Halil Rahman Basaran | Istanbul Sabahattin Zaim University / İstanbul Sabahattin Zaim Üniversitesi (original) (raw)

Papers by Halil Rahman Basaran

San Diego International Law Journal, 2024

At present, there seem to be no prospects for the establishment of the protection of legitimate e... more At present, there seem to be no prospects for the establishment of the protection of legitimate expectations as a general principle of law under general international law. The institution of trust in international relations has still not come to the level where the establishment of such a general principle of law would be deemed natural. The production of a general principle of law requires a supportive position on the part of the international community. As of yet, there seems no indication or willingness on the part of the international community to declare the protection of legitimate expectations a general principle of law under general international law.

Indian Journal of International Law, 2022

International comity is the unacknowledged backbone of the international system. International co... more International comity is the unacknowledged backbone of the international system. International comity has returned to the forefront of the international system due to the 2022-2023 Russia-Ukraine war. Under international comity, Russia insists on the establishment and protection of her geographical sphere of influence in Ukraine, a position to which the West objects. There is no international institution which can transform this current dispute over a geographical sphere of influence in Europe into an institutional one. Dealing with spheres of influence requires us to further discuss the capabilities of international law to accommodate the sensibilities and the demands of the great powers. If international law continues to neglect the great power element in both its institutional and geographical dimensions, it may remain ineffective. Confining great power influence to the realm of international comity may continue to weaken the role of international law in the international system.

Liverpool Law Review, 2023

Public international law does not encompass external sovereign debt. In particular, the current s... more Public international law does not encompass external sovereign debt. In particular, the current status of 'odious debt', which may also be termed 'illegitimate debt', in international law epitomizes the weakness of international law with respect to external sovereign debt. Odious debt is subject to politics and ad hoc relations on the international stage. By and large, the law engages with external sovereign debt on the national level-e.g., via the national laws and the national courts of financial centers. In the event of a dispute regarding external sovereign debt, it is very rare that international law or international adjudication deal with external sovereign debt.

Hong Kong Law Journal , 2021

Good faith is insufficient in bringing about a multilateral public order. An international commun... more Good faith is insufficient in bringing about a multilateral public order. An international community that applies the principle of good faith effectively does not exist. Arguably, rather than a robust juridical mechanism, good faith represents common sense in international law. However, an effective and functioning multilateral public order needs more than that. This becomes all the more palpable in respect of issues such as external sovereign debt, where public international law is inchoate.

Czech Yearbook of Public & Private International Law, 2020

Sovereign wealth funds (SWFs) have proliferated in recent years and have become significant actor... more Sovereign wealth funds (SWFs) have proliferated in recent years and have become significant actors in international finance, investment and trade. However, the SWF is a matter for national law, not international law. This is a reflection of the principle of national sovereignty. Rather than public international law, national law regulates and supervises SWFs. The politicization of SWFs becomes all the more conspicuous due to the lethargy of public international law in the field. Therefore, every state is free to treat foreign SWFs as it sees fit. States are not obliged to treat foreign SWFs in the same manner. The only serious international legal initiative to regulate SWFs to date, the Santiago Principles, merely recommend some self-disciplinary measures for SWFs and the countries that have SWFs. They have still not transformed into binding public international law.

European Competition Law Review, 2006

Environmental benefits can only be an indirect result of exempted agreements under European Union... more Environmental benefits can only be an indirect result of exempted agreements under European Union Competition Law. In other words, they can only have the status of by-product, not a determinant factor in the framework of Article 81.

Transnational Law & Contemporary Problems, 2018

The struggle for facts and contexts continues in respect of the Cyprus Question.

Suffolk Transnational Law Review, 2017

The offset agreement demonstrates the preponderance of national security interests over internati... more The offset agreement demonstrates the preponderance of
national security interests over international law and represents
the weight and importance of national sovereignty. The widely
accepted and unchallenged secrecy surrounding offset agreements demonstrates the power of national public policy in international law.

International Trade Law & Regulation , 2016

International commercial arbitration (ICA) may be identified as a "dialogue". It integrates dispu... more International commercial arbitration (ICA) may be identified as a "dialogue". It integrates dispute settlement methods, arbitrators, national
judges and national laws into this dialogue. Thanks to universal expertocracy, ICA also has a universal dimension. Experts—namely arbitrators—put this dialogue into action. Owing to the difficulty
of qualifying ICA as a purely legal process, it helps to qualify it partially as a form of private diplomacy. Indeed, ICA reflects the culture of the public-private partnership on a global scale—it has both private
and public dimensions. This partnership is feasible thanks to the "reasonableness" inherent in ICA, an "arbitral reasonableness" that has its origins in the international business community, which requires a
high level of trust for the smooth functioning of international commercial transactions.

ILSA Journal of International & Comparative Law, 2015

International arbitration is a universal concept and a flexible institution transcending the publ... more International arbitration is a universal concept and a flexible institution
transcending the public law/private law divide. The purpose, the place and the secrecy of international arbitration, the function of arbitrators,
institutional commonality, the enforcement of arbitral decisions, the law to be applied in arbitration and the lack of binding precedent all point to the idea that international arbitration is a method of dispute settlement based upon common sense. Whomever the parties to and whatever the subjects of international arbitration may be, one cannot posit a definite or absolute differentiation between public and private international law arbitration. Indeed, arbitration's universality and flexibility are most visible in mixed arbitrations - such as the Iran-USA Arbitral Tribunal - where a high number of diverse disputes following a crisis push the limits of creativity in the founding and the functioning of international arbitration.

