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Annales de la Faculté de Droit d’Istanbul
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ISSN (Online) 0578-9745
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  • International Law in Cyberspace: An Evaluation of the Tallinn Manuals

    • Authors: Ebru OĞURLU
      Abstract: While cyber technologies have been advancing since the late 1980s and early 1990s, cyberspace became one of the platforms in which interstate relations occur, ranging from politics and economics to war and conflicts as a result of the mainstreaming of broadband Internet access in the early 2000s. Previously imagined as a platform for free and open communication among people without any state controls or regulations, cyberspace has become one of the main topics of international politics over the last decade. However, laws and policies managing cyberspace have fallen behind the technological developments. Thus, the issue only started to gain the global attention it deserves when modest progress was observed in international law concerning the legal status of cyberspace and the relevant valid principles in the 2000s. State-led cyber operations against Estonia in 2008, Georgia in 2009, and Iran in 2010 supposedly played a significant role in transforming cyberspace into an area of national and international concern. Subsequently, various initiatives have emerged at the international level for adopting internationally recognized cyber rules and principles. Within the framework of Janssens and Wouters’ (2022) study Informal International Law-Making: A Way Around the Deadlock of International Humanitarian Law', this work aims to discuss how and to what extent international law can be developed for application in cyberspace by focusing on the Tallinn Manual on the International Law Applicable to Cyber Warfare (Schmitt [Ed.], 2013) and the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Schmitt [Ed.], 2017), the most comprehensive, albeit non-binding, works published to date on the applicability of existing international law in cyberspace. Using a literature review as its method, the study presents the results of the main legal texts and academic studies and argues that even though the issue has only recently come to the fore as one of the newest areas of international legal systems, the specific rights and duties of states flowing from the age-old principles of international law (i.e., sovereignty, territoriality, and non-intervention) have not become obsolete in this domain.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • Transformation From Soft Law to Hard Law of International Environmental
           Protection: Process, Basic Concepts And Principles – Part II: “No
           transboundary environmental harm”, “Precautionary”, “Environmental
           impact assessment” and “Access to information and participation in
           decision-making process” principles

    • Authors: Mehmet Semih GEMALMAZ
      Abstract: Transformation From Soft Law to Hard Law of International Environmental Protection: Process, Basic Concepts And Principles – Part II: “No transboundary environmental harm”, “Precautionary”, “Environmental impact assessment” and “Access to information and participation in decision-making process” principles
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • Green Is the New Black: The Rise of Green Marks and Possible Solutions to
           Greenwashing

    • Authors: Çiğdem YATAĞAN ÖZKAN; Berrin DİNÇER ÖZBEY
      Abstract: If a popularity contest were to occur among colors nowadays, green would be the winner by far. Fast and alarming global warming has created huge and obligatory changes to consumer habits. This has put some big burdens on companies to massively change their production processes. Due to a significant percentage of consumers having changed their purchasing habits, companies are taunted with being green, and they have started greenwashing practices to take advantage of consumers’ new habits without changing their corporate policies. The rise of greenwashing has caused an urgent need to protect consumers and the market. Both Turkish and foreign governments regulate certain markets such as food and agriculture and also bring certain restrictions in terms of advertisement law to eliminate deceptive images from being created in consumers’ eyes. However, the gap in green marks shows the urgent need to amend the trademark law approach to protect consumers from greenwashing and to safeguard the proper functioning of the market. This work first examines the definition of green marks and ecolabels, as well as their confusing concepts, followed by present regulations regarding different legal areas. Upon this, the study then discusses the urgent need to regulate trademark law regarding green marks and makes proposals for legislation in line with recent EU regulation proposals regarding green claims.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • A study on the deposit (within the meaning of Art. 177 of the COT), the
           actual forfeiture (art. 178 of the COT), and the resolutive penalty (the
           last paragraph of Art. 179 of the COT)

