There is a fake e-mail going around that indicates the recipient has a NY traffic ticket in the town court in "Chatam".
The message is fake and the attachment contains a virus. So don't open it!
A couple of obvious indicators:
1. The town name is Chatham, not Chatam. There is a real Chatham Town Court. They had nothing to do with it so please don't bother them.
2. In NY at least, the police
Civil Law ? The Common Law Legal System
Civil law is the most dominant legal tradition today in most parts of the world. It is that branch of law which deals with individuals, and/or organizations in which compensation is rewarded to the victim. E.g. in a car accident, victim can claim damages against the driver for the loss or injury sustained in the accident. Going back to the history of civil law, common law follows an adversarial model while civil law is more inquisitorial. Civil law is code-based. It provides a forum or predefined set of rules for deciding disputes involving torts, probate of wills, property, administrative law, commercial law and private matters including government departments. The civil judge does not interpret the law but simply follow predetermined legal rules.
The objectives are different in civil law. There is an attempt to right a wrong, honor an agreement or settle a dispute. The victim gets compensation from the person who does the wrong. Every common law country has its own set of legal system that depicts on the rich history of civil law.
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Understanding civil law, one needs to know the history of its origin. As they say, “All roads lead to Rome”, civil law has also originated from the legal institutions of Rome. Its name derives from jus civile, the civil law of the Roman Republic and the Roman Empire. The jurists were people from upper classes of the Roman society who offered their legal knowledge as a public service. They advised parties to litigation, lay judiciary who presided over the trials and judged the facts of the case.
There were two types of civil judges: the magistrate and the judge for the trial. The jurists in Rome were nonprofessional and were not the government officers, hence they did not charged for their services. Thus, Roman law had an important influence on history of the world.
Civil law is usually referred to both the common law and law of equity which have historically operated to different doctrines.
Despite of the universal recognition of the distinction between the private law and public law in the civil law world, there is still no agreement among the civil law attorneys on its theoretical basis and no uniformity as to the scope of private and public law. Private law is that area of the law in which the sole function of government was the recognition and enforcement of private rights. Contrarily, public law is the effectuation of public interest by state action. Private law includes civil and commercial codes, while public includes constitutional law, administrative law and criminal law.
In a civil lawsuit, the plaintiff is responsible for the cost of litigation. Most civil law attorneys handle victim cases on a contingency basis which means the attorney fees is deducted from the final award.
Watch as Darren Pollard (Baby Blue Films) is confronted by two police officers claiming it is an offense to film an officer. They proceed straight into Civil Jurisdiction - obviously they have jumped the gun somewhat as no statute was cited nor existed.. not that any joinder had been created with a fictional corporate government employee MR DARREN POLLARD or variant thereof in the first place. Please time stamp your comments / total views to ensure we don't get censored or have the stats altered.
Related Civil Law Articles
Civil law is the most dominant legal tradition today in most parts of the world. It is that branch of law which deals with individuals, and/or organizations in which compensation is rewarded to the victim. E.g. in a car accident, victim can claim damages against the driver for the loss or injury sustained in the accident. Going back to the history of civil law, common law follows an adversarial model while civil law is more inquisitorial. Civil law is code-based. It provides a forum or predefined set of rules for deciding disputes involving torts, probate of wills, property, administrative law, commercial law and private matters including government departments. The civil judge does not interpret the law but simply follow predetermined legal rules.
The objectives are different in civil law. There is an attempt to right a wrong, honor an agreement or settle a dispute. The victim gets compensation from the person who does the wrong. Every common law country has its own set of legal system that depicts on the rich history of civil law.
]]>
Understanding civil law, one needs to know the history of its origin. As they say, “All roads lead to Rome”, civil law has also originated from the legal institutions of Rome. Its name derives from jus civile, the civil law of the Roman Republic and the Roman Empire. The jurists were people from upper classes of the Roman society who offered their legal knowledge as a public service. They advised parties to litigation, lay judiciary who presided over the trials and judged the facts of the case.
There were two types of civil judges: the magistrate and the judge for the trial. The jurists in Rome were nonprofessional and were not the government officers, hence they did not charged for their services. Thus, Roman law had an important influence on history of the world.
Civil law is usually referred to both the common law and law of equity which have historically operated to different doctrines.
Despite of the universal recognition of the distinction between the private law and public law in the civil law world, there is still no agreement among the civil law attorneys on its theoretical basis and no uniformity as to the scope of private and public law. Private law is that area of the law in which the sole function of government was the recognition and enforcement of private rights. Contrarily, public law is the effectuation of public interest by state action. Private law includes civil and commercial codes, while public includes constitutional law, administrative law and criminal law.
In a civil lawsuit, the plaintiff is responsible for the cost of litigation. Most civil law attorneys handle victim cases on a contingency basis which means the attorney fees is deducted from the final award.
Catanese & Wells california law firm has several practice groups like Equine Law,horse law,litigation lawyer and business lawyer.Looking for litigation attorney, litigation lawyer, business litigation attorney.
Watch as Darren Pollard (Baby Blue Films) is confronted by two police officers claiming it is an offense to film an officer. They proceed straight into Civil Jurisdiction - obviously they have jumped the gun somewhat as no statute was cited nor existed.. not that any joinder had been created with a fictional corporate government employee MR DARREN POLLARD or variant thereof in the first place. Please time stamp your comments / total views to ensure we don't get censored or have the stats altered.
Related Civil Law Articles
International Law And Municipal Law: The Interface
It is the nature of man to live in communities. He lives in this fashion in every part of the world today, and the evidence of history and pre-history shows how long he has been doing so. But then it must be noted that where people live together conflict is bound to arise due to various conflicting interests among the people. Also, bearing in mind that everybody tries to work hard, obtains basic needs and all other things which help to make life happy and comfortable which are incidentally in short supply, since the supply is always in short in proportion to the demand, competition for them sets in. It is a race in which we all engage, and in every race or game there must be rules and regulations. Else, we are moving towards the ‘state of nature' as enunciated by Hobbes. Therefore, the existence of rules and regulations (law) becomes a sine qua non to the peaceful co-existence of people and nations all over the world.
This chapter therefore, attempts a critical examination of International and Municipal laws. The chapter is divided into three parts. Part one which is the introduction provides theoretical background for the work. In it, clarifications of some concepts that are germane to the study are done. It also looks briefly at purposes and characteristics of law. Part two compares vividly international law and municipal law looking at the debate on the relationship between the two using the contending theories. Part three, which is the concluding aspect, presents a complementary nature of international law and municipal law, thereby viewing both laws as real, irrespective of their peculiarities.
Since conceptual clarification is a form of intellectual ritual that gives clarity and validity to any discussion, it is therefore necessary to explain concepts that are germane to this study for the purpose of deeper understanding.
There have been various definitions of law by different scholars across the global intellectual communities. These definitions exist, ranging from the philosophical to the practical, Plato called law social control; William Blackstone (1977) sees law as rule, specifying what was right and what was wrong. For the purpose of this study, law is viewed as a body of rules that establish a certain level of social conduct, or duties that members of the society honour (Davidson, 1998:3).
Law simply means an arrangement that coordinates and confines people's behaviours to conform to an agreed general ways of human conduct in a given society, with a threat of sanctions against defiant behaviours. Inferred from the above definitions is the need to obey the law. This is because disobedience may attract sanctions that may result in imprisonment, fine or death, depending on the nature of offence. Law may also be defined as a body of rules or regulations governing the conduct of human beings in their social regulations.
Municipal law is the internal law of the state, binding on the citizens of the state. It is defined as the domestic law of a state regulating the conduct of individuals and legal entities within it (Aguda, 1999). It is national or internal law of a state. Shaw sees municipal law as law that governs the domestic aspects of government and deals with issues between individuals and the administrative apparatus (Shaw, 1997:105).
It is an indisputable fact that international law is a victim of definitional pluralism; this is because many scholarly definitions have been given to it by various scholars of repute from different perspectives. Some of these definitions will be explored for the purpose of this study.
Khan et al (1968) defines it as a ‘body of rules, laws, and norms, which serves to limit the sovereignty of state in the international society. Oppenheim (1995) sees it as the ‘body of customary and treaty rules which are considered legally binding by states, in their intercourse with each other.' Jessup (1968) presents it as the body of laws, which is applicable to states in their relations and to individuals in their relations to other states. In the same vein, Kolawole (1997, 278) defines international law or what he calls the ‘law of nations' as the body of rules and principles of action which are binding upon civilised states in their relations with one another. International law is the law at the international level made by the collective will of states and to lesser degree organisation and individuals (Shaw, 1997, 105). In essence, international law is a body of generally accepted principles and rules regulating or controlling the conduct of states, individuals and international organisations for the purpose of peaceful coexistence in the international plane.
The scope of international law can be categorised into six broad items, namely: one, the law of peace, which seeks the peaceful settlement of international disputes. Two, the law of war, since conflict is an inevitable outcome of human and states relations, conducts of hostilities, must conform with laid-down regulations in terms of types of military wares and ammunition to be used, and stages of their utilisation, targets and non targets of attack, areas of combat, treatment of civilians, journalists and prisoners of war and refuges; and the duties of humanitarian agencies such as the Red-Cross otherwise called ‘doctor without borders'. Three, the law of neutrality, international law forbids aggression on neutral states in war. It also spells out reciprocal responsibilities for neutral states. Law forbids them to render any form of assistance whatever military or civil to any of the parties engaged in hostility. Four, mercantile laws, which relate to regulations on international trade, foreign investment and multi-lateral trade agreements by states.
Five, is the law of the sea. The sea is very vital to the world economy as it provides varied marine food and mineral resources. It serves as a means of international transportation, and it serves as strategic resource for national defence. For these reasons, nations have fought wars over marine resources. Consequently, activities of states in the sea need to be regulated in order to present inter-state disputes. Six, convention on the use of outer spaces. The law regulates the exploration and launching of objects into outer space (Ajayi, 2000).
The inherent nature of human beings is their unpredictability in terms of behavioural conduct. States, groups and international organisations, like individuals who constitute membership of these social formations, suffer from this innate problem. Therefore, for law to really serve its purposes, a competent and constituted body that has recognised authority must make such law. It must also be ultimately enforceable; any law that cannot be enforced is no law. It must also be dynamic because society in which it operates is dynamic. Law should also be consensual. International law is one of consensus rather than one of force. Even in the national society laws are only laws when one consents to it. It might be out of fear of reprisal or coercion.
]]>
Law generally serves the following purposes in any society. Law regulates conduct, maintains peace, and provides protection and means of achieving justice.
Specifically, law serves as a tool of order; as a tool order, it promotes order within the national and international society. There is no denying the fact that a comprehensive set of rules, regulations, obligations, rights, legal doctrines and decisions of national and international tribunals on legal matters does help to promote international order. Law regulates the behaviour of the citizenry. Without law, society would have been disorganised and become ungovernable (Kolawole, 1997).
A scholar have identified the functions of international law, which include minimising frictions between and among states, stabilising the behaviour of states, facilitating cooperation between and among states, protecting individuals, settling disputes and serving as a tool of public relations and propaganda (Adeniran, 1983).
International law also serves as an instrument of national policy. It contributes to a nation's means of attaining its objectives in foreign policy. It also serves as integrative force, in the world community, since no state can live in isolation, it atomised the entire states and people of the world into one whole as they are all subjects of the law without prejudice to race, colour or class (Ajayi, 2000).
The relationship between international law and municipal law is full of theoretical problems. The international legal literature on the subject records two main principal theories involved in the debate. But it is to be noted that this part does not necessarily distinguish or differentiate international law from municipal law or give one primacy over the other, but rather, justifies the existence of both laws as laws in the real sense of it. Although, some of the arguments put forward by different schools of thought to explain the relationship between the two laws will be explored for theoretical explanation and academic consumption.
