle directly applicable as law". In this sense, when parties to a dispute refer the same thereto, it is the Court itself to decide when and how to apply positive international law, or, deviate from the rules of positive international law in her own discretion. This, in turn, is probably adopted from common law tradition, at least historically, whereby common law pleadings were contrasted to equity pleadings. What are those legal rules and principles that embody the positive international law under which international legal disputes shall be settled by an international court or tribunal? Sources of international law purport to respond to this question. In other words, source of law is chiefly interested in how law is made, or what positive international law consists of. In a general sense, sources of law focus mainly on the process from which law emanates. As per this sense, some observations shall be made. As generally repeated in textbooks, there is no legislature in international law. Put differently, in terms of lawmaking, if conceived in dualistic or pluralistic terms, international law is generally constructed as a primitive legal system compared to national, municipal, internal or domestic legal systems, since in 2 Continental Shelf (Tunis/Libya), Judgment, 1982 C.J. Rep. 18, 71 (Feb. 24); see also North Sea Continental Shelf (Ger./Den.; Ger./Neth.), Judgment, 1969 I.C.J. Rep. 3, $185 (Feb. 20). Throughout the text, all emphasis belongs to the original author unless otherwise mentioned,123] international law there is no constitution that can be construed as a fundamental source of law, compared to national legal systems". For the reason that judiciary is in most cases optional and based on voluntary agreement of the parties to a dispute, decisions of international judiciary, e.g. ICJ, are legally binding only on the parties to a dispute (inter partes) and for that legal dispute, and have no precedential value in a formal sense since stare decisis is not a principle of international law, as mentioned above. How, then, do we know whether a given rule is part and parcel of positive international law? This question, just as the above mentioned one, can be answered only by reference to the sources of international law and by analyzing the manner by which international law is made as law and becomes legally binding on the international plane. As mentioned by the Court in another case, when parties dispute over applicable law, reliance of one party on a rule only invoked by her that is contested by the other is "to place oneself on the plane of international law", In general, sources of law in the above mentioned senses shall be further differentiated as material source(s) and formal sources. By the former, what is implied is the "real" source(s) of law, engendering what law is. Put differently, material sources of law are fontes originis. As such, they are beyond cognition and prescription in legal terms. In this aspect, material sources of law are either spontaneous or willful. In the former, legal rules are created spontaneously: they embody common law, unwritten law or in a sense, customary law. In the latter, legal rules emanate by the willful 14 BUERGENTHAL/MAIER, pp. 19, 20, 26. 35 Right of Passage over Indian Territory (Port. v. India), Judgment, 1960 I.C.J. Rep. 6, 33 (Apr. 12)[241 act of lawgiver, lawmaker, legislator: such legal rules are often called written law, statutory law, conventional law. In domestic sphere, they embody statutory law whereas in international sphere they embody customary and conventional law. Furthermore, in these senses, positive international legal rules form a complex set of relations in between themselves. As for the World Court, a Tule of international law, whether customary or conventional, does not operate in a vacuum; it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part". There exist theories which date back mostly from 17% to 19 centuries to explain the material source(s) of international law. In relation to this, two basic theoretical approaches may be separated. One attempts to demonstrate that positive international law is based upon concurrence of wills expressed on behalf of or by the members of international community, explicitly (e.g. conventional/treaty law) or implicitly (¢.g. customary law). The other purports to construct positive international law by stressing the validity of objective phenomena (e.g. rules, human relations) over subjective experience (e.g. will). While the first may be termed as subjectivist, the latter may be termed as objectivist. However, both approaches assume that positive law in itself is unable to explain its material source; therefore, both either deny or defer the fundamental question that they deal with. In contradistinction to above mentioned conceptualizations, the formal sources are sources which inform what positive international law is. As such, they form the totality of international 18 Interpretation of Agreement of 25 March 1951 Between WHO and Egypt, Advisory Opinion, 1980 I.CJ. Rep. 73, 110 (Dec. 20).1251 legal rules, corpus or soma of international legal order. It is in this sense that unlike material source(s) of international law, they are cognizable, i.e. fontes cognoscendi. Formal sources are comprised of primary and secondary sources. I. PRIMARY SOURCES Primary sources are main sources of international law. As such, they function as the core of corpus of international legal rules. On this, Art. 38 of Statute of ICJ read as follows: "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, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”. Therefore, applicable law by ICJ consists mainly of international conventions, custom and general principles of law.[26] In this sense and in any case the foundational instrument of ICJ instructs the same to ascertain such sources. Rather than “subsidiary means" or decision "ex aequo et bono", the Court shall apply conventions, custom or general principles of law. In other words, such are the primary formal sources of international law. However, as will be seen later, IC] generally and rightfully considers only the conventions and custom as primary sources, and treats them separately. For instance, these may overlap but such overlap shall not affect each source's validity and binding force in its own right. As the World Court stated, "even if a treaty norm and a customary norm... were to have exactly the same content, this would not be a reason... to take the view that... operation of the treaty process must necessarily deprive the customary norm of its separate applicability”. In other instances, the Court appears to assume that conventions form part and parcel of the corpus of positive international law, therefore based on “an a priori logical necessity, ie. through positive law processes", whereas rules of customary international law have "some basis other than that..." but still "...to be regarded" as such*, In overall terms, above mentioned Article differentiates between law and equity. For this purpose, Art. 38/2 authorizes the Court to apply equity under certain conditions as distinct from application of legal rules mentioned in para. 1. In this conception, equity shall be perceived as rules and principles that are designed 2 Military and Paramilitary Activities (Nicar. v. U.S.), Judgment, 1986 I,CJ. Rep. 14, 475 (June 27). 