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Public and Private International Law Bulletin
Number of Followers: 3  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1308-0385
Published by İstanbul Üniversitesi Homepage  [18 journals]
  • The Competence to Conclude Treaties in International Law and the
           Invalidity of Treaties within the Scope of Article 46 of the Vienna
           Convention on the Law of Treaties

    • Authors: Bilge Erson Asar
      Abstract: The regulations governing the domestic procedures that states are to follow in their processes regarding the conclusion of a treaty represent one of the limited areas where international law intersects with domestic law. Nonetheless, the regulations in this area include various procedures. The power to conclude treaties, traditionally vested in the executive, has become a practice shared with the legislature in line with democratization processes. Constitutional courts or judicial bodies with similar powers may be able to be involved in these processes in some states. Other states even have treatyconcluding procedures that require a referendum. If a state becomes a party to an international treaty in violation these rules of domestic law, it may invoke the treaty’s invalidity under Article 46 of the 1969 Vienna Convention on the Law of Treaties (VCLT). While this provision may seem to challenge both internationalism and constitutionalism, its practical application proves to be extremely difficult and rare. Both the complexity of states’ rules on treaty-making and their diverse nature further complicates the matter to the extent that a general categorization becomes challenging. The study delves into the development, scope, and limitations of the relevant provision in VCLT and analyzes why this ground of invalidity, which was one of the most controversial issues in the preparatory work of the VCLT, is highly exceptional and unlikely to succeed if invoked. In addition, this study addresses the applicability of this provision to the rules on withdrawal from treaties that are currently under discussion in academia.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Breach of Proper Notice Regarding Arbitrator Appointment or Arbitration
           Proceedings as Grounds for Refusal of Enforcement Under the New York
           Convention

    • Authors: Candan Yasan Tepetaş
      Abstract: The right to be heard is a fundamental right granted to parties in arbitration proceedings, and a requirement of the right to be heard is that the parties must be adequately and timely informed about the appointment of the arbitrator and the arbitral proceedings. Proper notice ensures the implementation of the right to be heard in arbitration. Thus, notice directly affects the validity and enforcement of arbitral awards. Article V(1)(b) of the United Nations (UN) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention; UN, June 10, 1958) provides that recognition or enforcement of an award may be refused if “the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or the arbitration proceedings.” This study examines what should be understood from the concept of “proper notice” under Article V(1)(b) of the New York Convention and how this concept is elaborated upon in the practice of arbitration. The study in this respect first discusses the right to be heard in arbitration and the relationship between this right and proper notice. The study then goes on to evaluate the elements required for a notice to be deemed proper. Subsequently, the article examines the issues related to the application of Article V(1)(b) of the New York Convention, such as applicable law and burden of proof, and finishes up with the conclusion. The facts that notices in arbitration proceedings are not made by official means and that the methods in international agreements are not applied do not cause a notice to be deemed improper. Moreover, not every breach or deficiency in presenting a notice will result in a refusal to enforce an award under Article V(1)(b) of the New York Convention. Under Article V(1)(b) of the New York Convention, objections regarding violations of the right to be heard due to a lack of proper notice should be interpreted narrowly and should be of a nature that may affect the outcome of the arbitration proceedings. Finally, even if the content of the notice is not written on the tracking documents a courier company issues, these documents should be deemed sufficient to prove that a notice has been made. If the respondent claims that the notices made by cargo or courier are unrelated to the arbitration proceedings, the respondent needs to prove this.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Discussions on Authority and Procedure in Withdrawal from International
           Treaties from the Perspective of International Law