Houston Journal of International Law , 2014

The Responsibility to Protect is the acknowledgement by the international community of States tha... more The Responsibility to Protect is the acknowledgement by the international community of States that the current modes of international law cannot solve-let alone palliate-the question of mass atrocities. The Responsibility to Protect is a strong argument in favor of opposition groups. It influences institutions of intervention, recognition and diplomacy, and prompts us to conceptualize international law under a new theory. Whether the Responsibility to Protect will be transformed into a norm of international law is a moot question. Nevertheless, the Responsibility to Protect may find its place in the toolkit of opposition groups-the perennial underdogs of international law.

Mississippi College Law Review, 2014

Modern United Nations law does not answer the calls for the prevention and halting of humanitaria... more Modern United Nations law does not answer the calls for the prevention and halting of humanitarian crises. The concept of Responsibility to Protect is an important step in acknowledging this problem. It reconceptualizes violence on the international stage and attempts to establish a new balance between sovereignty and human rights. Nevertheless, it is a moot point as to whether the Responsibility to Protect represents a new ideology hiding new relations of domination in international politics or not. Only an anti-fragile and informal Responsibility to Protect would survive the complexity of international politics.

New York International Law Review, 2014

The Jurisdictional Immunities ruling of the International Court of Justice delineated the basic p... more The Jurisdictional Immunities ruling of the International Court of Justice delineated the basic parameters of State immunity: State immunity is a rule of international law - not a matter of comity. Both courts and governments are competent to decide issues of State immunity. State immunity is procedural in nature. Finally, the individual's right of access to justice is not a concern of the International Court of Justice when deciding the issue of State immunity.

International Journal of Public Law and Policy, 2011

This paper's focus is on a certain aspect of the Advisory Opinion: The consistency of the Interna... more This paper's focus is on a certain aspect of the Advisory Opinion:
The consistency of the International Court of Justice with regard to judicial propriety. Apart from the Eastern Carelia and the Legality of the Use by a State of Nuclear Weapons in Armed Conflict cases, the Court has always issued its opinion on request. The Court has, whatever the objections, opted for the issuance of opinions. It has consistently followed its own precedent of never finding an obstacle concerning
judicial propriety. In that regard, some indications about the term judicial
propriety have been given by some advisory opinions. Still, it is not exactly defined. In that connection, the paper engages in that definition and the argument is advanced that judicial propriety is a broad umbrella-concept.

The Fletcher Forum of World Affairs , 2014

The concept of "Responsibility to Protect" may not transform into law, in which case it would rem... more The concept of "Responsibility to Protect" may not transform into law, in which case it would remain merely an informal and subtle mechanism of monitoring and intervention. Thus, the Responsibilty to Protect might always exist as an ad hoc doctrine, identified in the framework of governmentality. Ultimately, the Responsibility to Protect purports to represent the “reason” of the international community in that it aims to realize a transition from an old practice of humanitarian intervention.

Marmara University Law Faculty Legal Research Journal, 2014

International arbitration is a concept of international law. It endorses the fragmentary nature o... more International arbitration is a concept of international law. It endorses the
fragmentary nature of international law and, as a reflection of informal
international law-making, represents a challenge in terms of rules of
recognition. Yet, none of these characteristics can be invoked to deny the contribution of international arbitration to international law. International arbitration is an institution inherent to international law, and one that both enhances and enriches international law.

Buffalo Human Rights Law Review, 2015

The cornerstone of international law in providing stability in international relations is the sov... more The cornerstone of international law in providing stability in international relations is the sovereign equality of States, and both the Responsiblity to Protect and the Landlocked States clash with this bedrock of international law. The challenge put to international law by the existence and persistence of these two concepts questions the fine line that delineates international politics and international law. The result is the disclosure of the fragility that exists within the fabric of international law.

The International Lawyer, 2013

The Interim Accord ruling of the International Court ofljustice is a renewed challenge from an in... more The Interim Accord ruling of the International Court ofljustice is a renewed challenge from an international court to international organizations. The Court pierced the veil ofNA TO and disregarded NATO's indispensable position. It implied that member-States could not avoid responsibility by hiding behind the corporate veil of an international organization. In the final analysis, this ruling constitutes a phase in the constructive process of international relations.

Gonzaga Journal of International Law, 2019

International law is often viewed by skeptics as unenforceable, incongruent, and lacking force. T... more International law is often viewed by skeptics as unenforceable, incongruent, and lacking force. This paper addresses those common misconceptions. The question of "what law governs" can be properly analyzed through the Yukos v. Russia dispute. By analyzing the dispute from its origins through the arbitral award to Yukos and the appeal presently pending before the Hague Court of Appeals, the dispute demonstrates the predominance and preeminence of governments in the functioning and enforcement of international law. Even when governments take on large, powerful, and resourceful private companies, powerful governments have a unique sway in international investment law and arbitration. Further, a provisional application clause in a treaty may lead to national interpretations by powerful states, in favor of the government over private entities.