18 North Sea Continental Shelf, 460.127] to correct insufficiencies and rigidity of applicable law. In other words, equity (cf. ideal law above) complements, supplements or corrects positive international law. La. Written Sources When taken together in general, primary formal legal sources, national or international, are comprised of written and unwritten rules. In national context, especially private law includes written but also unwritten rules. Nevertheless unwritten rules have been significantly less prominent since the Enlightenment, especially French Revolution. In this vein, please note that unwritten rules of private law are, for instance, custom or common law in Anglo-American perception. In Turkish legal system, written sources of public and private law include first and foremost the constitution, codes and statutes (enacted laws), statutory decrees (decrees having the force of statute or law), regulations, by-laws and decrees. International treaties duly signed and ratified by Turkey also form part of Turkish corpus juris. Under 1982 Constitution Art. 90/5, such treaties shall have legal binding force as laws, however, their unconstitutionality may not be sought or they may not be brought before Turkish Constitutional Court. Apart from national, municipal or domestic sphere, or to put differently, in international context, written sources generally refer to conventional law or law of treaties whereby unwritten sources refer to international customary law. However, one should also note that customary rules of international law might also be[28] reflected in various international instruments, therefore, in writing. Both topics will be further examined in Chapters IV and V. Ib. Unwritten Sources As noted above, unwritten sources consist mainly of custom and common law. As such, these include rules and principles to be deduced from various legal materials. For instance, from classical (17" to 19% centuries) Common law, western legal tradition inherited the principle of "nemo iudex in causa sua" or "nemo debet esse iudex in propria sua causa", namely "nobody shall be judge in his own case". Therefore, relying partly on this principle, in an advisory opinion, for the Permanent Court of International Justice (PCI), well-known rule that no one can be judge in his own suit holds good". In case of any such rule or principle, however, under the reading of Art. 38/1, international customary law and general principles of law shall be carefully distinguished. A rule or a principle may be labeled as part and parcel of customary international law on condition that such rule or principle is created by the constant repetition of certain acts and behavior by states representing most of the totality of states whose interests are * Legal Consequences of Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 LC. Rep. 136, 489 (July 9) (Wall Opinion) (the Hague Regulations appended to 1907 Hague Convention IV form part of customary international law); see also Armed Activities on Territory af Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.CJ. Rep, 168, 9172 (Dec. 19}. For instance, in relation to freedom of the seas and visit and search foreign vessels in time of peace, see Virginius Incident in John Bassett MOORE, A Digest of International Law, Vol. Il, Washington, Government Printing Office, 1906, §309, pp, 895-803. Article 3, Paragraph 2, of Treaty of Lausanne: Frontier between Turk. and Iraq, Advisory Opinion, 1925 P.C.LJ. (ser. B) No, 12, p. 32 (Nov. 21) (Mosul Case).|29| affected by such act and behavior in and over a certain period of time (consuetudo), and by conviction that such act and behavior is in conformity with or obligatory under law (opinio iuris sive necessitatis). This interpretation is supported by both the wording of Art. 38/1 and practice of courts and tribunals, according to which such general principles shall not have their own standing as a justification. Issues pertaining to these and international customary law in general will be further examined below and in Chapter IV. II. SECONDARY SOURCES Following the brief explanation above, secondary sources ought to be distinguished from primary sources. As such, secondary sources function as to complement, supplement or correct any rule or principle as to be qualified as positive international legal rule. It is in this aspect that in the wording of the Statute (Art. 38/1/d), "judicial decisions and the teachings of the... publicists" axe explicitly mentioned as subsidiary, auxiliary or secondary sources of law. Whether written (e.g. this book) or unwritten (e.g. oral legal advice by a legal counsel), these attempt to clarify or to determine a positive international legal rule, i.e. treaty or custom as such. For "judicial decisions", Art. 59 of the Statute clearly sets forth that a judgment of ICJ "has no force except between the parties and in respect of that particular case". In other words, stare decisis is excluded in the practice of ICJ. The judgment(s) given in a particular case is only binding for that case and for those parties thereto. In this respect, a case before ICJ or any other international[30] court or tribunal may be identified as to jurisdiction”. Iurisdictio in this sense and from the perspective of such international court or tribunal, is the power to hear and determine a case. If parties to an international legal dispute refer such dispute to an international court or tribunal, the case shall be defined and limited, ad minimum, in time (ratione temporis), space (ratione loci), subject matter (ratione materiae) and for parties (ratione personae). Correspondingly, a judgment to be passed on such case shall be valid and binding only in terms of time, space, subject matter and for parties thereto. Therefore such judgment shall be a formal and primary legal source only within these conditions. Other than these aspects, such judgment may be considered as evidence to a particular rule of positive international law, ie. a treaty or a. custom as such. In this vein, for instance, overriding majority of scholars and judicial practice assume that any finding of the Court as to customary international legal rule in a given subject matter shall be deemed as evidence to a customary international legal rule in that aspect. Chapter IV shall be consulted for further information hereon. By "teachings of the publicists", the relevant part of Statute refers to the international legal doctrine. In contrast to various understandings before the adoption of the Statute of PCI] and consequently, of ICJ, the function of the doctrine is not to create law but to state what law is and how it shall be interpreted and applied. Let us take the example of so-called problem of hierarchy between the formal sources of international law. For the problem there is not.any positive international legal rule, however there For different uses of the term, see Bryan A. GARNER, A Dictionary of Modern Legal Usage, Second edition, Oxford, NY, OUP, 2001, p. 488.132] exist varying interpretations, only to illustrate how to interpret and apply positive legal rules in a given case. In one interpretation, Statute is silent