Cag University Faculty of Law and Faculty of Economics And Administrative Sciences.

Cag UniversityFaculty of Law and

Faculty of Economics And Administrative Sciences

International LawInternational Law I IIVIV

Sources of International Law & International Agreements (Cont’d)

Instructor: Ast. Prof. Sami Doğru

Law Among Nations: An Introduction To Public International Law, Von Glahn, G., & Taulbee, J.L. (2010). (9th ed.). New York: Pearson.

Treaties: FormationTreaties: FormationFour Stages of Formation1. Negotiation2. Provisional acceptance – normally via

signature3. Final acceptance – normally through

ratification4. Official entry into force & registration

1. NegotiationThe most important factor here is

authorization. Individuals who are involved in the

negotiation process must have “official authority” to do so.

“Representatives negotiating a treaty must be duly authorized to carry out their tasks and normally are required to have credentials to that effect.” (pg. 70)

Treaties: FormationTreaties: Formation

1. Negotiation (cont’d)Next, the parties have to give their

consent. How this is done varies, depending on the

type of treaty. For example, some treaties call for

unanimous consent while other treaties call for adherence to specified voting rules.


1. Negotiation (cont’d)Also included are usually stipulations about the acceptance of various versions in regards to language.

After the final text of the treaty has been agreed upon, the next step will be authentication via initialing, signatures, or incorporation into a resolution, etc.).

Authentication confirms “that the text of the treaty is in its final form.” (pg. 71)


2. SignatureOnly persons with the proper authority

may sign treaties.Examples:- Heads of states, - Foreign ministers, and- Other representatives who have been

granted such power.


Ratification“International law does not specify how a

state carries out the ratification process. Virtually every state has developed

detailed domestic regulations spelling out the process of treaty ratification.”

Because of this, we’ll discuss Turkey’s regulations and how it functions in this area.


Ratification (cont’d)

For now, just know that ratification is required before most treaties can become binding.


Official Entry into Force & RegistrationEntry into force is another way of saying that

the treaty is now activated.“Typically, the provisions of the treaty

determine the date on which the treaty enters into force.

Where the treaty does not specify a date, there is a presumption that the treaty is intended to come into force as soon as all the negotiating states have consented to be bound by the treaty.”

UN Treaty Collection (www.treaties.un.org)


Official Entry into Force & Registration“Typically, the provisions of the treaty

determine the date on which the treaty enters into force.


Official Entry into Force & RegistrationArticle 102 of the UN Charter requires the

registration of int’l treaties/agreements:1. “Every treaty and every international

agreement entered into by any Member of the United Nations . . . shall as soon as possible be registered with the Secretariat and published by it.”

2. “No party to any such treaty or int’l agreement which has not been registered . … may invoke that treaty or agreement . . .” (pg. 78)


Official Entry into Force & Registration

In other words, treaties must be registered with the UN Secretariat.


Before moving on, let’s look at some important terminology.

- Understandings- Reservations- Accession- Succession- Self-executing Treaties- Non-self-executing Treaties

Treaties: TerminologyTreaties: Terminology

Understandings“An understanding is an attempt by a state to specify in advance its own interpretation of certain parts of an agreement.”


Understandings (cont’d)For example, if France is about to provide its

ratification of an agreement, it may wish to provide its views in regards to certain parts of the agreement.

Statements of understanding will help France to do this.


Understandings (cont’d)Note that “these statements will have

no binding force. Understandings simply reflect the views of one state.” (pg. 72)

Nevertheless, they may prove useful in the event of a dispute.


ReservationsWhat if a state likes a treaty for its overall benefits, but doesn’t like 1 or 2 parts of it?


Reservations (cont’d)“A reservation is a statement by which a state indicates its non-acceptance or interpretation of an article in a multilateral treaty.” (pg. 72)


Reservations (cont’d)Note that a reservation is not the same

as an understanding. “A reservation is a statement of

amendment inserted into a treaty by one party as a specified condition of ratification.

It is an attempt either to opt out (exempt itself) or to modify certain ‘unacceptable’ conditions.” (pg. 72)


Reservations (cont’d)For example, let’s say that Germany

would like to become a party to a multilateral treaty that contains 5 sections of terms.

Germany agrees with every section except section # 3.


Reservations (cont’d)Instead of backing out of the entire

treaty, Germany may provide a statement of reservation that expresses its objection to (or wishes for modification of) section # 3.

It is only Germany’s position that is being voiced and other states may or may not accept this reservation.


Reservations (cont’d)A reservation is different from an

understanding.Because;- it is not simply a reflection of views;- it is more than that – it is an attempt to opt out or change a

condition that is unfavorable.


Reservations (cont’d)A Bit of HistoryBefore WWII, there were 2 approaches to

reservations:- The first approach was an “all-or-

nothing” approach: A state with reservations could not be a part of a treaty if all the other states did not accept the reservations.


Reservations (cont’d)A Bit of HistoryBefore WWII, there were 2 approaches

to reservations:- The first approach was an “all-or-

nothing” approach (cont’d):So in the example of Germany, it would

be excluded from being part of the treaty if all the other parties did not accept Germany’s reservations to section #3.


Reservations (cont’d)A Bit of HistoryBefore WWII, there were 2 approaches to

reservations:- The second approach was a bit more

flexible and under certain conditions, allowed a state with reservations to still participate in a treaty.

In our example, Germany would have a little more luck in the second approach.


Reservations (cont’d)A Bit of HistoryAfter WWII, the focus began to shift a

little. There was a growing desire for treaties to

be as inclusive as possible. And yet, there was also a growing concern

about how this would affect the integrity and effectiveness of those treaties and the goals they were meant to accomplish.


Reservations (cont’d)So where are we today in the area of

reservations?The environment is still aimed towards

flexibility, in general. However, the trend may lean back towards

a more restrictive view – especially regarding more complicated treaties.


AccessionAccession is “the formal act of

acceptance by a state that had not originally signed or ratified a treaty.” (pg. 74)

Usually, accession applies only to general multilateral agreements. (pg. 74)

Also note that accession “has the same legal effect as ratification.”

UN Treaty Collection (www.treaties.un.org)


Accession (cont’d)Sometimes, permission from the original

parties is required before the new state (the one that did not originally sign) can join in the treaty.

Also remember that states may make reservations upon accession, if those states are permitted (or allowed) to do so. (pg. 74)


Succession

What if there is a state that was once a part of another state and are now independent?


Succession (cont’d)Succession occurs when a “newly independent state, formerly part of another entity . . . joins a multipartite agreement to which its former governing authority had been a party.” (pg. 74)


Succession (cont’d)For example, a British colony that is

now independent may wish to join an agreement that the UK had been a party to.


Self-executing & Non-self-executing TreatiesSelf-executing treaties come into force as soon as the state becomes a party to it.Non-self-executing treaties require implementing legislation before they come into effect domestically. Implementing legislation refers to a change in domestic law that will enable the state to fulfill its treaty obligations.


Cag University Faculty of Law and Faculty of Economics And Administrative Sciences.

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