Is International Law Good or Bad - Essay Example

The International law The article presents an account of a very influential judicial philosophy regarding international law. The book, Black stones public international law, established a new international statist paradigm that broke the classical partition of the law into three realities namely, people, things, and actions (Martin, 2007:60-62). This innovative prototype substituted the state of persons, downgraded the generic concept of ‘things’ to the obligations among nations in their relations, and transformed the spotlight of the concept of ‘action, to that of ‘war’ as a legal remedy for solving conflicts and disputes between and among nations. This paper will revolve around the international law. As defined in the article, international law refers to a body of legal rules, regulations, and acceptable practices by countries, international organizations, and people worldwide. It involves norms by which people interact with one another and with other citizens of different countries. Traditionally, the international law dealt with the conduct of states and international organizations (Kelsen, 2003:122). However, in the recent decades, individuals, transnational corporations, and non-governmental organizations are becoming increasingly active in global affairs, and their operations are too relevant to international law. The international law has two basic types, public and private international laws. As stated, public international law deals with relationships among nations or between a nation and an organization or people from different nations. One the other end, the private international law deals with disputes and conflicts between citizens from diverse countries or businesses form different nations (Aust, 2010:1-4). Presence of certain courts and bodies such as the United Nations Security Council facilitate the implementation of the activities of international law since they have the power to decide cases concerning the international law. Is international law good or bad? According to Slomanson, international law is good and essential to nations and individuals. This is because; international law provides bases of peace, harmony, and corporation. Therefore, individuals and nations are able to maintain relations in both local and international levels. The same way men and women could not co-exist peacefully in a society without laws to regulate their conduct the same way nations could not. In addition, international law is necessary since avails conventions used for regulating state conduct. It also impinges on state sovereignty by creating new structures vital for regulating cross border relations. International law forms limitations regarding the sovereignty of member states by establishing principles that control the global relations, which compete with the core realistic principles of sovereignty and anarchy (Slomanson, 2010:195). Since it is an agreement and tradition signed by the subscribed member states, its authority and control are strong. Relationship between international law and municipal law Municipal law and international law co-relate in the manner that, each has mandate over a particular area of jurisdiction. The national law regulates behaviors of individuals in a state while international law deals with behaviors of states and the external relations of the states’ foreign affairs. According to Black public international law, there is a divergence of opinion on the question as to whether international law and municipal law on the various national laws can be said to form a unity being a manifestation of a single conception of law or whether the IL constitutes an independent system of law essentially different from the municipal law. However, there is a difference with regard to the substance of the law between sovereign states in as much as municipal law governs individuals while international law controls the relationship among states whereby states arrive at it through signed agreement between them. Therefore, as regards competence, municipal law is a weak law. Monism and Dualism In international law, there are two theories, namely monistic and dualistic theories. With monism, when describing a subject related to global or national law, it is as if you are describing the same thing since are one and it. With reference to this view, law is essentially a command binding upon the subjects of the law independent of their will which is one case is the nations and in the other individuals (Shaw, 2003:121-123). According to monistic theory, international law and municipal law are two phases of the same thing. Although the former addresses states directly as corporate bodies, it is as well applicable to individuals for states are only groups of individuals. According to dualistic theory, the systems of international law and municipal law are separate and self-contained to the extent that, one system neither expressly nor tacitly receives rules from the other. In the first scenario, they differ as regards their sources. The sources of municipal law are customs grown-up within the boundaries of the state in subject and the statutes enacted therein (Shaw, 2003:133). On the other side, international law sources are customs grown-up within the family of nations and law making treaties concluded by subscribed members. In the second scenario, municipal laws control relations among individuals under the sway of a state or between individuals and the state whereas internal law governs relations between the member states of the family of nations. National law and international law obligations The international law has obligations or reasons as to why countries resulted to forming it. Legally, international law obligations comprise due to international law in conjunction with customary law and treaties. It has several articles that consist of different classes of treaties relating to activities mostly associated with national security (Kelsen, 2003:402-03). For instance, the Nuclear Non-Proliferation Treaty presents articles such as Article IV, which refers to the alienable right of all the member states to the treaty to develop research, production, as well as use of nuclear energy for peaceful purposes in conformity with Articles 1 and 2 of the treaty. Global law maintains that all member states must facilitate and have the authority to obtain exchanges of equipment and materials, scientific and technological related information for the peaceful uses of nuclear energy. In bases of human life, international law has obligation that provide rules regarding ways of dealing with human rights. Within international law, there are series of international human rights obligations, treaties, and other instruments adopted since 1945. Under these treaties, international law applies to international human rights both at the regional level and in global aspects. Its mandate is to protect and enhance respect by providing fundamental norms of human rights (Lauterpacht and Greenwood, 2005:79). In this case, by becoming a member state of the international law, a state vow to respect, protect, and carry out duties of international human rights law whose obligations and duties means to that states must refrain from interfering with or curtailing the enjoyment of the human basic human rights. The national law has many obligations as regards many departments of different arms of the state operations such as courts, transport, trade, education, and many others. For example, under the court, there are obligations provided by the national law that controls and regulates the activities of all courts within the boundaries of a nation. In this instance, it is upon the court in a country to ensure that the judicial authorities regulate all that goes on within the country. National law through courts is responsible for ensuring that citizens uphold, apply, and respect community law in the national legal system. According to the European journal of international law, every national court in the European Community is currently a Community law court. This means that, national judges have duty and obligation, in common with the European Court of Justice, for