on the question whether the three sources (treaty, custom, general principles of law) listed have the same value: Therefore although there is disagreement, in practice it would appear that an international court or tribunal would give precedence to a treaty provision binding on the parties over a conflicting rule of customary international law, provided the latter did not have the status of a peremptory norm of international law (jus cogens) which a treaty may not nullify. For the same reason, a tule of customary international law would precede a general principle of law. Thus, however vague, there is a parallel between legislation, common law and legal principles in domestic context, and treaty, international custom and legal principles on international plane. In particular cases, e.g. territorial disputes, judicial practice illustrates that the same give priority of treaty rules: over general law. To some authors, although there is no formal hierarchy in between the formal sources, there is an informal hierarchy between formal sources: on condition that such general law does not have the status of jus cogens, treaties generally prevail custom, and particular treaties over general treaties“. For more information on the topic, please refer to Chapter V below. The overriding majority of the doctrine regards "general principles of law as recognized by civilized nations" as a secondary source of international law. Since, along with above explanations, 23 BUERGENTHAL/MAIER, pp. 20-22. 2 Qn these last two points among others, see the illuminating study of UNILC, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of international Law, U.N. Doc. A/CN.4/L.682, 13 April 2006, pp. 67, 47.132] these principles are based on the understanding that where states have universally applied similar principles in municipal laws, their consent to be bound with the same in international context. As such, in one interpretation, general principles of law function as to fill substantiate gaps (lacunae) in international legal system (¢.g. estoppel or good faith). Some of those who share this opinion also conclude that general principles as such shall be used to fill the gaps primarily for procedural matters and problems of international judicial administration. In this context, principles generally cited are e.g. habeas corpus (right to appear before a court), abuse of right, forfeiture, interest for default, nemo dat quod habet (nobody gives what he doesn’t have), res iudicata?®, However, for others, their function is to correct or guide the application of treaty or custom in a given case whereby such application would constitute injustice. It is in these senses that on the one hand positive, ideal and natural (international) law differ taking these distinctions into consideration, as mentioned above, and on the other, distinction between law and equity shall be made. As to judicial decisions, there exist both national and international forums. With regard to national judicial decisions, for instance in the US practice, it is generally held that a decision of the US Federal Supreme Court interpreting international law is only conclusive in the US, despite a contrary opinion even of ICJ; but in Belgium for example, the US decision will most certainly be less authoritative than a decision of an international arbitral /, "the thing has been decided, a matter has been adjudged. Ina more general sense, "(dJoctrine by which ‘a final judgment by a court of competent jurisdiction is conclusive upon the parties in any subsequent Iitigation involving the same cause of action... The policy underlying the doctrine... is one of repose, the same policy which Is reflected in the statute of limitations which outlaws stale claims’ *, cf. GIFIS, p. 443, but see also BUERGENTHAL/MAIER, p. 27.1331 tribunal, In some instances, contradictory judicial decisions may lead to frustration of international legality”. However such cases shall not imply that international forums are courts of judicial review or function as appellate bodies. For instance, when a national criminal jurisdiction is involved in a dispute, such involvement would not, in words of ICJ, "convert this Court into a court of appeal of national criminal proceedings". In another aspect, other than ICJ and its predecessor PCIJ, there exists plurality of courts and tribunals as well. Historically the oldest instance is arbitration between states, and after its foundation in 1899, under PCA”, In the context of human rights, ECHR and Inter-American Court of Human Rights hear cases of alleged human rights breaches of relevant states in each continent respectfully. In the EU, Court of Justice of the EU hears cases on EU law in order to review the legality of the acts of EU Commission and Council of Ministers, and try cases involving disputes between member states. Among these and others, ICJ is the most authoritative on international plane. As to teachings of the publicists, Statute refers not only to individual publicists or authors, but also to formal or informal entities and bodies. Today, the most renowned body as such is UN International Law Commission (UNILC), resembling the earlier Committee of Experts for the Progressive Codification of International Law established under LoN Council. UNILC was established by the UN to encourage "the progressive development of international law 26 On this, see BUERGENTHAL/MAIER, p. 2°. 2 For such examples, see e.g. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Bel.), Judgment, 2002 CJ. Rep. 3 (Feb. 14); LaGrand (Ger. v. U.S,), Judgment, 2001 |.CJ. Rep. 466 (lune 27). ® LaGrand, 952. 23 wards under PCA are collected in the series, titled "Reports of International Arbitral Awards" published by the UN Office for Legal Affairs under the Secretary General. Judicial decisions pertaining to the UN Organization may also be found in "UN Juridical Yearbook" published by the same.134] and its codification" under General Assembly (Charter, Art. 13/1/a). As such, UNILC is composed of distinguished international lawyers representing all regions of the world, and under its mandate, in order to study and make recommendations to General Assembly. Prime examples of such work are Geneva Conventions on law of the sea®® (1958) or Vienna Convention on Law of Treaties (1969). For instance, a resolution adopted by Participating states in 1958 Geneva Conference, in the following terms, praised the work of UNILC “for the excellent work in the matter of codification and development of international law, in the form of various drafts and commentaries of great juridical value">!, In more legally concrete terms, ICJ assessed UNILC's work as evidence to state practice. For instance, when parties debated a rule on state immunity before the Court, ICJ referred to the conclusion reached by UNILC as follows: "That conclusion was based upon an extensive survey of State practice and, in the opinion of the Court, is confirmed by the record of national legislation, judicial _decisions, assertions of a right to immunity and the % Throughout the doctrine, regarding the conference in which these are adopted, the same are also ‘referred to as UNCLOS | Conventions, to be distinguished from both UNCLOS lI, law of the sea conference held in 1960 without adopting any convention, and UNCLOS ill, culminated in UNCLOS in 1982. For a specific example, see Chapter Vill sections Lc, lg below. 