1/66 Cağ University Faculty of Economics And Administrative Sciences.

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Cağ UniversityFaculty of Economics And Administrative Sciences

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Turkish Law regarding the Ratification of Treaties

International Law IVI

Ast.Prof. Sami Doğru

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Article 38 of the “Statue of the International Court of Justice” describes 3 major and 2 subsidiary sources of int’l law.

Sources of Int’l Law: Review

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1. Treaties 2. International Customs3. General Principles of Law 4. Judicial Decisions5. Writers (Teachings of Highly Qualified Publicists)


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What is treaty?


- An agreement among two or more states or int’l organizations that is intended to be legally binding and is governed by int’l law. - In other words, 2 or more nations consent to an agreement and intend to be legally bound by it.

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Treaties are known by a variety of different names: - Convention, - International Agreements, - Pacts, - General Acts, - Charters, etc.


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There are many examples of international treaties: - “Lausanne Peace Treaty”: Signed in Lausanne, Switzerland on 24 July 1923. - “The North Atlantic Treaty”: Signed in Washington D.C. on 4 April 1949. - Charter of the United Nations: Signed in San Fransisco, on 26 June 1945.

http://en.wikipedia.org/wiki/Lausanne

http://en.wikipedia.org/wiki/Switzerland

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Entry into force of Treaties Basically treaties will become operative when and how the negotiating states decide. But in the absence of any provision or agrement regarding this, a treaty will enter into force as soon as consent to be bound by treaty has been established for all the negotiating states.

Treaties

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Entry into force of Treaties In many cases, treaties will specify that; - they will come into effect upon a certain date or Exc: This Treaty will entry into force on 01 June 2011.

- after a determined period following the last ratification. Exc: This Protocol shall enter into force ninety days following the date on which twelve States have signed it.

Treaties

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Process of Ratification Most modern international treaties become effective only on ratification. International law does not specify how a state carries out the ratification process. The rules relating to ratification vary from country to country. Virtually every state has developed detailed domestic regulations spelling out the process of treaty ratification.

Treaties

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Process of Ratification Ratification is generally held to be an executive act, undertaken by the head of the state or of the goverment, as the case may be, through which the formal acceptance of the treaty is proclaimed. Until such acceptence is forthcoming, a treaty does not create obligations for the state in question except in the rare instance of an agreement that becomes effective and binding on signature alone.

Treaties

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Process of Ratification It is the parties’ intention that is decisive in determining whether an unratified treaty is to be regarded as binding. In many states, executive ratification must be preceded by some action by the legislative organ of the state. For example: In the US, a treaty must receive the “advice and consent” of two-thirds of a quorum of the Senate. This, normally, is followed by the ratification act by the President.

Treaties

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- Before a Treaty can enter into force, the domestic legal system requires a number of steps to be completed. - This legal process is made according to the provisions of relevant regulations in Turkey, including the constitution.

Turkish Law Regarding the Ratification of Treaties

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We will discuss the following topics:1. Relevant legal regulations.2. Negotiation for treaties and the rules for authentication of treaties.3. Binding process of treaties.4. The rules for treaties to enter into force (domestically and internationally).

Turkish Law regarding the Ratification of Treaties

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- The relevant provisions of the 1982 Constitution * Art. 90 : Ratification of International Treaties. * Art. 104: Duties of the President. - Act Nr. 244 on the Performance of International

Treaties. - Act Nr. 117 on Implementation and coordination

of international relations. - Rules of Procedure by laws of 1973 (The Turkish

Grand National Assembly)

1. Relevant legal regulations

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Persons authorized to negotiate a treaty and initial or sign a treaty without a certificate of authority (abroad and domestic):* President

* Prime Minister * Foreign Minister

2. Negotiation for Treaties and the Rules for Authentication of Treaties

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Persons only authorized to negotiate a treaty without a certificate of authority: * Chief of Diplomatic Missions (abroad), * Career officer of the Ministry of Foreign Affairs (only at home). If these persons need to make initials or sign a treaty after negotiations, they need a “certificate of authority”.

