Publıc Internatıonal Law I

Yanıt Açıklaması: Negotiation and adoption of the text is the first step in the making of treaties.

Yanıt Açıklaması: International Law Commission, composed of 34 members who are elected by the UN General Assembly, follows a set procedure for the adoption of international rules through multilateral treaties or conventions, irrespective whether it is codification or progressive development. The correct answer is E.

Yanıt Açıklaması: According to the Vienna Convention, treaty refers to an international agreement concluded between states in written form and governed by international law.

Yanıt Açıklaması: International organizations are established by treaties and their international personality can be ascertained by looking at their constitutions. It is, however, rarely that the constitution of an international organization would provide and clothe it with international personality. Consequently, the question of whether an institution possesses an international personality can be answered by examining the type of functions, powers, privileges and immunities exercised by it.

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

Yanıt Açıklaması: The principle, as enshrined in Resolution 1514, had not been extended beyond the then existing colonies under the minority White régimes. The post-colonial States are reluctant to allow their minorities to exercise the right of self-determination, as it is disruptive to national integrity and international security. Thus, the Biafrans (in Nigeria), the Somalis (in Kenya), and the Tamilians (in Sri Lanka) have been denied this right so far.

Yanıt Açıklaması: A treaty should have these three characteristics: I- A treaty should be embodied in a written instrument between two or more entities. II- Entities party to a treaty should be endowed with international personality. III- A treaty should be governed by international law.

Yanıt Açıklaması: According to this test, rules of international law do not qualify as rules of “positive law”. Austin categorized them as “laws improperly so called”. Other protagonists of this view were Bentham, Hobbes and Pufendorf, who also questioned the legal character of international law and termed it as merely moral ethical rules.

Yanıt Açıklaması: THE CONCEPT OF ‘SOURCE’ IN INTERNATIONAL LAW Sources of international law are not as explicit and accessible as those of municipal law, nor is the machinery for their identification comparable to municipal law. However, the internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice. These sources are: international conventions , whether general or particular, establishing rules expressly recognized by the contesting States; international custom , as evidence of a gen­eral practice accepted as law; the general principles of law recognized by civilized nations; 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.

Yanıt Açıklaması: The modern approach is based upon the ICJ’s advisory opinion in the Reservations to the Genocide Convention case (1951). According to this approach if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can, in fact, consider that the reserving state is not a party to the Convention, and if a party accepts the reservation as being compatible with the object and purpose of the Convention, it can, in fact, consider that the reserving state is a party to the Convention.

Yanıt Açıklaması: Non-liquet means “it is not clear.” In law, a non liquet is a situation where there is no applicable law. It refers to a situation in which a competent court or tribunal fails to decide the merits of a case for the absence of suitable law, the vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.

Yanıt Açıklaması: According to Oppenheim, international treaties are agreements, of a contractual character, between states or organizations of states, creating legal rights and obligations between the parties (Oppenheim, vol. I, 1992). The Vienna Convention defines treaty as “an international agreement concluded between states in written form and governed by international law” (Art. 2(1)/a). Thus, every treaty is an agreement, but not all agreements are treaties. The correct answer is E.

Yanıt Açıklaması: Ex aequo et bono means what is just and fair or according to equity and good conscience. Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and just. A decision-maker who is authorized to decide ex aequo et bono is not bound by legal rules but may take account of what is just and fair.

Yanıt Açıklaması: It is through recognition that a state expresses its approval of the new state or the new government.

Yanıt Açıklaması: Although Article 38 of the ICJ’s Statute confers “subsidiary” status to “the teachings of the most highly qualified publicists,” they are an important source of international law. Juristic writings made substantial contribution especially in the formative period of modern international law. In this process, publicists made use of natural law principles, analogies from Roman law, and generalization of State practice whenever possible. The writings of Gentilis, Pufendorf, Grotius, Bynkershoek, Van Martens and Vattel, among others, had enormous influence in the development of international law.

Yanıt Açıklaması: The treaty-making power of international governmental organizations is well entrenched in the United Nations practice and confirms that governmental organizations have the capacity to enter into treaties. However, their international personality is confined to their constituent instruments, resolutions, and decisions, which determine the limits of their personality. Thus, the legal personality of international organizations is now an accepted fact. However, unlike states, they do not enjoy unlimited power. Their personality, in fact, can be brought to an end by amending or terminating the constituent instruments.

Yanıt Açıklaması: There are three main approaches to treaty interpretation: • Textual (ordinary meaning of the words), • The intention of the parties, • Teleological (the object and purpose of the treaty).

Yanıt Açıklaması: The term countermeasures imply the unilateral measures that are adopted by a state in response to the wrongful action of another state.

Yanıt Açıklaması: According to the Vienna Convention, only a material breach entitles a party to withdraw from a treaty. A material breach refers to “the violation of a provision essential to the accomplishment of the object or purpose of a treaty” .

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