450 UNTS 58, 64 (1963).1351 comments of States on what became the United Nations Convention". Therefore, in other words, ICJ refers to UNILC's work as evidence to state practice that in part may form a customary rule of international law. As evidence to state practice and more generally to international custom, Commission's work may focus on and evince such for IC]. It is in this aspect that although takes part in codification and working under General Assembly for that purpose, UNILC is an auxiliary source, and not a primary source itself. UNILC is not the only body to be perceived within the Art. 38/1/d of the Statute. In this vein, "Institut de Droit International" (International Law Institute) has contributed significantly to modern international law since its foundation in 1873, especially by publication of "Annuaire". International Law Association, American Law Institute and the Hague Academy of International Law are scholarly bodies in relation to evidence and development of international law as well. The Hague Academy is instrumental also in teaching and wider dissemination of international law since it annually holds and publishes lectures of renowned scholars from around the world under the title, "Recueil des Cours". Furthermore, as would be noted by cautious readers, throughout this book we refer to "Restatement of Foreign Relations Law of the U.S.", which is adopted by American Law Institute for the purpose of informing US judges and lawyers about general principles of common law regarding international law. = Jurisdictional Immunities of State (Ger. v. It, Greece intervening), Judgment, 2012 LC. Rep. 99, 9156 (Feb. 3), The mentioned treaty is the Convention on Jurisdictional Immunities of States and Their Property, adopted on 2 December 2004 but nat yet in force.[36] Overall, Statute (Art. 38/1/d) lists judicial decisions and views of duly qualified publicists as “subsidiary means" for the determination of rules of international law®, In other words, this provision is generally understood to mean that the existence of a tule of international law may be proved by reference to the above mentioned subsidiary, auxiliary, secondary means*. As such, they are cited by international courts and tribunals as authoritative evidence that a given proposition is or is not part and parcel of positive international law. 3 On this, see BLOND'S, p. 35. # BUERGENTHAL/MAIER, p. 28.CHAPTER IV CUSTOMARY INTERNATIONAL LAW I. DEFINITION Classic definition of the customary international law may be deduced from Art. 38/1/b of the Statute of ICJ: "a general practice accepted as law". In other words, a general practice observed by states shall form international custom when accepted by the same as law. Third Restatement §102(2) (1987) provides a more meaningful and functionally sounder definition: “Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. Therefore, a rule or principle, reflected in the practice or conduct of states, ought to be accepted by them, expressly or tacitly, as being legally binding on the international plane in order to be considered a tule of international law", In other words, customary international law consists of legal rules which are created by the constant repetition of certain acts and behavior. It is mainly a constant and uniform usage in international relations between states. 3 On this and the excerpt from Third Restatement, see BUERGENTHAL/MAIER, p. 22.138] La. Elements Actually, there exist 3 (three) elements of customary international law. Though it might be asserted that 2 (two) are essential, all elements are required to stand in order for a rule of customary international law to exist. Elements of customary international law are repetition, opinio iuris sive necessitatis, and sanction. Main elements for any rule of customary international law are the first two. However, the latest element may supplement them in some cases. Consuetudo-Repetition: It is also called "material element" of the customary law. Hence, a single act, a single precedent is not sufficient. In order for a customary rule of international law to emerge there shall be state practice, and such state practice shall be repeated. In this context, although scholarly opinions to the contrary, we are of the opinion that instant custom in international Jaw may not be upheld. Furthermore, there shall be a certain degree of repetition of the same act. In other words, state practice shall be consistently repeated, uniformly adopted and generally followed. For instance, when World Court (in 1951) was required to deal with whether a general (customary) rule of international law existed as to the length of the closing line of indentation for the definition of bays in international law, it opined that such rule shall be established on the ground that it is formed upon certain consuetudo. In the words of the Court, ",.although... ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have139] applied it as between these States, other States have adopted a different limit. Consequently, the then ten-mile rule has not acquired the authority of a general rule of international law". Opinio iuris sive necessitatis: Opinion on legality means that on the time of the repetition of the same act, there must be an opinion in the minds of the people conducting the same that such repetition created a legal rule, or at least it is convicted to be in conformity with an existing rule. In other words, for the latter, such conduct itself deemed not to lay down the rule on its own but as a performance in accordance with the rule. This is why this element may also be called "psychological element" of the customary law as opposed to material element. It is called psychological since it is based on opinion or belief. In other words, the parties involved shall believe that a certain degree of repetition, a constant and uniform usage forms a legal rule, a rule of customary international law. In connection with the material element, we should also note that the World Court generally refers to several resolutions of the UN General Assembly and treaties as reflecting customary international law”. Sanction: This third element is not a sine qua non condition of customary law. There are certain customary legal rules which are not sanctioned. Some remarks on sanctions are worth making in 35 Fisheries (U.K. v. Nor. Judgment, 1951 |.CJ. Rep. 116, 131 (Dec. 18) (Fisheries Case). 37 Armed Activities on Territory of Congo, 9162 (rules as to refrain from activities from her own territory towards another state involving a threat or use of force or towards violent overthrow of the regime of another state or interference in civil strife provided by General Assembly's relevant Resolution 2625 in 11970, reflect customary international law) and Kasikulu/Sedudu Island (Bots,/Namib), Judgment, 1999 ILC. Rep. 1045, 118, 48 (Dec. 13) (rules of treaty interpretation enshrined in 1969 Vienna Convention reflect customary international law).