The dualist or pluralist school of thought assumes that international law and municipal law are two separate legal systems, which exist independently of each other (Malanczuk, 1997, 63-71). Dualism stresses that the rules of the systems of international and municipal laws exist separately and cannot purport to have effect on, or overrule the other. This according to the school is because of the fundamentally different legal structureemployed on one hand by the state, and on the other hand as between states (Malanczuk, 1997).
The dualist position is accepted by the posivists like Triepel and Anzillot. Triepel maintains that international law must be incorporated into the municipal law, because the subject of state is the individual whereas the subject of international law is abstract entity known as the state. Since subjects are not the same, there has to be a transformation from one to the other, i.e. international law has to be transformed into the state law before it can be applied to individuals. This process is also called ‘Transformation theory'. The claim of Triepel as regards state as only subject of international law can no longer be sacrosanct due to dynamism in law. In the contemporary international law, individuals are seen as subject but with limited capacity.
The 1945 Nuremberg Trial made individuals subject of international law; there was also Angola Trial, etc. Anzilloti (1967) talks of the conditioning of the two laws. In his opinionated view, state laws are imperatival and hence it has to be obeyed, whereas international law is in the nature of promises; it is therefore necessary to transform a promise into command before it becomes applicable in the municipal law. The position also is not sacrosanct, in the sense that law is not necessarily command, people obey the law when they consent to it and often times people obey because of the possible gains that can be acquired.
The second school of thought known as Monist, has a unitary perception of the law and understands both international law and municipal law as forming part of one and the same legal order. The most radical version of the Monist approach was formulated by Kelsen, in his view, ‘the ultimate source of validity of all law', is derived from a basic rule of international law.
Kelsen theory implies that all rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic spheres of state. Kelsen's view was on formalistic logical grounds. They opposed strict division of the two laws as demonstrated by the dualists and accept the unitary view of law as a whole. Kelsen utilises the philosophy of Kant as its basis.
Law is regarded as constituting an order which lays down patterns of behaviour that ought to be followed, coupled with the provision for sanctions, which are employed once an illegal act or course of conduct has occurred or been embarked upon. Since the same definition implies both within internal sphere and international sphere, a logical unity is forged. Since states own their legal relationship to the roles of international law, and since states cannot be equal before the law without a rule to that effect, it follows that international law is superior to or more basic than municipal law.
Kelsen emphasises the unity of the entire legal order upon the basis of the predominance of international law by declaring that it is the basic norm of the international legal order, which is the ultimate reason of validity of the national legal orders too (Kelsen, 1997).
Lauterpacht in his contribution uphold a strong ethical position with deep concern for human right. He sees the primary function of law as concerned with the well-being of individuals and advocates the supremacy of international law as the best method of attaining this.
Interestingly, Article 27 of the Vienna Convention on the law of treaties states that: a party may not invoke the provisions of its internal laws as justification for its failure to carry out an international agreement. However, expression on the supremacy on the international law over municipal law in international tribunals does not mean that the provisions of domestic legislation are either irrelevant or necessary. On the contrary, the role of international legal rules is vital to the working of the international legal machine.
One of the ways that is possible to understand and discover a state's legal position on a variety of topic important to international law is by examining the municipal laws. A country will express its opinion on such vital international matter at the extent of its territorial sea or the justification it claims or the conditions for the acquisition of nationality through the medium of its domestic law making. Thus, it is quite often that in the course of deciding a case before it, an international court will feel the necessity to make a study of relevant pieces of municipal legislation. The rules of municipal law can be utilised as evidences of compliance or non-compliance with international obligations (Shaw, 1997).
International law does not entirely ignore municipal law. For example, municipal law may be used as evidence of international custom or of general principles of law, which are both sources of international law. Moreover, international law leaves certain questions to be decided by the municipal law (Akhurst, 1977).
Harmonisation theory succinctly provides an answer to the true relationship of the two laws by asserting that:
The starting point in the legal order is that man lives not in one jurisdiction, but in both. International law and municipal law are concordant bodies of doctrine, autonomous but harmonious in their aim of basic human good. When faced with an actual problem, a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law, or vice-versa (Aguda, 1993: 32).
A treaty or other rule of international law imposes an obligation on states to enact a particular rule as part of their own municipal law. Similarly, there is a general duty for states to bring domestic law into conformity with obligation under international law either through transformation, incorporation, adoption or reception, e.g. treaties ratified in accordance with the constitution automatically become part of the municipal law of the USA. In Britain, the traditional rule is that customary international law automatically forms part of English law (Akhurst, 1977).
In a case before a municipal court, a rule of international law may be brought forward as a defence to a charge. For example, a vessel may be prosecuted for being in what the domestic terms is regarded as territorial waters, but in international law, it would be treated as part of the high seas.
Okeke (1986:6) puts it in this manner:
…as states grow in their international outlook, and as they participate in either the creation of new rules of international law or in the re-definition of the already existing ones, it must be borne in mind that the world is now advancing on the principle of interdependence and mutual cooperation. The age of holding tenaciously to the principle of absolute sovereignty is far gone. Indeed, a state by taking laws to be in conformity with international law is a legitimate exercise of the sovereignty of such a state.
Okeke's position stresses the dynamism in law and the society, when the law operates and the need for global intercourse of nation for global benefits; and such interaction must be regulated with law both at national and international levels so as to have peaceful and ordered world.
Okeke in his analysis cited a section each from the constitution of Germany and the United States of America to affirm the interconnectedness of international and municipal laws. The constitution of the Federal Republic of Germany provides:
The general rules of public international law are an integral
part of the federal law. They shall take precedence over the
laws and shall directly create rights and duties for the inhabitants
of the federal territory (Okeke, 1986).
In the same manner, the American constitution also provides:
The constitution and the laws of the United States, which shall
be made in pursuance thereof, and all treaties made, or which
shall be the supreme law of the land, and the judges in every state
shall be bound thereby, and everything in the constitution or laws
of any state to the contrary notwithstanding.
In addition, the rule of the municipal law can be utilised as evidences of compliance or non-compliance with international obligations, e.g. the issue of respect of fundamental human rights. Though, in some countries the law will sometimes fail to reflect the correct rule of international law, but this does not necessarily mean that states will be breaking international law.
From the submissions above, ranging from definitions of law, characteristics and purposes to relationship and complimentary nature of municipal law and international law, it is clear that both laws possess the qualities of law and all that takes to be called laws. They serve the same purposes and perform functions of law because they are meant to regulate conduct, maintain peace, provide protection, achieve justice, etc. They are both enforceable; they have different mechanisms of enforcement and agencies. They are both dynamic in nature, they are made by competent and recognised authority, etc. As a matter of fact, both laws have been able to work towards achieving well ordered societies, which is the ultimate goal of any law. Therefore, international law and municipal laws are reallaws.
Adeniran, T. 1983 Introduction to International Relations. Ibadan, Macmillan Nigeria Ltd.
Aguda, A. (ed.) 1999 Introduction to International Law. Ibadan, Spectrum Law Publishing.
Ajayi, K. 2000 International Administration and Economic Relations in a Changing World. Ilorin, Maaba Publisher.
Akehurst, M. 1977 A Modern Approach to International Law. London, George Allen Publishing Ltd.
Anzilloti, T. 1967 International Law and State. England, Oxford Press.
Davidson, K. and M. Forsythe 1998 Business Law. USA, West Educational Publishing Limited.
Jessup, P. 1968 A Modern Law of Nations. Handen Conn, Archan Books.
Kelsen, J. 1997 International Law. Edinburgh, Rose Publishing Ltd.
Kolawole, D. 1997 Reading in Political Science. Ibadan, Dekaal Publishing Ltd.
Malanczuk, P. 1997 Akehurst's Modern Introduction to International Law. Padstow Con Wall, TJ International Ltd.
Okeke, C. 1986 Theory and Practice of International Law in Nigeria. Forth Dimension Ltd.
Oppenheim, O. 1995 International Law. London, Longman.
Shaw, N. 1997 International Law. UK, Cambridge University Press.
Related International Law Articles
It is the nature of man to live in communities. He lives in this fashion in every part of the world today, and the evidence of history and pre-history shows how long he has been doing so. But then it must be noted that where people live together conflict is bound to arise due to various conflicting interests among the people. Also, bearing in mind that everybody tries to work hard, obtains basic needs and all other things which help to make life happy and comfortable which are incidentally in short supply, since the supply is always in short in proportion to the demand, competition for them sets in. It is a race in which we all engage, and in every race or game there must be rules and regulations. Else, we are moving towards the ‘state of nature' as enunciated by Hobbes. Therefore, the existence of rules and regulations (law) becomes a sine qua non to the peaceful co-existence of people and nations all over the world.
This chapter therefore, attempts a critical examination of International and Municipal laws. The chapter is divided into three parts. Part one which is the introduction provides theoretical background for the work. In it, clarifications of some concepts that are germane to the study are done. It also looks briefly at purposes and characteristics of law. Part two compares vividly international law and municipal law looking at the debate on the relationship between the two using the contending theories. Part three, which is the concluding aspect, presents a complementary nature of international law and municipal law, thereby viewing both laws as real, irrespective of their peculiarities.
Since conceptual clarification is a form of intellectual ritual that gives clarity and validity to any discussion, it is therefore necessary to explain concepts that are germane to this study for the purpose of deeper understanding.
There have been various definitions of law by different scholars across the global intellectual communities. These definitions exist, ranging from the philosophical to the practical, Plato called law social control; William Blackstone (1977) sees law as rule, specifying what was right and what was wrong. For the purpose of this study, law is viewed as a body of rules that establish a certain level of social conduct, or duties that members of the society honour (Davidson, 1998:3).
Law simply means an arrangement that coordinates and confines people's behaviours to conform to an agreed general ways of human conduct in a given society, with a threat of sanctions against defiant behaviours. Inferred from the above definitions is the need to obey the law. This is because disobedience may attract sanctions that may result in imprisonment, fine or death, depending on the nature of offence. Law may also be defined as a body of rules or regulations governing the conduct of human beings in their social regulations.
Municipal law is the internal law of the state, binding on the citizens of the state. It is defined as the domestic law of a state regulating the conduct of individuals and legal entities within it (Aguda, 1999). It is national or internal law of a state. Shaw sees municipal law as law that governs the domestic aspects of government and deals with issues between individuals and the administrative apparatus (Shaw, 1997:105).
It is an indisputable fact that international law is a victim of definitional pluralism; this is because many scholarly definitions have been given to it by various scholars of repute from different perspectives. Some of these definitions will be explored for the purpose of this study.
Khan et al (1968) defines it as a ‘body of rules, laws, and norms, which serves to limit the sovereignty of state in the international society. Oppenheim (1995) sees it as the ‘body of customary and treaty rules which are considered legally binding by states, in their intercourse with each other.' Jessup (1968) presents it as the body of laws, which is applicable to states in their relations and to individuals in their relations to other states. In the same vein, Kolawole (1997, 278) defines international law or what he calls the ‘law of nations' as the body of rules and principles of action which are binding upon civilised states in their relations with one another. International law is the law at the international level made by the collective will of states and to lesser degree organisation and individuals (Shaw, 1997, 105). In essence, international law is a body of generally accepted principles and rules regulating or controlling the conduct of states, individuals and international organisations for the purpose of peaceful coexistence in the international plane.
The scope of international law can be categorised into six broad items, namely: one, the law of peace, which seeks the peaceful settlement of international disputes. Two, the law of war, since conflict is an inevitable outcome of human and states relations, conducts of hostilities, must conform with laid-down regulations in terms of types of military wares and ammunition to be used, and stages of their utilisation, targets and non targets of attack, areas of combat, treatment of civilians, journalists and prisoners of war and refuges; and the duties of humanitarian agencies such as the Red-Cross otherwise called ‘doctor without borders'. Three, the law of neutrality, international law forbids aggression on neutral states in war. It also spells out reciprocal responsibilities for neutral states. Law forbids them to render any form of assistance whatever military or civil to any of the parties engaged in hostility. Four, mercantile laws, which relate to regulations on international trade, foreign investment and multi-lateral trade agreements by states.