    • Authors: Lider Bal
      Abstract: Examples and threats of withdrawing from international treaties have occupied the agenda of public opinion more than ever in recent years. South Africa’s withdrawal from the International Criminal Court, the USA’s withdrawal from the Iran Nuclear Agreement and withdrawal threat from the Paris Agreement, the United Kingdom’s withdrawal from the European Union, and Venezuela’s withdrawal from the American Convention on Human Rights are the first examples that come to mind. These unusual examples of treaty withdrawal involve states governed by authoritarian regimes, as well as treaties that concern individual civil rights and freedoms. Both cases have debated the appropriateness of withdrawal decisions and the compatibility of the methods used to make these decisions using values such as democracy and the protection of human rights. Türkiye’s withdrawal from the Istanbul Convention by presidential decree and the claim that the country can withdraw from the European Convention on Human Rights through the same method have caused legal debates and criticisms. Given the significance of the Istanbul Convention, particularly in terms of human rights law, and the international obligations arising from Türkiye’s membership in the Council of Europe, these issues also need to be evaluated from the perspective of international law. In light of Türkiye’s withdrawal from the Istanbul Convention, this study aims to examine the issues of authority and procedure regarding withdrawal from international treaties from the perspective of international law. For this purpose, examining the executive-centered approach of the Vienna Convention on the Law of Treaties would be appropriate first, followed by the new phenomenon based on the principles of separation of powers and democracy, which leads to questioning this approach at the international level, particularly in the context of human rights treaties.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Use of Satellites in Terms of the Principle of Exploration and Use of
           Space for Peaceful Purposes

    • Authors: Kerem Batır; Pervin Şeker
      Abstract: Space is now a predominant area for technological development, and its importance is increasing. This area was initially dominated by military activities but has hosted numerous agents over time. The launch of the Sputnik I satellite on October 4, 1957, marked a turning point in space exploration. This event signaled the beginning of the Space Age as the major powers continued their race for space. Activities involving space have increased in momentum since that time. The protection and regulation of space have become important because of interstate competition. The approaches of space powers and historical events were effective in the legal regulations. Moreover, some universal and unchangeable principles have been defined in legal regulations. In this context, the principle of “exploration and use of outer space for peaceful purposes” is significant. This principle has been interpreted in various ways, depending on the perspectives of actors vis-à-vis space. The current scenario of diversified actors and the expanding and changing structures of space-related activities necessitates a reevaluation of this principle, whose structural ambiguity renders the legality of some space activities controversial. Satellites represent one of the oldest and most important application areas of the space industry and their use evinces visible transformations. The dual use of satellites creates uncertainty in the context of the stated principle. The current circumstances thus necessitate a reconsideration of the relationships between space applications and the principle of peaceful use. This study examines the dual-use nature of satellites, citing examples of the principle of exploration and use of space for peaceful purposes.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Ius Soli Basis in the Acquisition of Nationality by Birth

    • Authors: Hande Ünsal
      Abstract: People who gained citizenship at birth continue to make up a predominant part of the global population. Therefore, the principles and procedures for the acquisition of nationality by birth are critical for both individuals and states. The two fundamental principles for acquiring nationality by birth are ius sanguinis (descent, lineage, and blood basis) or ius soli (birthplace and soil basis). In the traditional sense of ius soli, being born on the territory of a state is sufficient to acquire the nationality of that state. However, in the post-World War II period, ius soli became increasingly engaged in preventing statelessness and attributing nationality to second- and third-generation immigrants. Regarding the “statelessness preventive function” of ius soli, children who cannot acquire the nationality of any state due to their parents and/or who have been “found” in the country are given the nationality of their birth place. In the use of ius soli for the attribution of nationality to second- or third-generation immigrants by birth, some conditions regarding the mother/father are sought in addition to the fact that the child was born in that state’s territory. The study’s primary goal is to investigate these three applications of ius soli. In this context, problems that have arisen or may arise in practice are examined alongside regulations in international and national laws and general global trends.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Revisiting the Content of United Nations General Assembly Resolutions in
           Shaping and Expanding the International Legal Content of Humanitarian
           Assistance

    • Authors: Naziye Dirikgil
      Abstract: Providing timely and adequate humanitarian access to those affected by natural disasters and conflicts remains a key subject of the United Nations (UN) Summits. This article examines the role of UN General Assembly (UNGA) resolutions in the formation and advancement of the international legal framework for humanitarian assistance. To examine this role, this article first examines the main international legal provisions developed within the framework of International Humanitarian Law and International Human Rights Law, and how they apply to situations requiring humanitarian assistance. The article then provides a comprehensive analysis of UNGA resolutions titled “Strengthening the coordination of emergency humanitarian assistance of the UN.” This analysis coverage began with the first adopted resolution in 1991 and continued through the most recent resolution adopted in 2022. This article notes how the UNGA identifies the key principles of humanitarian assistance, which are impartiality, neutrality, independence, and humanity that are considered to have a key role in addressing the issues related to humanitarian assistance from the UNGA’s perspective. The analysis reveals the relevant international legal rules applicable to the delivery of humanitarian assistance and demonstrates the critical role of the UNGA in defining the legal grounds for humanitarian assistance. UNGA resolutions cover multiple responsibilities and obligations of states and the international community relevant to humanitarian assistance. The article concludes that UNGA resolutions have played a crucial and significant role in defining, clarifying, and expanding the international legal context for humanitarian assistance.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Demilitarized Status in International Law and the Militarization Problem
           of the Eastern Aegean Islands