[40] order to shed light on this. For instance, under customary international law, retaliation is a kind of sanction. The other type of sanction is reprisal, not to be confused with retorsion. What we mean by these concepts? In retaliation, you respond with the same type of action. In reprisal, you respond with a harmful action of the same degree to an illegal action. For instance, on condition that any contrary rule of international law do not exist, if a state increases customs fees for imports from another state in its own initiative, the other state may also retaliate by increasing such fees for that state with the same amount of fees. However, before the adoption of the ban on use of force, it may be asserted that bombardment in land warfare as a reaction to a previous infringement is a kind of reprisal. Customary law in Turkey: There exist only a few customary law rules in Turkey, and such rules are deemed valid and binding in areas of private and civil law, as mentioned earlier. In cases of ortakcilik or yaricilik, on condition that there is no special contract to the contrary, local customary rules shall apply in law of obligations. Furthermore, there are some customary rules to be applied specifically to contractual relations of merchants. As to the civil law itself, the scope of application of the customary law is formulated in Art. 1 of the Turkish Civil Code. This Article read roughly as follows: The law shall be applied in all cases which are covered by the letter or the spirit of any of its provisions. Under this provision, the law orders that the judge shall not only apply the law as it is written but also look for its spirit and meaning. Where no provision is applicable, the judge shall decide as per the existing customary law, and in default thereof, as per the rules which he would lay down if he would be lawgiver. Under this provision, the law gives|4a] the judge an opportunity to create a legal rule. However, in such case the judge shall be guided by the generally accepted legal doctrine and case law. Under Turkish law, these two latter sources are auxiliary, and this Article, identical to the one in Swiss Civil Code, is partly inspired by the common law tradition. In sum, Turkish Civil Code provides a special provision concerning customary law and its application in Turkey. The provision included in Art. 1 thereof purports to apply to all civil suits. In public law, the most notable instance is in criminal law. Under Turkish penal law, crime and punishment may only be introduced by law. In other words, they cannot be established by customary law. The legal principle therefor is nullum crimen nulla poena sine lege. This is the fundamental principle of modern criminal law. This principle is enshrined in Art. 38 of Turkish Constitution as one of the "principles regarding offenses and penalties". Under Art. 38, no one shall be punished for any act that did not constitute a criminal offense as per the law in force at the time it was committed, and no one shall be given a heavier penalty for an offense than the penalty applicable at the time when such offense was committed. Lb. Classification As mentioned earlier, customary law in general includes either national or domestic customary law, or customary international law. From another perspective, however, customary international law consists of general, regional or local customary rules of international character. Below, we will focus on the latter perspective. (i) Rules of general customary international law satisfy the definition under Art. 38 and apply to every state unless such state[42] persistently objects to such rule since its first application or demonstration. In order for a rule included in a multilateral treaty to bind non-party states, state practice must be extensive and virtually uniform, and must demonstrate a general recognition that a legal obligation is involved, e.g. the above remark of the World Court in Fisheries Case. (ii) However, rules of regional customary international law are limited in their scope by the region in which interests of states are affected thereby. In case of a regional customary rule, a state claiming such rule shall prove that (a) the custom is the subject of continuous and uniform practice by the states in question, and that (8) the state against whom the custom is being enforced has not repudiated the custom through non-adherence to it. (iii) In contrast to the former two, rules of local customary international law shall only apply between two states. Hence, such body of rules may also be called bilateral customary law. A local customary rule may be established as the result of a constant and continual practice by a state if, over a substantial period of its existence, it has not been formally opposed by other affected states®, In general, whatever type of customary international law is in question, it is necessary to bear in mind that there is no legislative in international law and most of the rules of international law are deduced from state practice to which such tules shall apply. Therefore, the fundamental problem in sources doctrine demonstrates itself clearly in customary international law. In bilateral custom, for instance, one may also deduce that 38 On these, see BLOND'S, pp. 50-57.1431 such custom is based upon tacit agreement between the same. As a corollary, "the fact that a custom has been established between two or three states does not mean that it is presumed applicable to other states in the region". However, to the same authors, rules of customary international law bind “all states who have not opposed it, even if they played no part in, or did not exist at the time of its formation". Please note that the classification of customary international law is linked to concept of international customary law in general. Pursuant to the prevailing view in doctrine, existing rules of customary international law shall be deduced from the decisions of international courts and tribunals. As such, in litigation, the burden of proof (onus probandi) might prove to be vital. In this vein, there may be cases where an international court or tribunal may consider which party shall bear the burden of proof as a procedural matter. Even in these cases, the view on customary international law is directly linked to the views on general international law substantially". For instance, "states are assumed to be allowed to do anything that is not expressly prohibited... the burden of proof is on a state opposing another's actions to show that a rule or custom prohibits such action"®, Please note that such conception of international law is based on Lotus principle as affirmed by the PCY, and is highly contested even today. 