Five, is the law of the sea. The sea is very vital to the world economy as it provides varied marine food and mineral resources. It serves as a means of international transportation, and it serves as strategic resource for national defence. For these reasons, nations have fought wars over marine resources. Consequently, activities of states in the sea need to be regulated in order to present inter-state disputes. Six, convention on the use of outer spaces. The law regulates the exploration and launching of objects into outer space (Ajayi, 2000).
The inherent nature of human beings is their unpredictability in terms of behavioural conduct. States, groups and international organisations, like individuals who constitute membership of these social formations, suffer from this innate problem. Therefore, for law to really serve its purposes, a competent and constituted body that has recognised authority must make such law. It must also be ultimately enforceable; any law that cannot be enforced is no law. It must also be dynamic because society in which it operates is dynamic. Law should also be consensual. International law is one of consensus rather than one of force. Even in the national society laws are only laws when one consents to it. It might be out of fear of reprisal or coercion.
]]>
Law generally serves the following purposes in any society. Law regulates conduct, maintains peace, and provides protection and means of achieving justice.
Specifically, law serves as a tool of order; as a tool order, it promotes order within the national and international society. There is no denying the fact that a comprehensive set of rules, regulations, obligations, rights, legal doctrines and decisions of national and international tribunals on legal matters does help to promote international order. Law regulates the behaviour of the citizenry. Without law, society would have been disorganised and become ungovernable (Kolawole, 1997).
A scholar have identified the functions of international law, which include minimising frictions between and among states, stabilising the behaviour of states, facilitating cooperation between and among states, protecting individuals, settling disputes and serving as a tool of public relations and propaganda (Adeniran, 1983).
International law also serves as an instrument of national policy. It contributes to a nation's means of attaining its objectives in foreign policy. It also serves as integrative force, in the world community, since no state can live in isolation, it atomised the entire states and people of the world into one whole as they are all subjects of the law without prejudice to race, colour or class (Ajayi, 2000).
The relationship between international law and municipal law is full of theoretical problems. The international legal literature on the subject records two main principal theories involved in the debate. But it is to be noted that this part does not necessarily distinguish or differentiate international law from municipal law or give one primacy over the other, but rather, justifies the existence of both laws as laws in the real sense of it. Although, some of the arguments put forward by different schools of thought to explain the relationship between the two laws will be explored for theoretical explanation and academic consumption.
The dualist or pluralist school of thought assumes that international law and municipal law are two separate legal systems, which exist independently of each other (Malanczuk, 1997, 63-71). Dualism stresses that the rules of the systems of international and municipal laws exist separately and cannot purport to have effect on, or overrule the other. This according to the school is because of the fundamentally different legal structureemployed on one hand by the state, and on the other hand as between states (Malanczuk, 1997).
The dualist position is accepted by the posivists like Triepel and Anzillot. Triepel maintains that international law must be incorporated into the municipal law, because the subject of state is the individual whereas the subject of international law is abstract entity known as the state. Since subjects are not the same, there has to be a transformation from one to the other, i.e. international law has to be transformed into the state law before it can be applied to individuals. This process is also called ‘Transformation theory'. The claim of Triepel as regards state as only subject of international law can no longer be sacrosanct due to dynamism in law. In the contemporary international law, individuals are seen as subject but with limited capacity.
The 1945 Nuremberg Trial made individuals subject of international law; there was also Angola Trial, etc. Anzilloti (1967) talks of the conditioning of the two laws. In his opinionated view, state laws are imperatival and hence it has to be obeyed, whereas international law is in the nature of promises; it is therefore necessary to transform a promise into command before it becomes applicable in the municipal law. The position also is not sacrosanct, in the sense that law is not necessarily command, people obey the law when they consent to it and often times people obey because of the possible gains that can be acquired.
The second school of thought known as Monist, has a unitary perception of the law and understands both international law and municipal law as forming part of one and the same legal order. The most radical version of the Monist approach was formulated by Kelsen, in his view, ‘the ultimate source of validity of all law', is derived from a basic rule of international law.
Kelsen theory implies that all rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic spheres of state. Kelsen's view was on formalistic logical grounds. They opposed strict division of the two laws as demonstrated by the dualists and accept the unitary view of law as a whole. Kelsen utilises the philosophy of Kant as its basis.
Law is regarded as constituting an order which lays down patterns of behaviour that ought to be followed, coupled with the provision for sanctions, which are employed once an illegal act or course of conduct has occurred or been embarked upon. Since the same definition implies both within internal sphere and international sphere, a logical unity is forged. Since states own their legal relationship to the roles of international law, and since states cannot be equal before the law without a rule to that effect, it follows that international law is superior to or more basic than municipal law.
Kelsen emphasises the unity of the entire legal order upon the basis of the predominance of international law by declaring that it is the basic norm of the international legal order, which is the ultimate reason of validity of the national legal orders too (Kelsen, 1997).
Lauterpacht in his contribution uphold a strong ethical position with deep concern for human right. He sees the primary function of law as concerned with the well-being of individuals and advocates the supremacy of international law as the best method of attaining this.
Interestingly, Article 27 of the Vienna Convention on the law of treaties states that: a party may not invoke the provisions of its internal laws as justification for its failure to carry out an international agreement. However, expression on the supremacy on the international law over municipal law in international tribunals does not mean that the provisions of domestic legislation are either irrelevant or necessary. On the contrary, the role of international legal rules is vital to the working of the international legal machine.
One of the ways that is possible to understand and discover a state's legal position on a variety of topic important to international law is by examining the municipal laws. A country will express its opinion on such vital international matter at the extent of its territorial sea or the justification it claims or the conditions for the acquisition of nationality through the medium of its domestic law making. Thus, it is quite often that in the course of deciding a case before it, an international court will feel the necessity to make a study of relevant pieces of municipal legislation. The rules of municipal law can be utilised as evidences of compliance or non-compliance with international obligations (Shaw, 1997).
International law does not entirely ignore municipal law. For example, municipal law may be used as evidence of international custom or of general principles of law, which are both sources of international law. Moreover, international law leaves certain questions to be decided by the municipal law (Akhurst, 1977).
Harmonisation theory succinctly provides an answer to the true relationship of the two laws by asserting that:
The starting point in the legal order is that man lives not in one jurisdiction, but in both. International law and municipal law are concordant bodies of doctrine, autonomous but harmonious in their aim of basic human good. When faced with an actual problem, a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law, or vice-versa (Aguda, 1993: 32).
A treaty or other rule of international law imposes an obligation on states to enact a particular rule as part of their own municipal law. Similarly, there is a general duty for states to bring domestic law into conformity with obligation under international law either through transformation, incorporation, adoption or reception, e.g. treaties ratified in accordance with the constitution automatically become part of the municipal law of the USA. In Britain, the traditional rule is that customary international law automatically forms part of English law (Akhurst, 1977).
In a case before a municipal court, a rule of international law may be brought forward as a defence to a charge. For example, a vessel may be prosecuted for being in what the domestic terms is regarded as territorial waters, but in international law, it would be treated as part of the high seas.
Okeke (1986:6) puts it in this manner:
…as states grow in their international outlook, and as they participate in either the creation of new rules of international law or in the re-definition of the already existing ones, it must be borne in mind that the world is now advancing on the principle of interdependence and mutual cooperation. The age of holding tenaciously to the principle of absolute sovereignty is far gone. Indeed, a state by taking laws to be in conformity with international law is a legitimate exercise of the sovereignty of such a state.
Okeke's position stresses the dynamism in law and the society, when the law operates and the need for global intercourse of nation for global benefits; and such interaction must be regulated with law both at national and international levels so as to have peaceful and ordered world.
Okeke in his analysis cited a section each from the constitution of Germany and the United States of America to affirm the interconnectedness of international and municipal laws. The constitution of the Federal Republic of Germany provides:
The general rules of public international law are an integral
part of the federal law. They shall take precedence over the
laws and shall directly create rights and duties for the inhabitants
of the federal territory (Okeke, 1986).
In the same manner, the American constitution also provides:
The constitution and the laws of the United States, which shall
be made in pursuance thereof, and all treaties made, or which
shall be the supreme law of the land, and the judges in every state
shall be bound thereby, and everything in the constitution or laws
of any state to the contrary notwithstanding.
In addition, the rule of the municipal law can be utilised as evidences of compliance or non-compliance with international obligations, e.g. the issue of respect of fundamental human rights. Though, in some countries the law will sometimes fail to reflect the correct rule of international law, but this does not necessarily mean that states will be breaking international law.
From the submissions above, ranging from definitions of law, characteristics and purposes to relationship and complimentary nature of municipal law and international law, it is clear that both laws possess the qualities of law and all that takes to be called laws. They serve the same purposes and perform functions of law because they are meant to regulate conduct, maintain peace, provide protection, achieve justice, etc. They are both enforceable; they have different mechanisms of enforcement and agencies. They are both dynamic in nature, they are made by competent and recognised authority, etc. As a matter of fact, both laws have been able to work towards achieving well ordered societies, which is the ultimate goal of any law. Therefore, international law and municipal laws are reallaws.
Adeniran, T. 1983 Introduction to International Relations. Ibadan, Macmillan Nigeria Ltd.
Aguda, A. (ed.) 1999 Introduction to International Law. Ibadan, Spectrum Law Publishing.
Ajayi, K. 2000 International Administration and Economic Relations in a Changing World. Ilorin, Maaba Publisher.
Akehurst, M. 1977 A Modern Approach to International Law. London, George Allen Publishing Ltd.
Anzilloti, T. 1967 International Law and State. England, Oxford Press.
Davidson, K. and M. Forsythe 1998 Business Law. USA, West Educational Publishing Limited.
Jessup, P. 1968 A Modern Law of Nations. Handen Conn, Archan Books.
Kelsen, J. 1997 International Law. Edinburgh, Rose Publishing Ltd.
Kolawole, D. 1997 Reading in Political Science. Ibadan, Dekaal Publishing Ltd.
Malanczuk, P. 1997 Akehurst's Modern Introduction to International Law. Padstow Con Wall, TJ International Ltd.
Okeke, C. 1986 Theory and Practice of International Law in Nigeria. Forth Dimension Ltd.
Oppenheim, O. 1995 International Law. London, Longman.
Shaw, N. 1997 International Law. UK, Cambridge University Press.
The Author, Tolu Lawal, was born on April 7th, 1974 in Oka Akoko, Ondo State of Nigeria, West Africa. He holds B.sc Political Science and M.sc Political Science(Public Administration option). He is currently a doctoral student of University of Ibadan, Nigeria. He is of Political Science Department.
Related International Law Articles
New York, NY (PRWEB) August 08, 2011
In some industries, it is easy to produce quantifiable proof of a job well done, either in terms of overall sales figures, percent increases, or some similar statistic. In the practice of law, however, results are measured differently. For the legal team practicing at New York?s Spar & Bernstein firm, success is evaluated not in terms of dollars and cents but in terms of the number of clients served. Recently, the highly-publicized firm announced a new milestone?a total of 50,000 clients represented over the course of the firm?s five decade history.
Brad Bernstein, an immigration attorney and New York talk radio host, says the figure is meaningful because the firm?s goal has always been ?to make people?s lives better.? The practice was established in 1958 by Bernstein?s grandfather, Harry Spar. In the early days, Spar & Bernstein dealt strictly with United States Immigration Law, which is, according to Bernstein, the result of his grandfather wishing to ?help people be united with their families and allow them to pursue whatever dreams brought them to this country.?
Bernstein says 50,000 is a major landmark for the firm, but his vision is for Spar & Bernstein to reach even greater heights. In recent years, Bernstein has been expanding the firm?s focus?which once rested almost entirely on immigration cases?to different branches of the law. He says his goal is not for Spar & Bernstein?s immigration services to be neglected, but simply to expand the number of clients he and his colleagues are able to assist.
