Sources of International Law - Essay Example

Sources of International Law and the Extent of the Effect of International Treaties on the Development of International Business Law (Institution) (Course) (Tutor) (Date) Sources of International Law What is International Law? International law can loosely be described as the main principles and rules of general application that are meant to regulate the dealings and conduct of international organizations and States in their various international dealings and relations amongst themselves and with the various private individuals, transnational companies and minority groups that they happen to have dealings with (Schmitthoff and Cheng 1988). What is a State? States are generally characterized by the following main factors: 1. They have permanent populations within their borders. 2. States are endowed with the capacity to officially enter into various relations with other States. 3. They have internationally recognized and defined territories. 4. States have established forms of government governing them. Some writers are quick to suggest that for a State to be recognized as a State, it must be recognized as a legitimate State by other States as well as be fully independent (Yarwood 2011). States and International Law The international law system is viewed as being a generally horizontal system of law that is predominantly dominated by the various States which are all recognized by the international law as being both equal and sovereign. It is only the various States that are able to have sovereignty over the various territories that they are in control of. It is the responsibility of the various States to create and implement international law. It is only recognized States that can be able to join and thereafter become fully active members of the United Nations, as well as other established international organizations. It is also vital to point out that, it is only the various States that can be able to have access to the International Court of Justice. What are International Organizations International Organizations are basically establishments that are formed by the various States via the various international agreements that they enter into. The powers of these International Organizations are often limited to the ones that they were conferred with as seen in their various constituent documents. These organizations are free to enter into international agreements, and their various representatives have the benefit of being endowed with certain immunities and privileges. The Nationality of Companies and Private Individuals International law is not keen to recognize individuals as legal persons. The link that individuals have to State is normally facilitated by the concept of nationality. Nationality can broadly be defined as the status of being considered or treated as being a national of a particular State. Various States have different factors that they put into consideration in the determination of persons that qualify to be a national. The most common factors that are usually considered in the determination of whether an individual has acquired the nationality of a State include one being born in the State or having either one or both of the parents being a national of the State. Other methods via which persons are able to acquire the nationality of a State include naturalization and adoption (Schmitthoff and Cheng 1988). Space craft, ships, companies and aircraft are usually considered under international law as processing the innate nationality of the State within whose territory they are currently registered. This is a crucial since it is the parent State of a company that is given the responsibility of constantly ensuring that there is adequate regulation of its nationals especially in the event that its nationals are deemed to be carrying various activities outside the State’s territory. Under the legal principle of nationality of claims, if any of the nationals of a State A happens to get injured by a given State B through conduct that may be deemed as being internationally unlawful, State A is allowed to act on behalf of its injured national and make a legal claim against the given State B. This doctrine is referred to as the doctrine of diplomatic protection (Schmitthoff and Cheng 1988). Sources of International Law It is widely accepted that the main sources of international law are the ones listed in the Article 38(1) as found in the International Court of Justice (ICJ) Statute. This statute is keen to make provisions that will allow the court to apply the following as its main sources: 1. The various principles of law as recognized by civilized States and nations. 2. It shall also consider the various international conventions be they particular or general, establishing the various rules and regulations as they are recognized by each of the various contesting States. 3. The ICJ shall also consider as a source of international law the provisions that are set out in Article 59, these are the legal teachings of some of the most highly educated and qualified publicists and the best judicial decisions of the various nations. These are to be regarded as a subsidiary means that can be used in the determination of rules to be considered as international law. International custom as considered from the perspective of its use as evidence of a practice that is accepted as law and is in general practiced (Schaffer, Agusti and Earle 2009). General Principles of Law The International Court of Justice usually cites general principles of law as a third source of law. The principles are usually used when there is no clear customary law rule or treaty provision that is in existence. A good example of a general principle law is the universally accepted principles that when a person causes intentional harm to others, the said person should make reparation or pay compensation to the harmed parties (Schaffer, Agusti and Earle 2009). International Conventions (Treaties) International conventions are variously referred to as treaties. Treaties are defined as written agreements that have been set between certain States. These agreements are usually governed according to international law. Other terms that are usually used in reference to treaties include, protocols, conventions, agreements, covenants and exchanges of notes. Treaties can either be global, bilateral, regional or multilateral (Czinkota 2008). Treaties are often referred to by year and location of adoption, a good example of this is the 1969 Vienna