    • Authors: Efe Can YILDIRIR
      Abstract: Acts that parties fulfill or undertake to fulfill in order to prove a contract concluded or to be rid of an undertaken commitment are frequently encountered in both daily and commercial life. When taking this situation into consideration, legislators have considered the importance of these types of centuries-old habits by introducing regulations to the Turkish Code of Obligations (TCO) on earnest money, forfeit money, or withdrawal and termination by paying a penalty and attaching certain legal consequences. This study aims to analyze each of these concepts separately in terms of theory and practice. The first section will analyze earnest money from the point of view of its nature, function, and fate in the event of performance or non-performance of the main performance obligation, as well as the application or non-application of the last paragraph of Article 182 in the TCO concerning the reduction of the contractual penalty. In particular, the first section will discuss the provisions of the German Civil Code concerning deposits and their compatibility with Turkish law. The second and third chapters will examine the concepts and similar functions of forfeit money and withdrawal or termination by paying a penalty from the point of view of their nature, their functions, and their fate in the event of performance or non-performance of the main performance obligation, as well as the application or non-application of the last paragraph of Article 182 in the TCO concerning the reduction of the contractual penalty. In this context, these sections will only analyze Swiss law regarding the examination of these concepts, given the exceptional nature of these provisions.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • Negotiorum Gestio As a Source of Obligation: From Roman Law to Modern
           Codes

    • Authors: Baha Yiğit SAYIN
      Abstract: The legal institution of Negotiorum Gestio refers first and foremost to the act of helping or aiding someone in need, typically with the intention of doing good or promoting the well-being of the recipient. This concept has a long history, with roots in Roman law and its diversified influence on modern legal systems. In this article, we explore the evolution of negotiorum gestio from its origins in Roman law to its current manifestation in modern civil codes while providing an examination of how the concept has been defined, understood, and applied within Roman law over time as well as of its long journey through out ius commune to the modern codification era. Being a strictly Roman law institution, the prevalent incorporation of negotiorum gestio into the codes of the ‘civil law’ jurisdiction as well as its designation as one of the sources for non-contractual obligations under the harmonized rules of ‘EU Rome II Regulation’ calls for a close-in analysis of this originally Roman concept which will shed light on the degrees of the evolution, transformation and reception it had experienced while helping to make sense of its current state in modern civil law.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • Syrians under Temporary Protection and Their Acquision of Turkish
           Citizenship

    • Authors: Zeynep Derya TARMAN
      Abstract: This paper describes possible ways of acquiring Turkish citizenship in relation to those Syrians in Turkey who are under temporary protection status. The paper initially provides an overview of the types of international protection statuses under Turkish law following which temporary protection status is examined. Next, the Turkish Citizenship Act is analyzed through the status of Syrians in Turkey. In this regard, initially, the acquisition of Turkish citizenship through kinship and general neutralization are explained, following which exceptional ways of acquisition is elaborated upon. Then, acquiring Turkish citizenship through marriage is explained which is followed by the final section on acquisition of Turkish citizenship through adoption. In providing such explanations, Council of State decisions that reflect the discretionary powers of the administrative authorities as well as the interpretations under the doctrine are taken into account. While certain particularities and restrictions under the relevant laws exist and the discretionary powers of the administrative authorities as well as Turkish public policy concerns may cause obstacles, the Turkish Citizenship Act provides possible legal grounds for the naturalization of Syrians under temporary protection in Turkey.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • “Inherent Vice of the Goods” Exception in the frame of “Volcafe Ltd
           and Others v. Compania Sud Americana de Vapores SA” Decision: An
           Assessment under Turkish-German Law

    • Authors: Melda TAŞKIN
      Abstract: The United Kingdom Supreme Court, in “Volcafe Ltd and others (Appellants) v. Compania Sud Americana De Vapores SA” case set forth an important principle related to burden of proof for the exceptions of carrier’s liability counted in Art.IV/2 of the Hague Visby Rules and decided that “the carrier is under the obligation to substantiate the due diligence for the protection of the goods carried”. According to Art.1182 of the Turkish Commercial Code (TCC), titled “the Circumstancesbthat provide Presumption related to Causality and Absence of Negligence to the Carrier”, “damages arise from the inherent vice or characteristics of the goods” is accepted as an exception which facilitates the exclusion of the liability of the carrier. On the other hand, the German Commercial Code (HGB §499,3) includes a provision which states explicitly that “the carrier may avail itself of the defences related to the inherent characteristics of goods only if it has taken all of the measures in respect of the use of specific equipment”. This study aims to review the provisions in both Turkish and German Law related to the exception of “inherent vice of the goods” and making a remark taking into consideration of the United Kingdom Supreme Court’s decision.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • The Legal Nature of Program Formats as Copyrightable Works in Turkish Law