This expanded sphere of service includes new branches within the firm of Spar & Bernstein devoted to personal injury representation, criminal defense, family law, and tax relief. Says Bernstein, ?We don?t want to add services just to add them. We have added these services because we know people need them, and we have brought in some great attorneys in these fields to maintain the high standards of excellence our firm is known for.?
Bernstein hopes the new range of services will enable Spar & Bernstein to bring in further clients, but he is also acutely aware that immigration law is what led to the bulk of those 50,000 clients. ?Immigration law will always be something this firm prioritizes, and it will always be something that I, personally, am passionate about.?
ABOUT:
One of the nation?s premier legal firms in the field of United States Immigration Law, Spar & Bernstein was founded in 1958 and since then has served more than 50,000 clients. The firm is led by Brad Bernstein, who is nationally-known on immigration law and host of a popular call-in radio show. The firm also offers services in personal injury law and criminal defense.
For more information about Spar & Bernstein, visit http://4immigration.com.
# # #
Most people don't differentiate between civil law and criminal law, partly because the majority of news coverage in the media is dedicated to criminal law cases. Most people have heard of a civil lawsuit, but they aren't really sure how the two are different. Civil cases aren't as widely publicized because they don't ever have the same dramatic punch that often comes with a big criminal case.
It may come as a surprise to many people just how different the two types of suits are - here are some of the biggest differences between criminal and civil law cases.
The Verdict and Subsequent Ruling
This is the major reason why criminal cases are so much more publicized and advertised in the media. The defendant in a criminal case runs much more of a risk - a guilty verdict can bring with it several different forms of punishment depending upon the severity of the crime committed.
Crimes are broken down into two sub categories - first are the felonies, which are the larger offenses and which will most likely result in more severe punishments. Second are misdemeanors, which are the smaller offenses and will likely yield sentences that are not quite as harsh.
A person charged with first degree murder, which is the top of the ladder as far as felonies are concerned, could receive life in prison without parole - or even the death penalty depending upon the state in which the crime was committed. Lesser felony offenses may still yield large amounts of jail time, depending upon the nature of the crime; whether there was pre-meditation, or if the person has been involved in similar criminal activity before.
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Misdemeanor charges with convictions often result in one of or a combination of the following - fines, probation, community service and in some cases jail time. Again depending on the circumstances surrounding the crime, the punishment may be either more or less severe.
The defendants involved in a civil case will never, under any circumstances - regardless of the crime charged, be subject to the same forms of punishment as those convicted in criminal cases. In fact, regardless of the nature of the crime committed defendants convicted in civil cases will never do any time in prison. Defendants who are on the losing side of the verdict in a civil case are often responsible to reimburse the plaintiff or plaintiffs of the case in an amount determined by the judge or jury to be comparable to the loss that they may have suffered due directly as a result of the defendants actions. The actual monetary amount awarded in the verdicts of these cases is often hard to come to, especially in cases when more than just property is lost or damaged as a result of the defendant's actions.
Making the Case
In a criminal case, the defendant is innocent until proven guilty. It's is the responsibility of the side of the plaintiff to build a case that shows beyond a reasonable doubt that the defendant did, in fact commit the crime in question. If the defense can inject even the smallest shadow of doubt on the plaintiffs case the verdict in the case will (or should) return not guilty. If the jury is not very close to one hundred percent certain that the defendant committed the crime in question, then there is no conviction.
The proof required to get the desired verdict in a civil case is not nearly as high as that of a criminal case. If the plaintiff can initially convince the jury that it's reasonably possible that the defendant is responsible, the burden for proving their innocence falls on the defense. If the evidence shows more than fifty percent probability that the defendant is responsible a guilty verdict can be returned and the defendant then becomes responsible for reparations.
Even if the defendant is convicted of the charges and ordered to pay, it still doesn't mean that the plaintiff will receive a financial windfall as a result of the conviction. Often if the defendant has nothing to give, then the plaintiff won't receive the judgment awarded.
Even if the charges are exactly the same, the results and subsequent penalties handed down can be drastically different in criminal cases and civil cases. Civil cases, while not nearly as dramatic to the media as criminal cases and even when a sum can't be awarded, can provide true closure for the plaintiff if the defendant is convicted.
Criminal Lawyer Fort Lauderdale provides criminal defense services to individuals charged with DUI. Criminal Attorney Fort Lauderdale also provides expertise in defending people charged with domestic violence and drug related offenses.
Related Civil Law Articles
Common Law Faq
Like my other question, I need a one sentence definition for this term. Wikipedia doesn't make it very clear what they mean. ' law that relates to the constitution, as a permanent system of political and juridical government, as distinguished from statutory and common law, which relate to matters subordinate to such constitution.
Common law is a different stream of law to equity. It developed in the middle ages where people who had an injustice which could not be sorted by the common law due to strict procedure and precedent were able to file their grievances in equity. - they are 2 different.
What are the common law contract principles? (Homework assignment) No, because there can be several reasons why they don't have the item, but they can write you a raincheck or offer a substitution. - No. - ?? How can it be on sale if the.
Okay I have a few questions: 1) What IS common law marrage? 2) How exactly does it work in the state of Virginia? 3) What if you don't want to be married by common law, or whatever? (Lost on words here!) Thanks! 3) An essential part of common law is that you are presenting.
Is common law marriage recognized in Texas? If so is it still possible to have a common law divorce if one spouse is not a u.s. citizen? Texas does recognize common law marriage (called an informal marriage), but there is no such thing as a common law divorce. If you have a common.
Is there a such thing as common law marriage, legally? Or is it just what people say when they live together. and how long do you have to live together to be considered common law? it depends on what state you live in if it exists and how long you must live together before it takes.
Hmmmm. I think you need to be more specific. Common Law relating to what? Start here, it may help. - No, YOU find a book on republic of ireland common law. - No unless you are more polite about it
Have you heard of the State v. Stewart case. IF you have or have some knowledge of the case please e-mail me. 1. Under the common law, the excuse for killing in self-defense is founded upon necessity, be it real or apparent. 2. Where self-defense is asserted, evidence of the deceased's long-term cruelty and violence towards.
]]>
who is habeus corpus and where did he go to the ACLU wants me to help them find him, can you help us with this I don't know who he is or where he went can you help us with this In common law, habeas corpus (/).
any help with the topic is much appreciated. i have no idea. thank you Common law is judge made law. Personality factors such as the individual judge can affect this. Statistics show that Australian judges are from a very narrow socio-economic background, over 90% of judges are male from an.
They have breached data protection act 1998 and you need advice. It could be a very horrific situation especially as you could have been fleeing domestic violence. Basically there is a common law, called the law of confidence which prevents.
Does that mean Australia has the same kind of statutes as in Singapore/ England.. and other common law countries? Virtually all countries that started with British common law have a lot of basic legal concepts in common, starting with the principles in the Magna.
What do the degrees mean for a murder or other crime? Like when they say 1st degree, 2nd degree, or 3rd degree? 1st degree is premeditated, 2nd degree is when you just kill someone without premeditation, 3rd degree is usually like manslaughter. - It varies by state (or province). At common law (which is.
No, the Bible, nor any other manuscript says that they were married. The Da Vinci Code is a lie, and attempts to undermine the Christian faith. Jesus came for one reason, to save mankind! - Sadly, Nobody knows.. - No, they were very close friends. Of.
the common law is a complete system of law applied in common law courts, it's rigid in nature.equity is not a complete system of law, yet it suffices the lackings of the common law, equity adjudicators judges based on what is fair and just. - In.
Hello there, I am retired and about to transfer my money to a bank in Singapore. I live partly in Europe and Thailand and have a son with my common law partner. I recently made my last will where I stated that 75 percent of my fortune should go to my son and 25 percent.
Yes - any marriage in any state is recognized in all 50 states. This is provided for in the US Constitution. Most states do not recognize common law marriages, with one exception. Common law marriages which were established in states which *do* recognize them are recognized.
The common law of practically every state recognizes slander as a 'tort' where you can sue for actual and punitive damages. Consult a lawyer. - Ofcourse.slander..but make sure it was infact slander..the boss must make a statement in the presence of third parties that.
a friend of mine was married in 1958 he was married for 8 years and had 3 children, he divorced , a year later they bought a home together but never remarried, the children grew up and left, neither one wants to leave the home and all they do is fight ,.
I lived with a man for 14 years. When we broke up I thought are relationship was common law. Which entitles me to marriage benifits. But California did away with that. Does your state have common law? My state does (if it's grandfathered - pre 1997) Here's.
More Common law questions please visit : LawFreeFAQ.com
Like my other question, I need a one sentence definition for this term. Wikipedia doesn't make it very clear what they mean. ' law that relates to the constitution, as a permanent system of political and juridical government, as distinguished from statutory and common law, which relate to matters subordinate to such constitution.
Common law is a different stream of law to equity. It developed in the middle ages where people who had an injustice which could not be sorted by the common law due to strict procedure and precedent were able to file their grievances in equity. - they are 2 different.
What are the common law contract principles? (Homework assignment) No, because there can be several reasons why they don't have the item, but they can write you a raincheck or offer a substitution. - No. - ?? How can it be on sale if the.
Okay I have a few questions: 1) What IS common law marrage? 2) How exactly does it work in the state of Virginia? 3) What if you don't want to be married by common law, or whatever? (Lost on words here!) Thanks! 3) An essential part of common law is that you are presenting.
Is common law marriage recognized in Texas? If so is it still possible to have a common law divorce if one spouse is not a u.s. citizen? Texas does recognize common law marriage (called an informal marriage), but there is no such thing as a common law divorce. If you have a common.
Is there a such thing as common law marriage, legally? Or is it just what people say when they live together. and how long do you have to live together to be considered common law? it depends on what state you live in if it exists and how long you must live together before it takes.
Hmmmm. I think you need to be more specific. Common Law relating to what? Start here, it may help. - No, YOU find a book on republic of ireland common law. - No unless you are more polite about it
Have you heard of the State v. Stewart case. IF you have or have some knowledge of the case please e-mail me. 1. Under the common law, the excuse for killing in self-defense is founded upon necessity, be it real or apparent. 2. Where self-defense is asserted, evidence of the deceased's long-term cruelty and violence towards.
]]>
who is habeus corpus and where did he go to the ACLU wants me to help them find him, can you help us with this I don't know who he is or where he went can you help us with this In common law, habeas corpus (/).
any help with the topic is much appreciated. i have no idea. thank you Common law is judge made law. Personality factors such as the individual judge can affect this. Statistics show that Australian judges are from a very narrow socio-economic background, over 90% of judges are male from an.
They have breached data protection act 1998 and you need advice. It could be a very horrific situation especially as you could have been fleeing domestic violence. Basically there is a common law, called the law of confidence which prevents.
Does that mean Australia has the same kind of statutes as in Singapore/ England.. and other common law countries? Virtually all countries that started with British common law have a lot of basic legal concepts in common, starting with the principles in the Magna.
What do the degrees mean for a murder or other crime? Like when they say 1st degree, 2nd degree, or 3rd degree? 1st degree is premeditated, 2nd degree is when you just kill someone without premeditation, 3rd degree is usually like manslaughter. - It varies by state (or province). At common law (which is.
No, the Bible, nor any other manuscript says that they were married. The Da Vinci Code is a lie, and attempts to undermine the Christian faith. Jesus came for one reason, to save mankind! - Sadly, Nobody knows.. - No, they were very close friends. Of.
the common law is a complete system of law applied in common law courts, it's rigid in nature.equity is not a complete system of law, yet it suffices the lackings of the common law, equity adjudicators judges based on what is fair and just. - In.
Hello there, I am retired and about to transfer my money to a bank in Singapore. I live partly in Europe and Thailand and have a son with my common law partner. I recently made my last will where I stated that 75 percent of my fortune should go to my son and 25 percent.
Yes - any marriage in any state is recognized in all 50 states. This is provided for in the US Constitution. Most states do not recognize common law marriages, with one exception. Common law marriages which were established in states which *do* recognize them are recognized.
