Principles of Public International Law Essay

Law volition never really play an effective disclose in transnational dealings until it johnful annex to its deliver sphere nearly of the matters which at baffle lie indoors the domestic jurisdiction of the several conjure ups. Discuss The principles and regulations schematic in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognised. The same is a definition of faithfulness as defined by the Ameri stooge Heritage dictionary of the English Language.If we apply this definition of community in its strictest sense it becomes increasingly difficult to subscribe to the view that there is an world(prenominal) community at large. If we begin to analyse statistics that show that there be over 7000 languages in the world, approximately 10,000 distinctly different religions, and a disputably quad number of ethnic groups across just the 195 countries that comprise our global society, so it becomes pat ently clear that we would be better off highlighting our divisiveness instead than our prospects as a global community.Our collective history as piece beings, however, tells a different story close to our common interest and the means in which we break formally raised and torn down barriers to recruit the same. We get down, on the other hand, been paused on the basis of differing ideologies and the exercise of undivided nationalism. Since the latter is a sentiment which resides in particular nations which have at their core a set juristic framework validating their rattling existence and their interaction with other nations, it is essential to some(prenominal) study of impartialitys application to supranationalist relations.How does a monarch butterfly nation consort its truly sovereignty with its growing need to be integrated into a shrinking global society with its concomitant shrinking global thrift? It is clear that some compromises must be made. Before w e consider any specific cases in which put forwards have decided to relinquish some of their sovereign power, we must consider the implications of the term sovereignty itself, the elements of sovereignty and its brilliance to a nation- give tongue to. Much has been written on the topic of sovereignty.Definitions vary slightly from unmatchable text to the other but they all have at their core, when specifically referring to the idea of atomic number 18na sovereignty, the idea of licit authority. In Sohail H. Hashmis talk of on sovereignty in the book State Sovereignty, Change and bulwark in world-wide Relations, he asserts, referring to the concept of legitimate authority, that it is a broad concept non a definition but a wide category that unites closely of sovereigntys tradition. He moreover n wizards that authority can be defined as The expert to require and correlatively, the right to be obeyed and is only legitimate when it is seen as right by those living ch thonic it. It is to be noted that legitimate authority is not simply the idea of more power. R. P. Wolf, the twentieth century governmental philosopher and individual anarchist, illustrates the difference more sharply in a classical case in which he argues if I am forced at full stop to hand over my money, I am subject to power if I pay my taxes sluice though I think I can cheat I am recognizing legitimate authority. We must receipt, however, that though legitimate authority is the overarching principle on any discourse on state sovereignty, there be specific elements of state sovereignty that are crucial, which either sovereign state holds dear to it and attempts to retain regardless of seemingly demand or stipulated concessions of power, influence or authority to the transnational community. They include International Legal Validation (of a sovereign state), Interdependence Sovereignty and domestic help Sovereignty. International Legal Validation can be viewed as the r ight of the state to be a sovereign entity as prescribed by international police force.It is legitimate authority as a efficacious construct or as Hashami puts it legitimate authority that is prescribed by the law. (Hashami, pg 18) The author Stephen D. Krasner in his book Sovereignty, Organised Hypocrisy describes this element of sovereignty as international legitimate sovereignty. He states that it refers to the practices associated with mutual science, usually amongst territorial entities that have formal juridical independence. At its core international legal proof concerns issues of the course credit of states.If one were ignorant ab step forward the political climate on the global front, the natural answer to the question how did a state become a state? would be that the would-be state must satisfy the defined stipulations (in international law) for becoming a state. by-line this line of reasoning would inevitably lead one to the very set-back article of the capita l of Uruguay prescript on Rights and Duties of States, which since 1933 set out that The state, as a person of international law should possess the following qualifications (a) changeless population (b) a defined territory (c) government and (d) capacity to forecast into relations with other states. It does not take much political savvy, however, to make that the legal criteria for statehood and the tangible criteria for being recognized as a state by the international community at large is a de facto and de jure issue. As Krasner postulates States have recognized other governments even when they did not have suppress over their claimed territory, such(prenominal) as the German and Italian recognition of the Franco administration in 1936, and the American recognition of the Lon Nol government in Cambodia in 1970.States have continued to recognize governments which have lost power, including Mexican recognition of the Spanish republican regime of 1977, and recognition of the C hinese Nationalist regime by all of the major Western powers until the 1970s. States have refused to recognize new governments even when they have established effective control, such as the British refusal to recognize the July monarch in France until 1832, the US refusal to recognise the Soviet regime until 1934. (Krasner, pg 15) The recognition of states is definitely an area in which the law (as prescribed by the Montevideo Convention and more recently the EU, which has almost identical tenets concerning the recognition of states) has prove ineffective in international relations precisely because of the political agendas and accordingly domestic jurisdiction of the several states which reflect the political climate in which they operate.States attempt to hold on to this type of sovereignty because it affords them clout and validation in a global society in which interdependence is not just an ideal but a tool for survival, at the very least and a necessary aid to prosperity at the very most. The head teacher here is not that nonrecognition brings with it a form of absolute closing off which renders the unrecognised state permanently barred from international commerce and diplomatical relations.What is of paramount importance, however, is the fact that nonrecognition brings with it an air of uncertainty concerning the unrecognised state, particularly in the eyes of multinational firms which as a result may be more reluctant to invest. Krasner notes that by facilitating accords, international legal sovereignty offers the disaster for rulers to secure external resources that can enhance their power to stay in power and promote the security, economic, and ideational interest of their constituents. (Krasner, pg 17) Interdependence sovereignty is the ability of a state to regulate the flow of information, goods, ideas and people into and out of its coun prove. States try to hold on to this type of sovereignty because their ability to do this is right away re lated to their ability to effectively take control and organise their own polity, which in essence is domestic sovereignty which states must hold on to by definition i. e. in run to be a state in the first place.We shall consider