    • Authors: Gül BÜYÜKKILIÇ; Halil Berk ERDOĞAN
      Abstract: Program formats can be defined as the fundamental structures that include the characteristic features of a program, allowing different program episodes to be created by evaluating the format in a similar yet distinct manner in each episode of the program. Initially emerging in the radio field and later gaining prominence in the television industry, formats have expanded their usage to include digital platforms as well. Currently, there is a strong demand in the markets of various countries for formats that have already been created and aired in other markets. However, there is no clear legal regulation on how program formats should be protected. In the doctrine, there is often a debate about whether formats can be protected as works under Law No. 5846 on Intellectual and Artistic Works1 (IPL). These debates center on whether formats have a degree of concreteness worthy of protection as copyrightable works and whether they bear the characteristics of their authors, and even if these conditions are met, there is no consensus on which category of works formats should be included in. This study focuses on the evaluation of program formats within the scope of the IPL criteria for being considered as works, based on Turkish legal doctrine and judicial decisions.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • Shifting Financial Privileges from Dynasty to Parliament In the Emergence
           of Modern Turkiye

    • Authors: Barış BAHÇECİ
      Abstract: This study deals with the emergence of modern Turkey in the axis of the change in financial privileges. In this respect, the acts of the parliaments are analysed with a descriptive approach. While the parliament conducted the liquidation process of the Ottoman dynasty, it also created some new privileges for its members. This study examines this simultaneous process. The liquidation process started in 1908 with the establishment of a constitutional monarchy initiated by the Committee of Union and Progress (İttihat ve Terakki Cemiyeti). Only after 1920, a national assembly convened under a new leadership in Ankara continued the process and seized the assets of the dynasty, ended tax privileges, and cut their allowances in 1924. However, during the same period, parliament extended the financial status of its members with laws enacted even unconstitutionally. Despite that allowances of MPs were increased, and rules creating pension rights turned into a legislative behaviour that set an example for the following decades too. Moreover, parliament also established financial privileges by tolerating the economic activities of its members. Thus, financial privileges based on blood ties were replaced by another type of privileged status in parallel with the transfer of sovereignty.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
  • History and dogmatics of law by Puchta and Rudolf von Jhering

    • Authors: Ahmet ARSLAN
      Abstract: Since Roman law, the systematic understanding of the law has been based on natural law. However, the systematization and abstraction of law reached their pinnacle with the Pandectists under the influence of Friedrich Carl von Savigny. The jurisprudence of concepts is a legal methodology that systematizes legal concepts and rules in a pyramid through abstraction and generalization. The aim is to mathematically calculate/geometrize the law to prevent it from being arbitrary and unpredictable. This theory is exemplified in the right of way (Wegeservitut) by Puchta, the first jurist to come to mind regarding the jurisprudence of concepts. Jhering criticized Puchta’s views as unrealistic, impractical, and contrary to the sense of justice, following his turnabout. In this manner, he demonstrated sociological approaches to the law and shifted methodologically toward purpose-oriented, practical jurisprudence. Jhering criticized Puchta’s ideas for being unrealistic, difficult to implement, and devoid of a sense of justice (Rechtsgefühl). Jhering demonstrated sociological legal approaches and turned to pragmatic jurists. According to him, the ultimate purpose of the law and its practical application should not be overlooked. Consequently, the purpose of law and a sense of justice should play a determining role in legal methodology. With these ideas, he pioneered the current dominant methodological jurisprudence of interests/values.
      PubDate: Fri, 24 Nov 2023 00:00:00 +030
       
 
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