ensuring that citizens respect Community law in its application and interpretation of the Community Treaties (Greenwood, Lauterpacht and Oppenheimer, 2008:46). International law before municipal courts Matters regarding international law before municipal court appear complicated due to reasons related to the obligations of both laws. However, in spite of many functions carried out by municipal law within the sphere of international law, it is worth noting that one cannot apply municipal law in view of evading international law (Shaw, 2003:127). States receive the role of international law within the system of municipal law with rather a different approach. Under a general obligation, international law require states to act in conformity with its rules as failure to comply means that a state stands to bear responsibility and consequences for breaches of international law whether committed by the executive, legislative or judicial organs. Incorporation, transformation, and implementation In the United Kingdom, courts adopted certain approaches with regard to both global law and municipal law. Within these approaches are theories that explain the applicability of the rules of international law within the areas of jurisdiction. Among them is one expression of the positivist-dualist position that has transformation doctrine. With transformation, a perception of two distinct law systems and separately operating exist. They maintain that, prior any international law principle or rule can be effective within the domestic jurisdiction, that rule or principle must expressly and specifically ‘transform’ into municipal law. To do so, it requires the use of a suitable constitutional mechanism such as a Parliament Act (Dixon, 2007:95-97). It is therefore, a routine developed within British courts whereby international laws must receive ratification by the sovereign state law in order for it to be valid within the internal legal order. In addition, there is the doctrine of incorporation (Moore and Williams, 2011:192). It holds that, global law is automatically part of municipal law even without the necessity of interposition of a constitutional procedure of ratification. People know this theory best due to the eighteenth century lawyer Blackstone who declared, in his commentary, that wherever there is a question which is properly an object of its jurisdiction within a country adopts the will of that land. As a result, it becomes part of the law of the land. This theory or doctrine put across that different rules including the customary international law are applicable to treaties (Boas, 2012:136). Customary international law Within this sphere, the British adopted the doctrine of incorporation that has become their main approach. It is an old theory whose doctrine dates back to the eighteenth century due to its considerable prominence that discussed the precise extent of diplomatic immunity. The law of nations in its full capacity is part of the law of England. Priority granted to Parliament Act and tempered by the principle of precedent observed by the British courts ensured that the judgments of higher courts were binding upon the lower courts within the hierarchical system (Hammer, 2007:51-54). Accordingly, if it happens that the rule of international law runs in counter to a statute or decision by a higher court, no British court can implement it (Henckaerts and Beck, 2005:8). Series of cases in the nineteenth century by many writers disputed the validity of the hitherto and led to acceptance of transformation theory that resulted to adoption of customary international law to form part of the English law. Case- McLain Watson v Department of Trade and Industry The Court of Appeal clearly reaffirmed this case of dominant incorporation approach. This case concerned the consequences of the International Tin Council whereby its attempts rendered the member states liable for the debts incurred by unfortunate organizations. Nourse LJ in his emphasis proclaimed that the Trendtex case resolved the contention between transformation and incorporation doctrines in the favor of the latter. In the Tin Council litigation, there was one major point at issue that whether a law existed in the international law stipulating that member nations of an international organization with a separate personality could be liable for the organization’s debts (Henckaerts and Beck, 2005:93). As such, if a rule did exist, a question would arise as to how people could accept or manifest that rule of international law in the framework of municipal law. Implementation and Treaties As depicted, in international law there was no international rule that permitted action against member states in any national court. Therefore, it was not possible for England to enact such a law by itself due to the gap between an English court and the international law (Malone, 2008:33). As far as treaties exist, there are different rules within the areas of jurisdiction of these treaties. These treaties exist within those areas with very vital political and historical reasons. Customary law develops through state evolution whereas international conventions exist in form contracts binding the respective signatories. Some states may enforce customary law in a particular manner believing that it is in conformity with the international law depicting that the in normal conditions, the influence if that state is not usually decisive (Shelton, 2012:129). In such an instance, the nations concerned may resolve to sign a treaty whereby the newly created law binds the signatories regardless of their former contemporary practices. In short, the influence of a treaty executive has greater impact than customary law. The un-enacted treaties and the interpretation of statutes According to Black, in UK, only the Crown has the constitutional powers to sign a treaty with another state and courts cannot impugn this prerogative authority. Nevertheless, legislation can affect this prerogative power. In the sixth section of the European Parliamentary Elections Act 1978, for instance, European Parliament cannot ratify powers of any treaty without first getting approval of the UK’s Parliament. Thus, treaties cannot operate on themselves within the state, but need enabling statute passage. This means that, the Crown in Britain retains the precise to sign a treaty and ratify international agreements (Komori and Wellens, 2009:61-64). However, it is so unfortunate that the Crown is unable to legislate directly. In summary, the transformation and incorporation of the global law is relevant due to its effects and consequences. In interpretation of international treaties incorporated by statute made English courts adopt a broader approach compared to the customary law in statutory interpretation. They adopted a broad and purposive loom that interprets domestic legislation in view of making sure that is in compatibility with the Convention. With the course of interpreting domestic legislation in order to render it compatible by use the Convention rights, it is necessary for courts to account for any relevant jurisprudence from the European Court of Human Rights (Slomanson, 2010:595). In this case, the context of the case law of the European Communities demonstrates that fundamental human rights are integral and forms part of which the general principles of the European Court of Justice seeks to make certain. Bibliography Aust, A., 2010. Handbook of International Law. Cambridge: Cambridge University Press. Boas, G., 2012. Public International Law: Contemporary Principles and Perspectives. Cheltenham: Edward Elgar Publishing. Dixon, M., 2007. Textbook on international law. Oxford: Oxford University Press. Greenwood, C. J., Lauterpacht, E. and Oppenheimer, A.G., 2008. International Law Reports. Cambridge: Cambridge University Press. Hammer, L.M., 2007. 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M., 2003. International Law. Cambridge: Cambridge University Press. Shelton, D., 2012. International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion. Oxford: Oxford University Press. Slomanson, W. R., 2010. Fundamental Perspectives on International Law. Ohio: Cengage Learning. Read More