    • Authors: Cüneyt Yüksel; Nesrin Singil
      Abstract: The roots of the current Eastern Aegean Islands problem go back to the middle of the 19th century when Greece gained its independence. The islands are geographically located in close proximity to the Turkish coast. Therefore, the Islands have been subject to many international conventions, including the 1913 London Treaty and the 1913 Athens Treaty based on the Joint Decision of the Six Major Powers of 1914, the 1923 Lausanne Peace Treaty, the 1923 Convention Relating to the Regime of the Straits, the 1936 Montreux Convention Regarding the Regime of the Straits, and the 1947 Paris Peace Treaty. Greece claims the Eastern Aegean Islands’ demilitarized status that these conventions regulate was abolished. As such, Greece engages in activities and actions aimed at violating the demilitarized status of the Eastern Aegean Islands, with these violations observed to have begun increasing. For this reason, Greece’s claims should be evaluated in the context of current issues, and considering the steps Türkiye will take in response to these violations is also essential. This study is organized into three parts: an examination of the Eastern Aegean Islands and the concept of demilitarized status within the framework of international law, the evaluation of the Greek theses regarding the Eastern Aegean Islands, and the evaluation of the concept of demilitarized status of the Eastern Aegean Islands in light of current issues and Türkiye’s options within the framework of international law. The first section examines the Aegean Islands and the history of their sovereignty and then discusses the concept of demilitarized status and the international regulations regarding it in regard to the Eastern Aegean Islands. The second section addresses the Greek theses on a fundamental change of circumstances having occurred regarding the treaties, how the later treaties replace previous treaties, invoking the right to self-defense, and Türkiye’s inability to rely on the 1947 Paris Peace Treaty. The last section evaluates current issues regarding the demilitarized status of the Eastern Aegean Islands in the context of international law.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
  • Is an Arbitration Agreement in a Fixed Term Contract Enforceable in the
           Event of the De Facto Continuation of the Relationship at the End of the
           Term' Critique of a Recent Decision by the 11th Civil Chamber of the Court
           of Cassation

    • Authors: Işık Önay
      Abstract: This article deals with a specific problem regarding the interpretation and scope of arbitration agreements. Following the expiration of the term in a contract pertaining to a continuous legal relationship, parties sometimes continue their relationship within the framework of the same (or similar) rights and obligations without entering into a further agreement explicitly. In such a case, the problem arises of whether the arbitration clause regarding the first contract covers disputes arising out of the legal relationship that continues beyond the initially agreed-upon term. In order to answer this question, what the de facto continuation of the legal relationship between the parties means should first be determined in terms of law of obligations. Have the parties implicitly extended the term of the contract between them, or have they implicitly established a new contract with the same content' With respect to this controversial issue, the author argues that the will of the parties as a rule is in favor of the first alternative. Secondly, answering the question requires an interpretation of the arbitration agreement to determine its scope. The interpretation of arbitration agreements is ultimately governed by the general principles of contract interpretation. According to the view advocated in this study, arbitration agreements should be interpreted broadly and in line with the trends in international arbitration. The explanatory notes by the legislator regarding arbitration legislation also support this approach. Meanwhile, the decisions by the Turkish Court of Cassation generally tend to interpret arbitration agreements restrictively. The decision this study analyzes shows the Court of Cassation to have ruled that a new contract was established between the parties with respect to a distributorship relationship, which the parties continued after the expiry date that had been initially included in the contract. The Court of Cassation concluded that the disputes arising from this contract should be resolved before the state courts, as the parties’ intention to submit disputes arising from this new contract to arbitration could not be ascertained. The study hereby argues that this decision of the Court of Cassation is open to criticism in light of the trends in international arbitration.
      PubDate: Sun, 31 Dec 2023 00:00:00 +030
       
 
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Publisher: İstanbul Üniversitesi   (Total: 18 journals)   [Sort by number of followers]

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Tel: +00 44 (0)131 4513762
 


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