Principles of Public International Law Essay Example for Free

Principles of Public Inter peopleal Law EssayLaw will never really dramatic play an effective part in foreign relations until it stub annex to its own sphither roughly of the matters which at present lie within the domestic jurisdiction of the several put forwards. Discuss The principles and regulations accomplished in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognised. The aforementi unityd is a definition of rectitude as defined by the American Heritage dictionary of the English Language. If we apply this definition of community in its strictest sense it becomes increasingly operose to subscribe to the view that at that place is an foreign community at large. If we begin to analyse statistics that show that in that location be over 7000 languages in the humans, approximately 10,000 distinctly different religions, and a disputably infinite number of social groups across just the 195 countries that comprise our globular society, then it becomes patently clear that we would be better turned highlighting our divisiveness rather than our prospects as a global community.Our collective history as human beings, however, tells a different story ab forbidden our common interest and the way in which we get down formally embossed and torn down barriers to promote the same. We throw away, on the other hand, been separated on the fanny of differing ideologies and the exercise of pocket nationalism. Since the latter(prenominal) is a sentiment which resides in particular nations which maintain at their core a specialize statutory framework validating their very existence and their interaction with other nations, it is essential to any resume of virtues application to international relations.How does a self-directed nation reconcile its very reign with its growing need to be integrated into a lessen global society with its concomitant shrinking global economy? It is clear that some compromises must be made. Before we consider any special(prenominal) cases in which states have decided to relinquish some of their sovereign forcefulness, we must consider the implications of the term sovereignty itself, the elements of sovereignty and its importance to a nation-state. Much has been written on the topic of sovereignty.Definitions vary slightly from one text to the other moreover they all have at their core, when specifically referring to the estimation of state sovereignty, the idea of legitimate authority. In Sohail H. Hashmis intercourse on sovereignty in the book State Sovereignty, shift and Resistance in International Relations, he asserts, referring to the imagination of legitimate authority, that it is a broad concept not a definition but a wide category that unites most of sovereigntys tradition. He further notes that authority can be defined as The full to command and correlatively, the right to be obeyed and is only legiti mate when it is seen as right by those living beneath it. It is to be illustrious that legitimate authority is not simply the idea of more power. R. P. Wolf, the twentieth century political philosopher and one-on-one anarchist, illustrates the difference more sharply in a classical example in which he argues if I am forced at gunpoint to hand over my money, I am subject to power if I pay my taxes make up though I think I can cheat I am recognizing legitimate authority. We must recognize, however, that though legitimate authority is the overarching principle on any discourse on state sovereignty, there atomic number 18 specific elements of state sovereignty that atomic number 18 crucial, which every sovereign state holds dear to it and attempts to retain regardless of seemingly necessary or stipulated concessions of power, influence or authority to the international community. They include International Legal Validation (of a sovereign state), Interdependence Sovereignty and national Sovereignty. International Legal Validation can be viewed as the right of the state to be a sovereign entity as prescribed by international justice.It is legitimate authority as a level-headed construct or as Hashami puts it legitimate authority that is prescribed by the fairness. (Hashami, pg 18) The author Stephen D. Krasner in his book Sovereignty, Organised Hypocrisy describes this element of sovereignty as international well-grounded sovereignty. He states that it refers to the practices associated with common recognition, usually between territorial entities that have formal juridical independence. At its core international licit validation concerns issues of the recognition of states.If one were ignorant about the political climate on the global front, the born(p) 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 practice of law) for becoming a state. Following t his line of reasoning would of necessity lead one to the very first article of the Montevideo multitude 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) permanent population (b) a defined territory (c) government and (d) capacity to enter into relations with other states. It does not take some(prenominal) political savvy, however, to understand that the legal criteria for statehood and the actual 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 control over their claimed territory, such as the German and Italian recognition of the Franco politics 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 recogn ition of the Spanish republican political science of 1977, and recognition of the Chinese 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 clearly an bea 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 proved ineffective in international relations precisely because of the political agendas and consequently 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 point here is not that nonrecognition brings with it a form of absolute isolation which renders the unrecognised state permanently barred from international commerce and diplomatic 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 look of multinational firms which as a result may be more loath(p) to invest. Krasner notes that by facilitating accords, international legal sovereignty offers the possibility for rulers to secure external re tooth roots that can enhance their ability 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 tempt the flow of information, goods, ideas and people into and out of its country. States try to hold on to t his type of sovereignty because their ability to do this is directly related to their ability to effectively take control and organise their own polity, which in ticker is domestic sovereignty which states must hold on to by definition i. e. in order to be a state in the first place.We shall consider reasons which prompt states to relinquish some of their sovereignty afterward in our discussion. We have thus far acknowledged, via several examples, establish on the politics involved in the process 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 realm of international relations, the law can be voluntarily and regularly flouted by those who come under its subj ection 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 performances. there are a countless number of international treatises that are steadfastly observed on a day to day basis.Examples include international agreements which facilitate the smooth to and fro transport of letters which are transported to all corners of the globe at fixed rates which are stipulated by the Universal postal union, the introduction 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 right 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 role in international relations, that the hatful 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 break up of necessary self-coercion can be observed in a slightly different manner in the operations of international trade and commerce. Often times when two countries have a trade affray they seek to resolve it in the World Trade Organisation (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 respect or reverence for international law or the W.T. O. per se, but rather 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 contracting 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 long run since a nation that ha s the reputation of reneging on its commercial obligations will find it hard to conclude commercial treaties beneficially to itself. (Harris pg8) There is, evidently then, a law amongst nations, which is effective regardless of the reason for it being so. The problem 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 functional 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 nicety and an executive body to enforce 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 signing of treaties is usually undertaken and this serves as the source of law that is meant to dictate the terms of their agreement. However, unlike 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 evidence 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 problem of enforcement becomes acute, however, in that minority of outstanding 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 nat ions concerned. In those casesconsiderations of power rather than of law determine compliance and enforcement. (Harris, pg 9) Therein lies the difficulty in saying that there is a law of nations.Having established the problematic 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 look at that international law and municipal law are two separate legal orders and theorist who rely that they are part of the same legal order. The formative argument is known 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 i ntergovernmental 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, comparable 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 appeal 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 arbitration and other delegacy of alternative dispute resolution for the settlement of international commercial disputes. )To this end, each contracting party shall abide appropriate procedures to ensure observance of agreements to arbitrate 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 role 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 varying degrees.