The common law of practically every state recognizes slander as a 'tort' where you can sue for actual and punitive damages. Consult a lawyer. - Ofcourse.slander..but make sure it was infact slander..the boss must make a statement in the presence of third parties that.
a friend of mine was married in 1958 he was married for 8 years and had 3 children, he divorced , a year later they bought a home together but never remarried, the children grew up and left, neither one wants to leave the home and all they do is fight ,.
I lived with a man for 14 years. When we broke up I thought are relationship was common law. Which entitles me to marriage benifits. But California did away with that. Does your state have common law? My state does (if it's grandfathered - pre 1997) Here's.
More Common law questions please visit : LawFreeFAQ.com
Orange, CA (PRWEB) March 18, 2008
The U.S. legal system and the law has to become accessible and affordable for all Americans. LegalArrow.com, which was just launched, helps convert this unanimous proposition into practice.
Attorney Marin Cionca created LegalArrow.com - an online legal document service, to help in the effort of making the legal system more accessible and affordable for all people.
"I am a great believer in the Internet, and the great opportunity it offers for low cost communication and publishing. I felt that the legal system did not take full advantage of the present information technology progress, to make itself more accessible to all Americans. That's why I created LegalArrow.com, which provides free legal information, and low cost legal document services to the public," said Cionca.
Every parent needs a will and a living will, yet research shows that a large majority of parents do not have any. Often, the reasons are the scarcity of easily accessible legal information, and the high cost associated with hiring an attorney to draft the needed legal document. LegalArrow.com offers an alternative: free legal information to help understand the main elements of, for example, a living will, and the low cost option of having a legal document professional prepare that living will.
"Before I became an attorney I was a college instructor for over six years. I feel that I have to continue to give back as an attorney, by 'teaching' the law now. LegalArrow.com gives me the platform to do so," said Cionca.
Currently, LegalArrow.com offers several legal documents and procedures, from wills and trusts, to incorporation and limited liability company formation services. More legal documents and procedures are in the works and will be added online shortly.
The process of ordering legal documents at LegalArrow.com is simple: you answer a set of document-specific questions which are written in plain English, and are supported by the step-by-step general legal information available to guide you. Next, the legal document professionals at LegalArrow.com prepare and mail the documents to you, or they can even file them for you.
About LegalArrow.com:
While LegalArrow.com or its owner Legal Arrow, Inc. is not a law firm, and does not offer legal advice, it helps people have access to free general legal information, and address their common legal matters or concerns in an affordable way.
Contact:
Marin Cionca, Founder/CEO
Legal Arrow, Inc.
(714) 938 - 3817
LegalArrow.com
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Find More Legal Systems Press Releases
Vienna (Vocus) October 30, 2009
Approximately 350 prominent leaders from 16 various fields of endeavor and more than 80 nations will convene in Vienna Nov. 11 - 14 at the World Justice Forum II to discuss how the rule of law impacts their professional disciplines and communities, and to develop projects that can make a difference at a local level.
The three-day Forum, hosted by the World Justice Project and being held at the Austria Center Vienna, will include a discussion and analysis of the rule of law in nearly three dozen nations, including Albania, Argentina, Austria, France, Indonesia, Mexico, Morocco, Pakistan, South Africa, Thailand and the United States. The Rule of Law Index is an assessment tool that provides a comprehensive picture of how nations adhere to the rule of law in practice. The World Justice Project anticipates administering the Index in 100 countries within three years.
Data for the Index was gathered through interviewing practitioners, community leaders and academics, as well as professional polling of a large sample of citizens who are subject to the rules of a specific country. Among the key factors considered: whether the government and its officials and agents are accountable under the law; whether the laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property; whether the process by which the laws are enacted, administered and enforced is accessible, fair and efficient; and whether the access to justice is provided adequately by competent, independent, and ethical adjudicators, attorneys or representatives and judicial officers.
During the invitation-only Forum, which members of the media are invited to attend, participants will hear from such distinguished speakers as Palestinian legislator and activist Dr. Hanan Ashrawi; Ashraf Ghani, Chairman, Institute for State Effectiveness, Afghanistan; and Ellen Gracie Northfleet, member of the Supreme Federal Court of Brazil and its first female president.
The objective of the Forum is the design, by participants, of multidisciplinary projects that can be implemented locally to strengthen the rule of law. The World Justice Project's Opportunity Fund awards seed-money grants to grassroots groups that work to further justice. To date, such multidisciplinary projects have included helping poor residents in India to obtain basic health care, ensuring access to justice as it relates to marriage and property rights for women in Sierra Leone, and working to end corruption in construction in Tunisia. The attendees of the Forum will commit to work toward strengthening the rule of law when they return to their homes through similar projects incubated during the Forum.
The draft agenda for the Forum can be found at http://www.worldjusticeproject/forum.
The World Justice Project, an independent tax-exempt corporation, is unique in its engagement of stakeholders from a variety of disciplines around the world and is building an active network of governmental and nongovernmental leaders from 16 disciplinary fields, representing all socio-economic levels of society. Its work is being carried out through the creation of a comprehensive Rule of Law Index, the convening of global and regional mainstreaming meetings of leaders from various work disciplines on rule of law issues, the issuance of seed grants through the WJP's Opportunity Fund to rule of law initiatives and the origination of new scholarship on rule of law issues. The Project's efforts are dedicated to developing practical programs in support of the rule of law around the world.
Reporters interested in attending the World Justice Forum, or wishing additional information or interviews, should contact Patricia Gaul at +1 202/662-1094.
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Contact: Patricia Gaul
Phone: 202/662-1094
Online: http://www.worldjusticeproject.org/
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Province of International Laws Determined
TABLE OF CONTENTS:-
The international laws in the current aspects as viewed by most of the jurists round the globe are the laws that govern the relations of the nations with each other and the control over the individualism and freedom of these democratic as well as otherwise nations. the international laws are thought to be the governing machineries of the contemporary scenario in which the accountability of the nations for the most inhumane crimes being done by them are brought to the court. in the various books that talk of "taking the state to court" and the "mobilization" standards of the present F1 generations are being expressly interviewed. These scholar works tend to connote that the international laws are the tools that can limit the future dangers of the international insecurity and other problems of colonization etc. faced by most of the nations of the world. These nations are threatened by the superpowers for being forced to remove their ruling strategy. The United Nations has done several peacekeeping operations and has set various organizations that intend to store the peace and spirit of coordination and cooperation in the world. The theories of the international laws that are found to be dealing with the origin and the gradual development of the international laws have been asked a lot of questions as the race for hegemony is on the peak. Growing problems of racism and international terrorism are the new challenges being faced by the international laws today. This article presents various such aspects and put the suggestions for their solutions under one umbrella. The first question before everyone is this that "what are the international laws and what purpose do they serve for humanity and international peace?" This is the most critical question that corresponds to the enforcement of international and the limits of the international courts of justice being determined. We know that the function of the national laws is to regulate the behavior of the individuals but when we intend to talk of the international laws, the shoes of individuals are wore by the states. What if the international laws are the vanishing point of the world? It is well known to the students of the international laws that the primary function of the international law is to regulate the conduct of the states while on the other hand the national laws intend to regulate the conduct of the individuals. If we examine the contours on which the body of international law is explained we could easily derive the conclusion that most of the allegations that are imposed upon the rule of international laws are concerning their applicability or jurisdiction in one way or the other. Thus the international laws are to be made more binding and the forces that provide sanctioning power to such laws are to be extending to ensure the desired obedience. The identity of the international laws another such aspect that is necessary to limit the province of international laws. The state and non-sate actors are also the key aspects that correspond to the applicability of the international laws. We here mean the kinds of acts performed by the international superpowers and other small newly independent states. In various cases of hegemonic expansion and colonialism, it could be traced that the war-crimes and crimes against humanity are recorded.
02. TAKING THE STATE TO THE COURT
:-
In the contemporary growth of the international law, the growing awareness among the people of the various countries has led to the introduction of the concept of public interest litigation which has increased and widened the opportunities that even the states could be brought under the jurisdiction of the courts. In a study by the German philosopher "Hans Dembowski", it has been concluded that the growing political unfairness and other political reasoning have led to the introduction of Judicial Activism which has led to the growth of the power and abilities accompanied with the authoritativeness of the judiciary. International laws deal with the sociology of governance and in this respect connote to the division of power between the administrative and judicial branches of the government and their interaction with society as a whole in the particular cases that have been studied. The ongoing, excited media debate about the public interest litigation and judicial activism makes this evident. This function has typical stand point in certain countries of the world. The international arena on which various countries are brought on the same standard in the international court are is seemingly an attempt to ensure fairness and security in the international contour. Let us have a look over the two important aspects that have been the focus of study in the international society.
[A]. State Sovereignty
Sovereignty, for the past several centuries, has been the foundation of interstate relations and the world order. The concept- defined as the independent and unfettered power of a state in its jurisdiction-lies at the heart of the customary international law and the UN charter. It remains both an essential component of the maintenance of international peace and security and a defense for weak states against the strong. At the same time, the concept has never been as inviolable, either in law or in practice, as a formal legal definition might imply. In his 1992 An agenda for peace, UN secretary general Boutros Boutros-Ghali pronounced that the theory of sovereignty never matched the reality. In exploring why the westphalian sovereignty is continuously ignored or violated, Stephen Kraser has noted straightforwardly that "organized hypocrisy is the normal state of affairs. Sovereignty has routinely been violated by the powerful. In today’s globalizing world, it is generally recognized that cultural, economic influences neither respect borders nor require entry visas in both powerful and the powerless countries. The concept of state sovereignty is well envisaged in the legal and the political discourse, but territorial boundaries have come under the stress. Not only technology but also communications have made the boundaries permeable, but the political dimensions of the internal disorder and suffering often can result in wider international disorder. The initial purpose of this discussion is to set out the scope and significance of state sovereignty as a foundation on which to explore the contemporary debates about intervention. The literature on this subject is vast and contentious. As one legal analyst accurately summarizes:
Few subjects in the international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopedia of Public International Law as "the most glittering and controversial notion in the history, doctrine and the practice of the international law." On the other hand, Henkin seeks to banish it from our vocabulary and others call it " a word that has emotive quality lacking meaningful specific content". There is little neutral ground when it comes to sovereignty.
State sovereignty denotes the competence, independence and legal equality of the states. The concept is normally used to encompass all matters in which each state is permitted by international law to decide and act without intrusions from the other sovereign states. The scope of freedom of choice in these matters is not unlimited; it depends upon developments in international law and in international relations. The current foundations of the international law with regard to sovereignty were shaped by the agreements concluded by the European states as part of the treaties of Westphalia in 1648. the 1993 Montevideo Convention On Rights and Duties of States spells out the following main essentials: a permanent population, a defined territory, a functioning government, and the ability to enter into relations with the other states. The Montevideo definition includes both empirical (population and effective government) and juridical (borders and independence) components. There is a controversy regarding the accurate sovereignty of the states in Africa which has been the problem in the enforcement of the principles of the convention. These states are sovereign de jure but not de facto. As a hallmark of statehood, the territorial sovereignty is a must in the international system. An act of aggression is unlawful for two reasons: it undermines the international order, and states have exercised their sovereignty to outlaw war in the UN charter. The failure or the weakening of the state capacity brings tragedies and international insecurity. In sum, sovereignty is the key constitutional safeguard of the contemporary international order. Despite the pluralisation of the international relations resulting from the proliferation of the non-state actors which is evidenced by globalization, democratizationand privatization worldwide- the sate remains the fundamental guarantor of human rights locally as well as building block of international society.
Critical Issues
Instead of the heavy recommendations on the maintenance and enforcement of sovereignty among the states, this constitutional aspect of every nation is subject to limitation in the statements of the United Nations which have dealt heavily upon the matters concerning the world peace and a definite civil order in the international community. These limitations are as described under:-
Firstly, the charter of the United Nations contains collective international obligations for the maintenance of international peace and security. According to Chapter VII, sovereignty is not a barrier to Security Council action in response to " a threat to peace, a breach of the peace or an act of aggression."