8 For these assessments, see ibid, p. 41. "© ibid, p.39. On this, compare the assessment of PCIJ in Lotus, Judgment, 1927 P.C.LJ. (ser. A) No.10, 30-31 (Sep. 27) ond Haya de la Torre (Colom./Peru), Judgment, 1952 |.CJ. Rep. 72, 81-82 (June 13). © BLOND'S, p. 37.144] II. CODIFICATION Literally, codification is "enacting a code". Etymologically, “code" comes from codicis; in plural, codex, caudex. In Latin, codicis means a tablet to write, book, registry, writing, collection of laws, tree trunk(s). Taking these into consideration, "code" in English may refer to (i) systematic statement of a body of laws, especially one given statutory force (e.g. Codex Justinianus), (ii) system of principles or rules (e.g. moral code), (iiix) system of signals or symbols for communication, (iii.B) system of symbols used to represent, assigned and often secret meanings, (iv) genetic string. In law, essentially, "codification" is to bring systematically together customary legal rules that exist independently or dispersedly. In international law, codification is significantly important. In this sense, it is purported to bring systematically together the rules of customary international law to represent a systematic statement of the positive international law, in a double sense. On the one hand, codification retains the original character of such rules of customary international law that are codified. On the other, by codification, rules that are codified are granted legally binding force explicitly. From another perspective, codification in international law may be conceived in dual terms. On the one hand, codification is made as a scientific activity of a publicist or a group of lawyers. In the outcome, there may be either legal rules brought together as they are (de lege lata), or rules are brought together with some additives from the category de lege ferenda. Overall, this type of codification is more or less subjective but unofficial in its character. On the other, codification is realized through an official, international (inter-state) conference. In this, codification is made145] on behalf of contracting parties, resulting in treaty rules. The latter is written, formal source of law while the former is: written, although subsidiary source of law. However, in some cases, the two are intermingled. In North Sea Continental Shelf, the World Court observed that some clauses included in a codification treaty may reflect drafters’ intention to propose a new rule or to introduce a new principle to be observed, “with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law". In such a case, subjective and unofficial, and objective and official may result in a codification treaty containing both in its character. In this vein, as some interwar lawyers have observed, codification in its double sense may (i) either confirm existing rules of international law, (ii) adapt the same to new circumstances, or (iii) replace the old with new tules, (iiiB) propose to change the then valid and binding international legal rules, or (iii-y) introduce entirely new rules. To give an example among many, one should note that by 1982 UN Convention on the Law of the Sea, Part V, the contracting parties agreed to introduce “exclusive economic zone" as an entirely new category of maritime area. Taking the above into consideration, codification activities may either be unofficial or official. The former belong to the tradition of publicists’ tradition after the Enlightenment for the purpose of restatement, renovation or compilation of international legal proviso. In some cases, these activities are performed by a single publicist, e.g. Jeremy Bentham, Abbé Grégoire, Esteban Ferrater, Francis Lieber, Johann © Regarding the principle of equidistance included in Art. 6 of 1958 Geneva Convention on continental shelf, see North Sea Continental Shelf, 162.146] Kaspar Bluntschli, David Dudley Field and so on. Through the advent of professional organizations in the doctrine, these rather private interventions paved the way to the work of collective bodies, e.g. that of Institut, International Law Association, Union interparlementaire, American Society of International Law, American Institute of International Law, Grotius Society etc. The latter include the work of diplomatic conferences and international organizations. Under these official activities a distinction might be made with regard to foundation of worldwide international organizations. (i) Before the foundation thereof, several conferences or congresses purported to codify various fields of international law, most notably laws of war and law of the sea, in whole or in part. Prime examples include but are not limited to 1815 Vienna Congress, 1856 Paris Congress, 1864 Geneva Congress, 1874 Brussels Conference, 1899 and 1907 Hague Peace Conferences. (ii) Following the foundation of worldwide organizations, (a) first attempts were made in interwar period, led by the LoN that marks the era to the end of Great War (1914-1918) as well. In order to codify rules of international law in various areas, e.g. nationality or territorial waters, First Conference for the Codification of International Law gathered in Geneva, 1930. Although a convention on nationality is adopted, adherence to the convention was small, and though some other treaties were concluded and entered into force such as 1929 Geneva Convention on prisoners of war, further attempts at codification in the LoN era proved fruitless. Such attempts at codification were hampered substantially by economic crises, emergence of ideological differences, arms race and the outbreak of the Second World War in 1939.1471 (8) After the foundation of the UN in 1945, LoN officially dissolved in 1946. In this era, particular emphasis is given to codification of international law. For instance, acting under Art. 13/1/a of the UN Charter, which not only required but also prompted General Assembly to further work on codification and progressive development of international law, the same body established in 1946 a committee for the mentioned purpose. Upon advice of committee, General Assembly created UNILC in 1947. In this vein, UNILC's main goal is the progressive development of international law and its codification, on which UNILC started to work in 1949. The initial program of UNILC consisted of topics such as the formulation of international legal rules applied by the Nuremberg (Nuernberg) tribunal; crimes against peace and security of the humanity; rights and duties of state; nationality; law of the sea; law of treaties; reservations to multi-partite agreements; diplomatic relations and privileges. However, these topics were extended since then. To cut the long story short, following its foundation, UNILC have contributed substantially to codification in international law. Work of UNILC on codification is closely linked to UN diplomatic conferences, though this has not always been the case. Notable instances include but are not limited to UN Conferences on law of the sea (1958, 1960, 1973-1982), diplomatic relations (1961), consular relations (1963), law of treaties (1969, 1986), and so on. Recently, non-governmental international organizations have gained much more importance in stimulating movement towards codification in various fields, especially with regard to human rights, non-proliferation and humanitarian issues. By attracting focus of international community on such issues, these148] organizations led governments to conclude multilateral treaties, in other words, to codify. Instances include but are not limited to conventions on landmines, prohibition of nuclear weapons etc.CHAPTER V CONVENTIONAL LAW: LAW OF TREATIES I. DEFINITION As is noted by some learned writers, through reading treaties only, one may acquire an idea on international law albeit one may never have a comprehensive understanding thereof without reading any. The idea here is not to undermine law of treaties but to conceive it in its right