2. Negotiation for Treaties and The Rules for Authentication of Treaties (cont’d)

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- Negotiation of treaties and initialing or signing of the treaties are usually carried out through the Ministry of Foreign Affairs. - However, representatives of other relevant ministries or institutions can also perform this task, if the representatives of Ministry of Foreign Affairs are involved. For example: Representative of the Ministry of Communications.

2. Negotiation for Treaties and The Rules For Authentication of Treaties (cont’d)

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“A Certificate of authority” is, - Prepared by the Ministry of Foreign Affairs, - And signed by the President, Prime Minister and Foreign Minister. - Attached to the Council of Ministers Decree,

2. Negotiation for Treaties and The Rules For Authentication of Treaties (cont’d)

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- According to Article 104 of the Turkish Constitution, international treaties must be ratified by the President to become binding. - However, certain steps must be taken before ratification. * These steps are determined by the type of treaty involved. * Article 90 of the Constitution categorizes these treaties under two simple headings: a. Major Treaties (Art. 90/I); b. Minor Treaties (Art. 90/II,III).

3. Binding Process of Treaties

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The Constitution of the Republic of3. Binding Process of Treaties

D. Ratification of international treatiesARTICLE 90- The ratification of treaties concluded with foreign states and international on behalf of the Republic of Turkey shall be subject to adoption by the Grand National Assembly of Turkey by a law approving the ratification

Agreements regulating economic, commercial or technical relations, and covering a period of no more than one year, may be put into effect through promulgation, provided they do not entail any financial commitment by the State, and provided they do not interfere with the status of individuals or with the property rights of Turks abroad. In such cases, these agreements shall be brought to the knowledge of the Grand National Assembly of Turkey within two months of their promulgation.

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The Constitution of the Republic of3. Binding Process of Treaties

D. Ratification of international treatiesARTICLE 90- ....

Implementation agreements based on an international treaty, and economic, commercial, technical, or administrative agreements,which are concluded depending on the authorization as stated in the law, shall not require approval of the Grand National Assembly of Turkey. However, economic, commercial agreements or agreements relating to the rights of individuals concluded under the provision ofthis paragraph shall not be put into effect unless promulgated.

Agreements resulting in amendments to Turkish laws shall be subject to the provisions of the first paragraph.

...

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a. Major Treaties - As a rule, in order for ratification to take place, Parliament (Grand National Assembly of Turkey) must first approve the treaty by an act of law. * Approval process: - This process only involves a “yes” or “no” vote (open voting). No discussions or amendments are allowed. - After Parliament approval, the Treaty then goes to the President for endorsement (ratification). - After endorsement it is then published in the Official Gazette (promulgation).

3. Binding Process of Treaties (cont’d)

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a. Major Treaties * Approval process: - Once it is published, the Ministry of Foreign Affairs prepares a Decree for the Prime Minister to present to the Council of Ministers. - After the Council of Ministers Decree is approved and the entire Treaty (in both its original and Türkish version) is published in the Official Gazette, ratification is complete. In other words, it is published twice by the Official Gazette.


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b. Minor Treaties (Art. 90/II,III).- Parliamentary process is not necessary for all

treaties. Minor treaties are the exception.- With minor treaties, only a decree from the

Council of Ministers is required. - There are two categories of minor treaties: (1) Article 90/2 of the Constitution, (2) Article 90/3 of the Constitution.


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b. Minor Treaties (Art. 90/II,III).(1) Art. 90/2 of the Constitution


Agreements regulating economic, commercial or technical relations, and covering a period of no more than one year, may be put into effect through promulgation, provided they do not entail any financial commitment by the State, and provided they do not interfere with the status of individuals or with the property rights of Turks abroad. In such cases, these agreements shall be brought to the knowledge of the Grand National Assembly of Turkey within two months of their promulgation.