Secondly, sovereignty may be limited by customaryinternational law and treaties. States are responsible for their international obligations, and therefore sovereignty cannot be an excuse for not performing the duties to which they have agreed sovereignty thus carries with it responsibilities to protect the persons and property, as well as to regulate political and economic affairs. Sovereignty cannot shield internal violations of Human rights that contradict the international obligations. It has been evident in the pages of history that in a no of cases, the Security Council endorsed the use of military force for the protection of the populations in the states which were caught in the throes of war.
[B.] Changes And Continuity In The International System
Limits to the sovereignty are widely accepted-its erosion by economic, cultural and environmental factors, for example, or by customary law and voluntarily agreed treaty obligations. But Annan’s assertion of popular sovereignty was a far more radical challenge. It joined three other threats to traditional notions of state sovereignty that arose in the 1990s and are relevant for our consideration of humanitarian intervention: the right of self-determination, a broadband conception of international peace and security; and the collapse of state authority. In spite of significant change, the international system reflects substantial continuities: in centrality of state decision making and the lack of any changes overriding central authority. But situating the nature of changes and continuities is the task of political analysis and judgment. However, after the end of the cold war, these situations changed to a great extent. Firstly, the soviet union became a superpower in which Russia led the legal status of USSR, including a permanent seat on the Security Council, but 14 other states were created by the implosion of the former soviet union. Shortly, thereafter, Yugoslavia broke up into six independent states, with Serbia and Montenegro later forming the republic of Yugoslavia. Contemporary politics in developing countries is conditioned by the legacy of colonialism. The second challenge is that the broadening interpretation of threats to international peace and security, the charter’s only enshrined license to override the principle of noninterference. The third challenge was to the traditional interpretations of the sovereignty has arisen because of the incapacity of some states to exercise effective authority over their authorities and populations, a topic that is dealt extensively by the international community. For these states sovereignty is a legal fiction which never matches to reality. The political vacuum leads to the nonstate actors taking matters into their own hands and is usually accompanied by the forced displacement of the people. The United Nations confronts the same constraints today as the diplomats and politicians have since time immemorial, and certainly since the beginning of the modern efforts at the multilateral cooperation in the 19th century.
[C.] The International Court of Justice (ICJ):-
The international court of justice even though working for the enforcement of the principles behind the objective of maintenance of peace among the states of the world have been posed by various questions that are the critical areas of thought that concern the epistemology behind the working of the international courts. The states which are prosecuted in the court suffer from various discriminations and differentiations. The trials that are governed or were carried out at Nuremberg etc. follow the traditional principles i.e. TRC Act, 1995. This method has been given the name "Victor’s Justice". The victor prosecuting the accused in his own sort of understanding and reasoning is clearly presenting the breaking of the basic norm of the law that "nobody could be a judge in his cause". This method of trial was applied in the Saddam’s trial when USA attacked it after it had the security threats from Iraq that it possessed nuclear weapons of mass destruction. The differentiation and the discrimination which has been done against Saddam have been, clearly witnessed by the world that dreams of making a new world order that involves the concept of Justice. The influence of Gandhian thought is clearly visible in the TRC Act. The basic problem is that most of the overwhelming systems of justice of the contemporary world are penal, and having very less imports of the impressions of peace. There the troublesome atmosphere prevails in the international level. It imposes stress upon the mind that what does the phrase "Taking the state to court" means. The solution is thus provided:
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The concept of collective security of the nations should be enforced and that the violence as the means of achieving objectives should be destroyed to the maximum extent possible.The inter-state relations should be given more importance and the suppression of the voice of the mobilized groups should not occur. The concept that could prevent a party from giving statements should be abandoned. The method od prosecution called as "victor’s justice" should be deleted because that leads to the serious violation of the principle of "audi alterum partum" and the judgment seems to be biased. The limits over the application of the international laws and the scope of the obedience of the same should be expanded. The international laws/treaties/conventions should be accompanied with more degree of sanction. The retributive nature of punishment should be overcome and new strategies to make the international laws more humane should be attempted.There should be prosecution of the states that interfere with the enjoyment of the right of sovereignty of the other states without any firm and reasonable cause.Besides prosecuting a state for the violation of treaty or other humanitarian principles, the focus of the prosecution should be to derive a method for the solution of the problem. The same may include the support of fellow members of the UN.
03. DEMOCRACY AND INTERNATIONAL SOCIETY
Democracy as a norm and the promotion of democracy as an activity has become far more deeply embedded within international society in various ways. In the first place, there has been an enormous expansion in the involvement of the UN and regional organization in elections. Electoral assistance has become an established part of UN activities and has also led to development of a broad transnational and trans-governmental network of electoral assistance, party support, and monitoring.second, external actors have routinely become involved in democracy promotion as a result of the expansion in the number and scope of peacekeeping operations, whose multi dimensional character came in many places to include human rights and democracy as well as demilitarization, refugee protection and state-building. In the cases of direct international administration of territory, the assumption of the sovereign power involved both transitional administration and also democratic regime-building. Third, democratic membership criteria have been established in two regions, and, in the case of Europe, democracy, human rights, and minority rights have all played a central part of the process of EU enlargement, the conditionality policies of the EU, and its extensive programme of member-state building. Finally, an increasing body of academic writing has opened up the idea of a legal right to democratic governance. The normative expansion of the international society to include democracy was also driven by political factors. Although there were references to ‘democratic’ rights in UN Declaration, the conditions of the cold war meant that formal incorporation of political democracy into the human rights system was politically impossible. This changed as a result of the wave of transitions from authoritarian rule in Southern Europe and the developing world in the late 1970s and 1980s; and the fall of communism in Eastern Europe and the Soviet Union; by the liberal self-confidence that followed the ending of cold war and the belief that liberal democracy and free markets were sweeping the world; and the consolidation of the place of democracy in US foreign policy. Two broader shifts need to be highlighted, both of which link academic analysis and political perceptions. The first concerns the progress of democratic change and the possibilities of democratization. During the cold war, Western governments were suspicious that the political change would be destabilizing, bringing to power either those who would ally themselves with the Soviet Union or who would challenge western economic interests. Democratization then carried with it some counter-hegemonic potential. It is also widely held in Western capitals and amongst the private sector that authoritarian governments were most suited to promoting economic development. Many academicians argued that, in any case, democracy required a wide range of ‘prerequisites’ that were lacking in many postcolonial societies. The wave of transition that began in Southern Europe and Latin America in the late 1970s ushered in a striking reassessment: democratization becomes the norm rather than the exception; the exception is of generally forward movement; and the democratization appears to be easier and less problematic than had been previously believed. A post-cold war world meant that unstable and potentially oppositional regimes could no longer look to the Soviet Union. And a globalized world meant that economic nationalism was no longer and option. The trade-offs between uncertain democratization, security interests, and economic preferences were apparently easing and a strong sense of difficulties of democracy gave way to an increased sense of ‘possiblism’. The conversion by the mid 1980s ofUS foreign policy was retold through a different lens that stressed the country’s historic mission to extend and promote democracy. The other important shift in thinking reflected the allegedly proven link between democracy and peace. Democratic peace theory builds on long tradition writing on international relations, often associated with Kant. However, it only formed one part of Kant’s political thought and had already become a liberal commonplace by the end of the 18th century. Other precursors of modern DPT include Karl Deutsch’s writing in the 1950s on security communities- groups of states in which there is real assurance that the members of that community will not fight each other physically but will settle their disputes in some other way. Overlooked or neglected by many studies of war causation, it became a major theme both of academic writing on international relations and of political and public debate on the nature of the post-cold war international order. Theorists argue that two sets of casual factors are important in explaining the democratic peace. In the first place, the structural constraints of democratic institutions and of democratic politics make it difficult or even impossible for war-prone leaders to drag their states into wars. They also stress the joint effect of these democratic constraints, together with the greater openness and transparency of liberal democracies. If both sides are governed by cautious, cost-sensitive politicians that only use force defensively, then conflict is far less likely to occur. Second, democratic peace theorists highlight the importance of normative mechanisms. Liberal and democratic norms include shared understandings of appropriate behavior, stabilize expectations of the future, and are embedded in both institutions and political culture. Rule-governed change is a basic principle; the use of coercive force outside the structure of rules is prescribed; and trust and reciprocity, rule of law are at the heart of democratic politics. From this view, then, the democratic peace is produced by the way in which democracies externalize their domestic political norms of tolerance and compromise into their foreign relations, thus making war with others like them unlikely. The democratic peace hypothesis rests on two claims: (a) that democracies almost never fight each other and very rarely consider the use of force in their mutual relations and (b) that other types of relations are much more conflictual including democracies’ interactions with non-democracies. The claim is almost always made in probabilistic terms. Few claim that it is a deterministic law. It is not a general theory since it is agnostic or at least much less certain about the relationship between democracies and non-democracies. But it provides some grounds for liberal optimism, even if only within the democratic zone. If true, it holds out the possibility that the homogenization of domestic political systems could transform global political order- in marked contrast both to traditional realist accounts of world politics and pluralistic accounts of international society. The main debates surrounding the democratic peace and the main issues raised by critics and skeptics include: (a) the reliability of the statistical evidence for the democratic peace, especially in the pre 1945 period; (b) the existence of alternative casual logics, especially in explaining regional clusters of peaceful states as in Europe or the Americas; (c) the difficulties of defining key terms in the theory, especially war and democracy; (d) and the problems raised by democratization processes and the evidence that, whilst fully consolidated democracies could be peaceful, democratizing states, specially in unstable areas, may be more conflict-prone than authoritarian regimes. Here are certain important issues noted from the speech (annual report) by the UN secretary general which was delivered in the General Assembly in 2007:--
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Despite these positive developments, however, efforts to expand democratic governments still face significant challenges. Many countries continue to limit fundamental freedoms, and governments face problems of the public sector efficiency, transparency and accountability. Women are playing a growing role in building democracy, but in the top leadership positions their numbers remain limited. Indigenous peoples and marginalized groups are also often excluded from power. Moreover, without vigorous participation democratic participation, official accountability, and strengthened institutional capacity, governments are unlikely to deliver on their commitments to achieve the millennium declaration, including the millennium development goals, and other internationally agreed development goals.The Un democracy fund has begun to make its mark. During first year of activities it funded 122 projects out of 1300 proposals submitted. The projects are implemented in partnership with diverse national actors. The fund’s activities encouraged transparency in government and supported national human rights institutions, civic education, electoral systems and processes, as well as political parties. There was a major focus on the participation of the youth and women in decision-making, 62 % of the submitted proposals containing a significant gender component and 37% explicitly promoting women’s rights and gender equality.The sixth international conference of new or restored democracies, held in Dolha from 29 October to 1 November 2006, reaffirmed a common commitment to democratization on the part of 100 governments, 69 parliaments and 97 civil society organization which took part. An advisory board and a nucleus secretariat were established to assist the chair of the conference in implementing the decisions of the conference.As countries enter the post-conflict phase, the focus of the UN assistance often shifts to consolidating the experience gained by newly created electoral institutions. An example is Liberia, where in September 2006 the UN mission in Liberia handed over the responsibility for long-term UN electoral assistance to UNDP.Meanwhile, the volume of technical electoral assistance to member states continued to increase. More than 30 technical assistance projects were launched in 2006, mainly through UNDP. United nations electoral assistance is often provided, moreover, in complex political environments. In the case of Mauritania, following the advice of the united Nations, the national authorities put specific measures in place that contributed to the credibility of a constitutional referendum and parliamentary and local elections in 2006, and presidential elections in 2007.Although the past year saw the scaling-down of several large and complex electoral operations, including operations in Afghanistan, Iraq and Liberia, the UN made a major contribution to the holding of historic parliamentary, presidential and provincial assembly elections in July and October 2006 in the democratic republic of the CongoThe United Nations continues to foster democracy and good governance, not only through its assistance in the holding of credible elections, but through a wide range of activities to promote democratic institutions and practices. These include support for independent judiciaries and parliaments, strong national human rights policies and institutions, transparency and accountability in government, civic education, free expression, and vibrant civil societies with opportunities for participation. In this regard, electoral processes are increasingly considered not as an end in themselves but as a bridge to peace building and sustainable development. The implementation of the United Nations convention against corruption has become a special priority for the UN system in improving the quality of governance in its member states.