place. Overall, the mainstream doctrine puts emphasis in customary international law. In other words, the bulk of the publicists opine that international law is customary in its origin. However, contrary to this understanding in Anglo-American doctrine, some continental lawyers still hold the view that treaty law is as equally as, if not much more important than, customary international law. Then, how shall we conceive the concept of treaty in international law? First, some remarks on terminology ought to be made. Throughout the doctrine, some publicists name "law of treaties" or “treaty law" as “conventional law". In this sense, as complementing the concept of customary international law, conventional law is the body of rules in relation to law formed mainly by an agreement. By "conventional", one may mean either (i) formed by agreement or contract, or (ii) according with, sanctioned by, or based on convention. Hence, what is a convention? In terms of linguistics, "convention" may mean (i) agreement, contract, (ii) agreement between states for regulation of matters[so] affecting all of them, (iii) assembly of persons met for a common purpose, especially a meeting of delegates of a political party or a cause. In international law, based on its meaning in the second one above, a "treaty" is a legal transaction, a convention either (i) to establish a new legal relationship between two or more subjects of international law, or (ii) to abolish or to modify an already existing legal relationship between the same. Nonetheless, in international relations, there are other names to designate a treaty, e.g. agreement, convention, protocol, charter, covenant, pact, declaration, statute, act, communiqué, exchange of notes, final act, constitution etc. None of the special names attached to such a legal instrument affect the legal status of it being a treaty. As mentioned in Second Restatement §40 (1965), an international agreement of the US, a "treaty" or an "executive agreement", shall relate to the external concerns of the nation as distinguished from matters of purely internal nature. However, in particular contexts, terminology adopted is crucial. For instance, as will be shown further below, in contrast to treaties, executive agreements shall not require advice and consent of the Senate in the US. In this sense, actually, treaty is a family name including members, e.g. founding instrument of UN is titled a "charter", LON a "covenant", PCI] and ICJ a "statute", states attended the Helsinki Conference titled their declaration upon the conference “final act". A brief explanation on some particular denominations and their meaning ought to be made here for sake of clarity. Treaty is an agreement made for important, solemn problems, e.g. a peace treaty. It is frequently used in international practice to refer to an international agreement in its widest sense, e.g. treaty law. As mentioned above, the latter term is usedIsa] interchangeably with conventional law, and has wider use in that aspect. In the US doctrine, however, "treaty" is a distinct term used for international agreements, and "according to the US Constitution Art. II/2/a, treaty is an international agreement made by the President with the advice and consent of the Senate. Two-thirds of the Senate must vote in favor of the agreement". Consequently, for the US Supreme Court, treaty is "..a compact made between two or more independent nations, with a view to the public welfare"®. Convention, in turn, is a treaty that declares law or makes law, and occasionally the term is used for international agreements drawn up to govern the legal, commercial transactions, or to govern technical relations between states, e.g. extradition. Protocol, as a word, has three different meanings. First, it is a type of a treaty, a legal transaction made to modify or to abolish an already existing legal relationship. For instance, Turkey and Greece adhered to NATO by a protocol signed on October 17, 1951 in London. In its second meaning, protocol means courtesy. Thirdly, protocol connotes written document. Pact, pactum in Latin, is an international treaty usually includes those that establish a political alliance between the parties thereto, e.g. Warsaw Pact. “ BLOND'S, p. 121. “© B.Altman & Co. v, US,, 224 U.S, 583, 601 (1912).[52] Declaration has a double meaning. In one aspect, it means it is something that is declared. In the other, it is a document containing such a declaration, e.g. Declaration on Human Rights. In any case, the parties to an agreement may designate the title thereto as per the prevailing understanding in their conduct of international relations and diplomacy. In this vein, there have been and may be irregular examples, e.g. constituent agreement of Food and Agriculture Organization (FAO) is called "FAO Constitution". The basic idea of a treaty or a contract in general is an agreement. In this vein, "agreement" means, either (i) act or fact of agreeing, or (ii) harmony of opinion, action or character, concord. In its verb form, "to agree" implies complete accord usually attained by discussion and adjustment of differences through negotiation. Therefore, a treaty is an international agreement made between two or more subjects of international law. Law of treaties is concerned with the rules and principles applicable to treaties. The treaty on law of treaties is 1969 Vienna Convention on the Law of Treaties, entered into force on January 27, 1980. As such, Vienna Convention is “the authoritative source on... treaty law. The ambit of the Convention has developed largely through customary pplication of _ its provisions, rather than through legal adoption", In other words, the Convention is the result of application of customary international law on treaties, and overall, reflects “© BLOND'S, p. 121.1531 customary international law*. Nevertheless, upon perusal, one may notice that in line with flexible approach of the Convention in general, most of the clauses allow states to opt for a procedure to be followed by the same in treaty formation, relations, and applicable rules thereto. 1969 Vienna Convention is limited to treaties between states only, including constituent instruments of international organizations. Thus, the Convention defines "treaty" somewhat ambiguously as “an international agreement concluded between states in written form and governed by international law" (Art. 2/1/a) whereby treaties involving an international organization as a contracting party shall be governed by "Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations", adopted in 1986 but not yet in force. Following remarks are only an introduction to law of treaties. The subject is vast and complex just as in any other international legal topic. Suffice it to note that issues related to several subjects, e.g. most favored nation clauses or clausula rebus sic stantibus, are omitted for the sake of brevity though one shall not overlook their importance in practice. La. Negotiation Capacity to be bound by an international agreement is crucial for the concept of negotiation of treaties. In almost all cases, entities possessing international personality have the capacity to enter into treaties. In other words, subjects of On this, see e.g. Questions Relating to Obligation to Prosecute or Extradite (Bel. v. Sen.), Judgment, 2012 CJ. Rep. 422, 9100 (July 20) (rule on non-retroactivity of treaties in 1969 Vienna Convention reflects customary international law) and compare Armed Activities on Territory of Congo: New Application 2002 (Dem. Rep. Congo v. Rwanda), Judgment, 2006 1.C.J. Rep. 6, 4125 (Feb. 3) (rules on procedures for dispute settlement in 1969 Convention are not of a customary character).