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b. Minor Treaties (Art. 90/II,III).(1) Art. 90/2 of the Constitution

- Those treaties regulate economic, commercial or technical relations. They

* do not last more than a year, * do not bring financial obligation to the

State, * do not infringe on status of individuals

or upon the property rights of Turkish citizens abroad and

* do not try to amend Turkish law.


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b. Minor Treaties (Art. 90/II,III). (2) Art. 90/3 of the Constitution


Implementation agreements based on an international treaty, and economic, commercial, technical, or administrative agreements,which are concluded depending on the authorization as stated in the law, shall not require approval of the Grand National Assembly of Turkey. However, economic, commercial agreements or agreements relating to the rights of individuals concluded under the provision of this paragraph shall not be put into effect unless promulgated.

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b. Minor Treaties (Art. 90/II,III). (2) Art. 90/3 of the Constitution

(a) Any act of law that gives the Council of Ministers the authority to sign treaties (without Parliamentary process) regarding economic, commercial, technical or administrative issues.

(b) Subsidiary treaties (agreement) that promote the goals of major teraties.


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b. Minor Treaties (Art. 90/II,III). (3) Act No. 244 has introduced a number of

new rules. Thus, the following treaties are also under the

authority of Council of Ministers: * Donation agreements. * Agreements for debt postponement or

trade agreements. * Bilateral and multilateral agreements with

NATO and the NATO member states based on the NATO Treaty


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b. Minor Treaties (Art. 90/II,III). Like the major treaties, the ratification process is completed when the Council of Ministers Decree is endorsed by the President’s signature.


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a. Rules of Domestic procedure - As previously stated, treaties (and it’s decree attachment) generally enter into force after its publication in the Official Gazette. - However, the Constitution states that some treaties can enter into force without publication. This refers to * Economic, commercial, technical and administrative agreements * Based on existing legislation, as well as agreements for implementation.

4. The Rules for Treaties to Enter into Force

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a. Rules of Domestic Procedure- The Council of Ministers may freely decide whether or not to publish the treaties in this group.

- However, commercial and economic agreements that pertain to the status of individuals, and the property rights of Turkish citizens abroad must be published.- Apart from the exceptions mentioned in the previous slide, the publication of the treaty is mandatory to come into force (the treaty should be published).

4. The Rules for Treaties to Enter into Force (cont’d)

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b. Rules for International Procedure - Endorsement of a treaty by the President does not automatically bind Turkey at the international level. - There must be an “exchange of ratification documents by the parties”. This is the key principle of the binding process.

4. The Rules for Treaties to Enter into Force (cont’d)

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Council of Ministers Decree

(No Text)

- Cons. Art. 90/2- Cons. Art. 104- Act. Nr. 244

The Legislative + The Executive

- Cons. Art. 90/1- Cons. Art. 104- Act. Nr. 244 - Cons.Art. 90/3

- Cons.Art.104- Act.Nr. 244

- No amendment to Acts

Implementation agreements

The Executive

agreements based on existing legis.

President

Official Gazette


(Text+Trans.)

President

Official Gazette


(Text+Trans.)

President

Information to TGNA in 2 monts


(Text+Trans.)

President

Official GazetteOnly com. and econ. agreements that pertain to the status of

individuals and the property rights

Turkish Law regarding the Ratification of International Treaties

Official Gazette

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TBMMUyun Bulma Kan.

(Metin Yok)

- AY Md. 90/2- AY Md. 104- 244 SK

Yasama +Yürütme- AY Md. 90/1- AY Md. 104- 244 SK

- AY Md. 90/3- AY Md. 104- 244 SK

- Kanunlara Değişiklik Getirmemeli

Uyg. And.

Yürütme

Yet. Kan. Day. And.

CB

RG

BK Kararnamesi(Metin+çeviri)

CB

RG

BK Karar.(Metin+çeviri)

CB

2 ay içindeTBMM’ye

bilgi

BK Karar.(Metin+çeviri)

CB

RGSadece ekonomik, ticari ve özel kişilerin hak. ile ilgili olanlar

Andlaşmaların Tapılmasında Türk Sistemi

RG

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