Review:-
01. The situation in Iraq
[A.] The global order:-
[A.] The global order:-
01. The situation in Iraq
is causing widespread concern in the international community. The future of Iraq is vital to the stability of the region and the world. During the past year, the UN worked to foster regional engagement through initiatives including the international compact with Iraq and continued to promote national reconciliation and consensus-building, in particular through the support to the constitutional review process. UN will continue to assist Iraq through the challenges ahead. In Lebanon, the aftermath of 2006 war saw political divisions deepen, rendering more difficult the fulfillment of various UN mandates in support of the Lebanese sovereignty, territorial integrity and political independence. In the Middle East, the UN continues to increase the peaceful settlements.
02. Concerns about Asia
:- in Nepal, progress was made towards resolving the conflict and its underlying causes; the UN mission in Nepal was instituted at the request of the Nepalese parties to assist in the election of the constituent assembly and the political transition.
03. Northern Uganda
:- the special envoy of the UN for the lord’s resistance army affected areas worked with the regional actors to reinvigorate peace talks. A joint African Union-UN initiative was launched to advance the political process in Dafur. There is active representative of UN in Somalia for the purpose of national reconciliation.
04. Myanmar and Fiji
:- Asia also saw the greater use of secretary general’s good offices, with renewed high level dialogue between the UN and Myanmar, and the dispatch of an inter-agency fact finding mission to fiji following the coup in December 2006.
[B.] OnPeace-keeping attempts of the UN
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At the beginning of 2006, UN peacekeeping supported 18 peacekeeping operations and 13 other field missions and offices, involving approximately 85,000 deployed personnel. By august, 2007, this number has got considerably increased.
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Among the myriad challenges faced by the UN peacekeeping during 2006 was the situation in Sudan and its spillover effects into Chad and the Central African Republic. The UNMIS has been to monitor the peacekeeping agreement of 2006. Another challenge facing UN peacekeeping operations was the Kosovo status talks and the eventual transition of the UN interim administration mission in Kosovo.
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The UNIFIL continued to cooperate closely with the Lebanese armed forces with a view to consolidating the new strategic military and security environment in the southern Lebanon, and to prevent violations of the blue line and maintain the cessation of the hostilities. UNIFIL has created has created a stable operational area as a basis for international efforts to revitalize the political process leading to a permanent ceasefire.
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The growing number of similar incidents require United Nations intervention demonstrates the central importance of control over security institutions to build a legitimate state. Enhancing national capacity and institutions particularly in the security sector is a long term process involving political commitment on the part of national stakeholders and the support of international community, especially donors. A critical aspect of this process is fostering national and local ownership of reforms intended to limit the role of the military in internal security, ensure that all security forces are under the civilian control, and meet basic standards of accountability, transparency and respect for human rights. The operational record for strengthening the capacity of national security institutions has been mixed. In Sierra Leone there has been a measure of national ownership for reforming the military and the police, although UN is concerned about its self sustainability in the absence of the continuing and long-term international technical and financial support. Similar problems faced Liberia and Congo, which are in the early stages of security sector reform. Security sector reform has been also less successful in Afghanistan, where the war against the Taliban and other anti-government elements has forced the security agencies to play a larger-than-ideal role in the attempt to provide internal security.
[C.] THE RULE OF LAW:-
The rule of law is a fundamental principle on which the United Nations was established. The United Nations goal continues to be a community of nations operating according to rules that promote human rights, human dignity and the settlement of the international disputes through peaceful means. International criminal justice, a concept based on the premise that the achievement of justice provides a firmer foundation for lasting peace, has become a defining aspect of the work of the organization. The international tribunals for Yugoslavia and Rwanda continued to conduct the trials of those accused of war crimes, crimes against humanity and other war crimes. The extraordinary courts charged the defendant for the crimes against humanity and placed him in detention. The courts for Sierra Leone commenced the trials of Charles Taylor and rendered two historic judgments that convicted five defendants for war crimes. In March, the Security Council requested UN to negotiate with the government of Lebanon an agreement aimed at establishing a tribunal to bring justice those accused of the attack that killed the former prime minister of Lebanon, Rafiq Hariri. The Security Council took resolution on 30 May, 2007 for establishment of special tribunal in Lebanon.in order to better the coordinate working of these institutions, at the end of 2006, the report entitled ‘Uniting our strengths: enhancing the United Nations support for the rule of law’ announced the establishment of a rule of law coordination and resource group. The group consists of major rule of law assistance providers in the UN system, who met to ensure that programmes are carried out in a coherent manner and are of high quality commensurate with the need of those requesting the support.
04. PURSUIT OF JUSTICE:-
One of the attractions of an old fashioned state-based pluralism and of a very thin view of international society was precisely that it appeared to offer a way of dealing with diversity and disagreement. If the diversity and the value are such important features of international life, then we should seek to organize global politics in such a way as to give groups scope of the for the collective self-government and cultural autonomy in their own affairs and to reduce the degree to which they will clash over how the world should be ordered. Equally, if the dangers of predation by the powerful are deep-rooted, even if not structurally determined, then we should continue to place a heavy emphasis on sovereignty and on the balance of power. In addition, the skeptical pluralist is attracted to the idea that it might also be possible to develop a cross-cultural consensus over the minimal rules around which a such a limited international society might be built. Hence the attraction to the international society writers of Hart’s notion of a minimum content of natural law built around Hobbesian assumptions. Hence, too null’s emphasis on the ‘elementary conditions of social life’, his attempt to isolate the elementary primary, and universal goals of the society of states; and his analytical effort to link these goals to the historical institutions of the international society. Negotiating the terms of cooperation is certainly a quintessentially political exercise. But it is also an inherently normative one both because acting in the world requires that we think about morally desirable change and because moral debate forms one part of how that political exercise will unfold. As noted in many places in this book, debates on global justice within the political theory and political philosophy have increased enormously in scope and sophistication. There is an increasingly rich array of potential answers to the problems of global political theory, including those related to just war, to humanitarian intervention, distributive justice, and to global democracy. The fragility of global political order makes it unconvincing to see this challenge as a second-order issue of moral methodology.
[I.] Institutional Authority:-
There are three major reasons why institutions are so important: as a means of helping to secure the framework for mutually intelligible moral debate; as a way of securing the stable implementation of shared rules; and in terms of the potential for the progressive development of a global moral community. In the first place, if we are looking for cross-cultural universals, a good case can be made for starting with process and with near-universality of ideas about fairness of process: hearing the other side, providing arguments for one’s actions, finding some mechanism for adjudicating between conflicting moral claims. All stable societies have to find some agreed process and procedure by which more moral conflicts can be adjudicated and managed, if not resolved. Within world politics the challenge is more daunting, given the diversity and divisiveness of sentiments, attachments, languages, cultures and ways of living, combined with massive inequalities of power, wealth, and capacity. Stuart Hampshire has suggested that there is an irreducible minimum to notions of just process. Second, institutions are also necessary because rules have to be applied. The cry of the liberal solidarist or the cosmopolitan moralist is that we need new rules to meet new circumstances. Terrorism requires that international society rethink rules relating to self-defence and the use of force. The degree to which international society is affected morally and practically by the humanitarian catastrophe means that we need new rules on humanitarian intervention. There are good arguments in favour of both these propositions. But it is a myth that, for example, a new rule on humanitarian intervention would obviate the need for the institutions and institutional debate. Even if the rule is agreed and even if the background criteria for evaluation are agreed, all rules have to be interpreted and applied. The new rule of humanitarian intervention will not avoid the need for that rule to be applied to the circumstances of a new case. On the one side, this inevitability raises the fundamental political issue: who is the body that has the authority to interpret and to apply the rule? There have been certain proximities that have been put-forth by Dallymayr. On the other side, we are faced by problems intrinsic to the idea of interpretation and application. Thus cultural and historical complexity makes it difficult to read off judgments in particular cases from general or universal moral laws and there is good reason for supposing that a great deal o the debate over values and ethics in the twenty-first century will necessarily have to be context-rich and interpretative. At one level, this might simply mean that universal principles need to show sensitivity to local context. But the challenge is deeper. Thus Tully follows criticizing in those who demonstrate a contemptuous attitude to the particular case. In terms of institutionalizing global order such a position lends support to a form of practical reasoning that is constantly navigating between the general rule, whether legal or moral, and it’s always contestable application to the facts and circumstances of a particular case. Third, institutions matterbecause of their potential for self-reinforcing dynamic. Once created, institutions act as platforms for the ongoing normative debates, or the mobilization of concern and for debating and revising ideas about how the international society should be organized. However much social scientists insist on analyzing international institutions solely in terms of the provision of international public goods, normative issues cannot be kept out of the picture. In addition, there is an inherent tendency for all normative systems to expand and develop, and to enmesh actors within certain patterns of discourse, reasoning, and argumentation. Finally, as we have seen, there are good reasons for believing that international institutions have acted as powerful agents for the diffusion and socialization of norms. Assessing the very mixed empirical record of actually existing institutions can have important implications for our views of global justice. Thomas Nagel, for example, has developed a political conception of global justice. Drawing on Hobbesian traditions, he argues that justice arises amongst those jointly subject to coercive authority. His assessment of where international institutions and global governance are ‘for the moment’ is that they fail to meet a crucial test, namely, they are not collectively enacted and coercively imposed in the name of all the individuals whose lives they affect. Yet this view of justice places too much weight on the difference between coercive and non-coercive situations; and, more importantly, underplays the extent of the changes that have in fact taken place in the density of international institutions, in the extent to which they do in tact exercise power and can be said to be co-authored, and in the relationship of both states and individuals to those institutions.others who either deny the possibility of international distributive justice or see it only in highly constrained forms also place great emphasis on the absence or weakness of international institutions or other cooperative arrangements. Thus, society’s main political, social and economic institutions and how they fit into one unified system of social co-operation’ determine the basic structure and govern ‘the initial focus’ of how to think about the matters of justice. But the emphasis here should be on ‘initial’ since Rawls also recognizes the possibility of reinforcing change. When writing about the domestic society, there is a strong sense that the institutions play a central role in moving from self-interested cooperation towards full overlapping consensus. They have important socializing influences on the citizens and Rawls presents a psychological account of how people come to accept and internalize principles of justice. Equally- when looking at international life- change, evolution, and learning are self recognized. ‘The idea of a reasonably just society of well-ordered peoples will not have an important place in a theory of international politics until such peoples exist and have learned to coordinate their actions in wider forms of political, economic and social cooperation. A global moral community in which claims about justice can secure both authority and can be genuinely accessible to a broad swathe of humanity will be one that is built around some minimal notion of just process, that prioritizes institutions that embed procedural fairness, and that cultivates the shared political culture and the habits of argumentation and deliberation on which such institutions necessarily depend. As Judith Shklar puts it; ‘procedural justice is not merely a formal ritual, as is often charged. It is a system that in principle gives everyone some access to the agencies of rectification and, more significantly, the possibility of expressing a sense of injustice to some effect, at least occasionally. It is important here to avoid too sharp distinction between a consent-based view of international legal legitimacy and a justice based view. Procedural legitimacy is not simply about state consent. On the one hand, consent itself may be moderated and mediated by the complexities of legal process, even without disappearing entirely from the international legal order. On the other hand, there are other important values located within the processes of international law. This may be understood in terms of the old arguments about the ‘inner morality’ of law and the rule of law. Or it may involve principles of public law that can be employed to guide international and global law-making. Or, most generally, it may simply involve an insistence that the justification of a position or a case follows an articulated, discernible, and coherent pattern of legal argument that draws on analogies, precedents, and the principles that are compatible with already widely accepted values. Finally, law can be viewed as a sociologically embedded transnational cultural practice in which claims and counterclaims can be articulated and debated and from which norms can emerge that can have at least some determination and argumentative purchase. Law, then, can play a communicative and epistemic role, shaping the conditions within which claims, including justice claims can be made and debated. The modern day Grotian will be inclined to stress the ongoing, unstable and subtle interplay between the sources of law and legal process on the one hand and the content of the law and o legal rules on the other.