Convention. The basic principles of treaty law are set out in the 1969 Vienna Convention which focuses on the Law of Treaties. The Convention establishes the procedures under which treaties can become legally binding and can therefore enter into force, the main principles that can be used in the interpretation of the treaties and the consequences that will result from a party breaching on a treaty. The main principles that underlies the law of treaties is pacta sunt servanda, this phrase is used to mean that every treaty in force is legally binding upon all the parties that entered into it and the treaty essentially has to be performed by the parties in good faith. The other important principle that is used in treaties is that only States parties are bound by treaties. Other third Party States are not bound to the said treaties unless on their own volition (Czinkota 2008). However it is sometimes possible for the provisions of an originally global, multilateral or even a regional treaty to end up becoming binding on all States and be considered as generally accepted rules of customary international law (Czinkota 2008). Subsidiary Means that can be used in the Determination of International Law Subsidiary means are generally not sources of law but they act as subsidiary evidence or means that can be used in proving the existence of a general principle of law or rule of custom. Article 38 of the international Court of Justice only States two subsidiary sources of International law. These two sources are the judicial rulings on matters concerning international law made by national or international tribunals and the writing or teachings that have been made by the most qualified of all international law scholars (van Hoof 1983). It should be noted that the resolutions that happen to be adopted at major international conferences or that are made by the UN General Assembly are not legally binding. In some instances that have not been made specific in article 38, these resolutions can be used as a means of determining custom (van Hoof 1983). If States are found to have acted in compliance with the terms of a given resolution that was adopted without the disapproval of any negative votes or the resolution happens to purport to declare a given set of legal principles that are to be used in governing a particular area and are worded in what is found to be norm creating language, then the resolution can be used as evidence of rules of custom (van Hoof 1983). The provisions of a Convention may become a very strong and important evidence of the rules of custom if the convention becomes universally accepted. However it should be put in mind that article 38 does not put into account that modern conventions happen to have a norm crating effect. International Customs as a Source of International Law Customary law or international custom is defined as a practice that is generally accepted as law as a result of its virtually uniform and constant usage by several States over a specific period. These rules are seen as being legally binding to all States. It is up to the nation State that is trying to allege the existence of a rule of customary law to prove that the law actually exists (Miller and Jentz 2011). The State can do this by showing that there exists a somewhat virtually uniform and consistent practice among various States including the States which happen to have a much greater interest in the matter at hand or just happen to be somewhat specially affected by the given rule (Miller and Jentz 2011). It is expected by the ICJ the allegation of customary practice by a State is to be done out of a sense of opinio juris as opposed to political or comity reasons. A good example of a common customary law is the granting of foreign diplomats in a given country criminal immunity (Miller and Jentz 2011). Treaties Affecting International Business Law Various international treaties have been formed that affect the way international business is conducted. These treaties are widely respected by most countries and have a profoundly large influence on the way international business operations are conducted. Examples include; The World Trade Organization (WTO) which plays the crucial role of defining practices that are internationally acceptable for its member nations. Even though the WTO happens not to have any direct dealings with individual firms, it provides a relatively predicable international environment for these firms (Czinkota 2008). The Patent Co-operation Treaty (PCT) is responsible for the provision of procedures that are to be used in filing patent applications. It harmonizes the application of patents both at the country and international levels whereby the filing of one international patent application is equivalent to filing applications at the national level in each of the countries where the patent is sought (Czinkota 2008). Some of the international organizations such as Organization for Economic Cooperation and Development as well as the international body The United Nations are seen to provide various multilateral agreements that eventually end up affecting international business. Some of these codes such as the UN Code of Conduct for Transnational Corporations are deemed as having a general scope while others such as the World Health Organization developed code on International Marketing of Breast-milk substitutes are seen to be very specific (Czinkota 2008). Several countries have also signed a number of bilateral treaties focusing on Friendship, Commerce, and Navigation (FCN). These treaties affect how the firms based in these countries happen to conduct business with each other (Czinkota 2008). Bibliography: Czinkota M., 2008. Fundamentals of international business. [S.l.] : Wessex Press. Miller L. R., Jentz A. G., 2011. Business law today : the essentials : text & summarized cases : e-commerce, legal, ethical, and international environment. Mason, OH : South-Western Cengage Learning. Schaffer R., Agusti F., and Earle B., 2009. International business law and its environment. Mason, OH : South-Western Cengage Learning. Schmitthoff M. C. and Cheng J., 1988. Clive M. Schmitthoffs select essays on international trade law. Dordrecht ; Boston : M. Nijhoff ; London : Graham & Trotman. van Hoof G J H., 1983. Rethinking the sources of international law. Deventer [usw.] Frankfurt a.M. : Kluwer Law and Taxation Publ. Yarwood L., 2011. State Accountability Under International Law: Holding States Accountable for a Breach of Jus Cogens Norms. Taylor & Francis. Read More