[541 international law enjoy the capacity to enter into treaty relations with other subjects. These include, 1.States: Whatever concept of international law is adopted, states are the basic units, fundamental subjects of international law. Therefore, states may enter into negotiations with other subjects under international law. Accordingly, it may also be said that since each and every state is sovereign in its own right, unless bound by a rule of international law to the contrary, the same are free to negotiate with others in order to conclude a treaty. As declared by 1969 Vienna Convention, every state possesses capacity to conclude treaties (Art. 5). 2.International organizations: As subjects of international Jaw, international organizations may enter into negotiations with other subjects for the purpose of conclusion of a treaty. However, such organizations’ capacity is limited by their purpose and scope. Bound by the principle of ultra vires, international organizations may only act within the power authorized by law for such entities. In other words, international organizations shall not have capacity to enter into treaty negotiations with other subjects beyond, outside of, or in excess of powers that which is beyond the capacity prescribed by law. Under 1986 Vienna Convention, "the capacity of an international organization to conclude treaties is governed by the rules of that organization" (Art. 6). 3.In federal states, non-self governing territories, or sui generis entities: For state unions, either federation (US, Germany, Russia etc.) or confederation (historically, Serbia and Montenegro etc.), the capacity of constituent states is governed by the constitutional[551 law of the union of which they form part**. Historically, non-self- governing territories were subject to the consent of the governing state. Some entities, such as overseas countries, have unique relations with the state with which they share government of their own territory. Examples of such sui generis entities include but are not limited to New Caledonia (France), the Netherlands Antilles. In some cases, the treaty in question provides guiding rules on such entities especially with regard to territorial scope of treaty. In others, where the quality of the entity is disputed, the treaty may explicitly regulate issues related to participation of the same thereto. For instance, pursuant to 1982 UN Convention on the Law of the Sea (UNCLOS), entities such as "Namibia, represented by the UN Council for Namibia" or under several conditions “all territories which enjoy full internal self-government, recognized as such by the UN..." may enter into treaty relations within the ambit of UNCLOS (Art. 1/2/2, 305). Since the advent of state bureaucracies and diplomacy, in almost all cases, states are represented by delegations or representatives to conduct negotiations of a treaty. A delegate or delegation is appointed as per the internal law of the state concerned, and to discuss the items of treaty at hand on behalf of that state. Under 1969 Vienna Convention, "a person is considered as representing a state... if" (i) that person “produces appropriate full powers", or (ii) in virtue of his/her functions such person is considered to represent the state concerned. The latter includes (a) heads of state, heads of government and ministers of foreign affairs in general, (8) heads of diplomatic missions in negotiations with the state to which they are accredited, and representatives "8. On this, see BLOND'S, pp. 125-126.[56] accredited by states to an international conference or to an international organization or one of its organs for the purpose of negotiation of a treaty in that conference, organization or organ in particular (Art. 7). Heads of permanent missions to an international organization, for the purpose of negotiating a treaty between the same and that organization shall be considered to have full powers, as well (1986 Vienna Convention, Art. 7/2/d). In return, under the rules of the organization when circumstances allow for a person to be considered by state(s) and that organization to represent the same organization in negotiations, such person has capacity to represent the same organization without full powers therein (1986 Vienna Convention, Art. 7/3/b). In diplomatic usage, one may also prefer "credentials" instead of full powers. Credentials, in this sense, mean testimonial showing that a person is entitled to credit or has a right to exercise official power in the name or on behalf of the body or entity which such person represents. Full powers, in the same vein, "is a document by which a state" or an international organization grant "a named representative the power to execute a treaty"® (1969 Vienna Convention, Art. 2/1/c). In international practice, to avoid having to produce full powers in each case within an international organization, states issue general full powers for its permanent representative to the organization. However, issuance of such full powers shall not imply that the representative is free in his own will. "9 On this, see BLOND'S, p. 126. 5 On these, see Anthony AUST, Modern Treaty Law and Practice, Cambridge, NY, CUP, 2002, pp. 61-62.[571 Lb. Conclusion. By conclusion, what is meant is the adoption of the text, finalizing the legal instrument embodying the treaty. For this purpose, it would be convenient here to sketch how negotiations proceed and come to an end. Unless otherwise agreed to by parties concerned, after presentation of the full powers in between representatives, negotiations begin. The delegates start bargaining the text of the agreement and make proposals on draft documents. In international conferences, the procedure is the same. However, in most cases, a council headed by a president is formed up in order to conduct and supervise proceedings of such conference. In that case, all drafts and interaction between the parties concerned are communicated through, compiled by or made public by that council. Overall, a treaty begins with a preamble, usually demonstrating object and purpose of the same and governing principles thereof. While the first articles would state the scope of application of the treaty, the last articles deal with language, reservations, entry into force, signature and ratification. For instance, if a treaty is drawn up in multiple languages, such languages and the authoritative, prevailing language is generally ensured in the text. Or, if a treaty is subject to ratification, treaties generally indicate this in the last articles. Traditionally, the adoption of a treaty takes place by the consent of all participant states just as another instance of unanimity rule (1969 Vienna Convention, Art. 9/1). Gradually, this practice paved the way for a more flexible approach, e.g. majority