reasons which prompt states to relinquish some of their sovereignty later in our discussion. We have thus far acknowledged, via several examples, base on the politics involved in the summons of mutual recognition of states, that the issue of international legal sovereignty or international legal validation is a de facto versus de jure consideration. Is this, however, a trend in the legal procedures in international relations? The law, based on our previously defined definition, must be applicable to the actors in the community in hich it is operating. If, in the ground of international relations, the law can be voluntarily and regularly flouted by those who come under its subjection then serious questions arise about the very existence of international law. It must be duly noted though that states undeniably operate within the workings of a law order which to a large extent regulates their day to day interactions with one another and which is autonomous in its doings. in that location are a countless number of international treatises that are steadfastly observed on a day to day basis.Examples include international agreements which facilitate the debonaire to and fro transport of letters which are transported to all corners of the globe at fix rates which are stipulated by the Universal postal union, the establishment of hundreds of football leagues worldwide- the individual countries who oversee them all subscribing to the specific rules and regulation set out by the world governing body in football, F. I. F. A. and the Vienna Convention on Diplomatic Relations which afford diplomats exemption from prosecution within the courts of the country in which they are stationed.It is evident then that there is a legal framework that regulates the goings on of international relations. We have to probe a bit deeper into the workings of this system in order to ascertain whether or not it can accurately be characterised as international law. It can be argued that upon examination of our above examples of situations in which law plays an effective share in international relations, that the circumstances demand that such broad and far-reaching legal action be undertaken. The methods may vary but in order for letters to be transported globally there must be some standardisation procedure.This sort of necessary self-coercion can be observed in a slightly different manner in the operations of international change and commerce. Often times when two countries have a trade dispute they seek to resolve it in the World Trade government (W. T. O. ), the foremost international authority on trade and trade disputes. The country that loses the dispute, in a legal case which is heard before a court of law under the auspices of the W. T. O. , more often that not abides by the decision. This, again, is not necessarily because the losing party has a great obligingness or reverence for international law or the W.T. O. per se, but sort of because it is within its interest to do so. As Harris explains, The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations concerned to honour their obligations under international law. (Harris pg 8) He further argues that a nation will be reluctant to disregard its obligations under a commercial treaty, since the benefits that it expects from the execution of the treaty by the other espial parties are complimentary to those anticipated by the latter.It may thus stand to loose more than it would gain by not fulfilling its part in the bargain. This is particularly so in the want run since a nation that has the reputation of reneging on its commercial obligations will find it hard to conclude commercial treaties beneficially to itself. (Harris pg8) There is, plain then, a law amongst nations, which is effective regardless of the reason for it being so. The task of defining this law amongst nations as international law, however, lies in part because of those very cases in which it is flagrantly disregarded.For any legal system to running(a) optimally it must operate in a community in which there is a legislative system to make laws as it sees fit, a judiciary to implement the administration of justice and an executive body to utilise the law. Now grant it, generally speaking, there is no formal legislative system in international relations, when countries enter into agreements with each other the sign of treaties is usually undertaken and this serves as the source of law that is meant to dictate the terms of their agreement. However, contrary what is the case in municipal law, there is no definite enforceability method.There is no one authority that can guarantee the compliance of states to international treaties or conventions. We have already made the point that in most cases compliance has become second nature but what of the cases (though they are scarce) in which it is not? Within the domestic law arena there are cases in which the law is glaringly broken. Once there is enough order to convict the wrongdoer, he is convicted and punished. The punitive measures that are undertaken would have been pre-determined by the legislative body and subsequently enforced by an executive body.There is no such arrangement in the international domain. As Harris puts forward The puzzle of enforcement becomes acute, however, in that tikeity of of the essence(p) and generally spectacular cases, particularly important in the context of our discussion, in which compliance with international law and its enforcement have a direct bearing on the relative power of the nations concerned. In those casesconsiderations of power rat her than of law determine compliance and enforcement. (Harris, pg 9) Therein lies the bother in saying that there is a law of nations.Having established the knotted nature of international law or a law of nations, we shall henceforth temporarily ignore our challenges with nomenclature for the purposes of our remaining discussion. That being said, it is of critical importance to analyse the impact of international law on municipal law and vice versa. There is an ongoing dispute between theorist who reckon that international law and municipal law are two separate legal orders and theorist who believe that they are part of the same legal order. The formative program line is cognise as dualism while the latter is known as monism.There is no one argument based on either monism or dualism that comprehensively settles the dispute. On the international plane, international law is invoked and applied on a daily basis by states and intergovernmental organisations. With minor exceptions, it is the only law that applies to the conduct of states and international organisations in their relations with one another. Here international law is a distinct legal system, corresponding in its scope and function to a national legal system. (Buergenthal-Murphy, pg 3)The point mentioned above is very valid and gives credence to the dualism argument. Diplomatic relations, as discussed earlier, are dealt with strictly on the international plane. In order to see the allurement of the monism argument however we have to look no further than the argument establishing the Caribbean Court of Justice (C. C. J. ). Article XXIII of this agreement is as follows 1)Each contracting party should, to the maximum extent possible, encourage and facilitate the use of arbitrement and other means of alternative dispute resolution for the settlement of international commercial disputes. )To this end, each contracting party shall provide appropriate procedures to mark observance of agreements to ar bitrate and for the recognition and enforcement of arbitral award in such disputes. The C. C. J. is a court whose aim is to have a determinative purpose in the further development of Caribbean jurisprudence through the juridical process is thus an international legal authority. In order for its smooth operation it must nevertheless depend on the domestic jurisdictions of its member states. Monism and dualism can hence be viewed as fluid concepts which exist in variable degrees.