[II.] Political Agency:-
That we should on the institutions, on negotiation, and on dialogue and deliberation is hardly an original suggestion. Albeit with significant variation, many have been tempted to go down a broadly Habermasian road-stressing the extent to which the terms of a just global order cannot be based on coercion nor on whatever bargain states and societies happen to be able to strike with one another, but require instead critical reflexion, uncoerced agreement of rational agents via a shared process of deliberation and reasoned justification.there have also been important arguments in favour of creating global institutional frameworks which widen the boundaries of the dialogic community. Even after assuming the presence of the multiple voices, the location of a stable and shared moral vocabulary and some degree of institutional stability, one still needs to ask about the conditions of effective political agency. Within domestic society, Habermas is ambiguous as to how far the discourse principle requires changes merely in procedures of bargaining or changes to the underlying balance of bargaining power itself. But however, we might think about power within domestic society, the conditions of global society make it impossible to evade the issue of unequal bargaining power. The massive inequalities of power and condition; the continued occurrence of war and intervention and the continued willingness of major states to use military power as an instrument of state policy; the role of power in skewing the terms of the global capitalist economy and the close links that exist between globalization and inequality; and the deformity of many of the core institutions of international society-all these point towards the pressing need to consider the minimal political preconditions that might underpin a global moral community in which reasoned deliberation and uncoerced consensus could have begin to have been possible. Although political theorists are perhaps naturally tempted to argue from the ceiling down, the wholly different scale of inequalities that exist in the world politics should push us to think hard about the minimum preconditions for an acceptable international political process. At a minimum this might include: some acceptance of equality of status, respect, and consideration; some capacity for autonomous decision making on the basis of a reasonable information; a degree of uncoerced willingness to participate; a situation in which the most disadvantaged perceive themselves having some stake in the system; and some institutional processes by which the weak and disadvantaged are able to make their voice heard and to express claims about unjust treatment. Apart from concern with the suffering of the most disadvantaged, Rawls gives two very good reasons why we should be concerned with inequality: first, that a large gap between rich and poor ‘often leads to some citizens being stigmatized and treated as inferiors, and that is unjust’; and second, because of the ‘important role of fairness in the political processes of the basic structure of the society of peoples’. Yet, despite ample evidence that some peoples stigmatized and treated the inferiors and still more evidence of the massive unfairness of international political processes, Rawls draws only the feeblest of conclusions as to what needs to be changed globally in the interests of justice. We need to give far greater attention to the links between the political and moral cosmopolitan and to the possible principles of global political justice that might inform those links. A revalidation of process legitimacy and procedural justice is crucial for the development of a stable, effective, and legitimate international society and for the nurturing of meaningfully shared foundations for the discussion of global justice. In a very important sense, the ethical claims of international society rest on the contention that such a society continues to be the most stable set of globally institutionalized political processes by which norms and rules can be negotiated on the basis of dialogue and consent, rather than simply being imposed by the most powerful. There is very little reason for supposing that progress in the direction of moral accessibility, institutional stability, or more balanced and equitable forms of political agency is likely to be easy. It may not be possible at all. There are nevertheless good reasons for believing that it is adirection which continues to be of crucial importance. Understanding how the rope bridge may be spun across the canyon is central both to the chances of world order in the 21st century and to the promotion of greater global justice.
05. PROSECUTING THE INTERNATIONAL CRIMES:-
The threat of terrorism to international peace, security and development remains a pressing issue for the international community. The expansion of UN efforts on counter-terrorism has produced a unique tool, the UN global counter terrorism strategy adopted by the general assembly. The unanimous endorsement of this document marks an historic step, bringing together 192 member states to demonstrate their resolve and ability to defeat the scourge of terrorism. The strategy outlines a coordinated and comprehensive response to terrorism at national, regional and global levels, while ensuring the respect for human rights and the rule of law. It put forward a concrete plan of action to prevent and combat terrorism and to address grievances and underlying social, economic and political conditions conducive to the spread of terrorism. The strategy will have the greatest success if it is fully achieved. This goal can be achieved by strengthening the capacity of the member states and the UN system, and by seeking the involvement of the civil society and the private sector. The main responsibility for implementing the strategy falls on member states. Nevertheless, various secretariat departments, specialized agencies, and UN programmes and funds contribute to this important endeavor by assisting member states with their implementation efforts.
01. OF THE INTERNATIONAL LAWS IN GENERAL
02. TAKING THE STATE TO THE COURT
[A]. State Sovereignty
[B.] Changes And Continuity In The International System
[C.] The International Court of Justice (ICJ)
03. DEMOCRACY AND INTERNATIONAL SOCIETY
[A.] The global order
[B.] On Peace-keeping attempts of the UN
[C.] THE RULE OF LAW
04. PURSUIT OF JUSTICE
[A.] Institutional Authority
[B.] Political Agency
05. PROSECUTING THE INTERNATIONAL CRIMES:-
06. CONCLUSION
01. OF THE INTERNATIONAL LAWS IN GENERAL:-
TABLE OF CONTENTS:-
The international laws in the current aspects as viewed by most of the jurists round the globe are the laws that govern the relations of the nations with each other and the control over the individualism and freedom of these democratic as well as otherwise nations. the international laws are thought to be the governing machineries of the contemporary scenario in which the accountability of the nations for the most inhumane crimes being done by them are brought to the court. in the various books that talk of "taking the state to court" and the "mobilization" standards of the present F1 generations are being expressly interviewed. These scholar works tend to connote that the international laws are the tools that can limit the future dangers of the international insecurity and other problems of colonization etc. faced by most of the nations of the world. These nations are threatened by the superpowers for being forced to remove their ruling strategy. The United Nations has done several peacekeeping operations and has set various organizations that intend to store the peace and spirit of coordination and cooperation in the world. The theories of the international laws that are found to be dealing with the origin and the gradual development of the international laws have been asked a lot of questions as the race for hegemony is on the peak. Growing problems of racism and international terrorism are the new challenges being faced by the international laws today. This article presents various such aspects and put the suggestions for their solutions under one umbrella. The first question before everyone is this that "what are the international laws and what purpose do they serve for humanity and international peace?" This is the most critical question that corresponds to the enforcement of international and the limits of the international courts of justice being determined. We know that the function of the national laws is to regulate the behavior of the individuals but when we intend to talk of the international laws, the shoes of individuals are wore by the states. What if the international laws are the vanishing point of the world? It is well known to the students of the international laws that the primary function of the international law is to regulate the conduct of the states while on the other hand the national laws intend to regulate the conduct of the individuals. If we examine the contours on which the body of international law is explained we could easily derive the conclusion that most of the allegations that are imposed upon the rule of international laws are concerning their applicability or jurisdiction in one way or the other. Thus the international laws are to be made more binding and the forces that provide sanctioning power to such laws are to be extending to ensure the desired obedience. The identity of the international laws another such aspect that is necessary to limit the province of international laws. The state and non-sate actors are also the key aspects that correspond to the applicability of the international laws. We here mean the kinds of acts performed by the international superpowers and other small newly independent states. In various cases of hegemonic expansion and colonialism, it could be traced that the war-crimes and crimes against humanity are recorded.
02. TAKING THE STATE TO THE COURT
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In the contemporary growth of the international law, the growing awareness among the people of the various countries has led to the introduction of the concept of public interest litigation which has increased and widened the opportunities that even the states could be brought under the jurisdiction of the courts. In a study by the German philosopher "Hans Dembowski", it has been concluded that the growing political unfairness and other political reasoning have led to the introduction of Judicial Activism which has led to the growth of the power and abilities accompanied with the authoritativeness of the judiciary. International laws deal with the sociology of governance and in this respect connote to the division of power between the administrative and judicial branches of the government and their interaction with society as a whole in the particular cases that have been studied. The ongoing, excited media debate about the public interest litigation and judicial activism makes this evident. This function has typical stand point in certain countries of the world. The international arena on which various countries are brought on the same standard in the international court are is seemingly an attempt to ensure fairness and security in the international contour. Let us have a look over the two important aspects that have been the focus of study in the international society.
[A]. State Sovereignty
Sovereignty, for the past several centuries, has been the foundation of interstate relations and the world order. The concept- defined as the independent and unfettered power of a state in its jurisdiction-lies at the heart of the customary international law and the UN charter. It remains both an essential component of the maintenance of international peace and security and a defense for weak states against the strong. At the same time, the concept has never been as inviolable, either in law or in practice, as a formal legal definition might imply. In his 1992 An agenda for peace, UN secretary general Boutros Boutros-Ghali pronounced that the theory of sovereignty never matched the reality. In exploring why the westphalian sovereignty is continuously ignored or violated, Stephen Kraser has noted straightforwardly that "organized hypocrisy is the normal state of affairs. Sovereignty has routinely been violated by the powerful. In today’s globalizing world, it is generally recognized that cultural, economic influences neither respect borders nor require entry visas in both powerful and the powerless countries. The concept of state sovereignty is well envisaged in the legal and the political discourse, but territorial boundaries have come under the stress. Not only technology but also communications have made the boundaries permeable, but the political dimensions of the internal disorder and suffering often can result in wider international disorder. The initial purpose of this discussion is to set out the scope and significance of state sovereignty as a foundation on which to explore the contemporary debates about intervention. The literature on this subject is vast and contentious. As one legal analyst accurately summarizes:
Few subjects in the international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopedia of Public International Law as "the most glittering and controversial notion in the history, doctrine and the practice of the international law." On the other hand, Henkin seeks to banish it from our vocabulary and others call it " a word that has emotive quality lacking meaningful specific content". There is little neutral ground when it comes to sovereignty.
State sovereignty denotes the competence, independence and legal equality of the states. The concept is normally used to encompass all matters in which each state is permitted by international law to decide and act without intrusions from the other sovereign states. The scope of freedom of choice in these matters is not unlimited; it depends upon developments in international law and in international relations. The current foundations of the international law with regard to sovereignty were shaped by the agreements concluded by the European states as part of the treaties of Westphalia in 1648. the 1993 Montevideo Convention On Rights and Duties of States spells out the following main essentials: a permanent population, a defined territory, a functioning government, and the ability to enter into relations with the other states. The Montevideo definition includes both empirical (population and effective government) and juridical (borders and independence) components. There is a controversy regarding the accurate sovereignty of the states in Africa which has been the problem in the enforcement of the principles of the convention. These states are sovereign de jure but not de facto. As a hallmark of statehood, the territorial sovereignty is a must in the international system. An act of aggression is unlawful for two reasons: it undermines the international order, and states have exercised their sovereignty to outlaw war in the UN charter. The failure or the weakening of the state capacity brings tragedies and international insecurity. In sum, sovereignty is the key constitutional safeguard of the contemporary international order. Despite the pluralisation of the international relations resulting from the proliferation of the non-state actors which is evidenced by globalization, democratizationand privatization worldwide- the sate remains the fundamental guarantor of human rights locally as well as building block of international society.
Critical Issues
Instead of the heavy recommendations on the maintenance and enforcement of sovereignty among the states, this constitutional aspect of every nation is subject to limitation in the statements of the United Nations which have dealt heavily upon the matters concerning the world peace and a definite civil order in the international community. These limitations are as described under:-
Firstly, the charter of the United Nations contains collective international obligations for the maintenance of international peace and security. According to Chapter VII, sovereignty is not a barrier to Security Council action in response to " a threat to peace, a breach of the peace or an act of aggression."
Secondly, sovereignty may be limited by customaryinternational law and treaties. States are responsible for their international obligations, and therefore sovereignty cannot be an excuse for not performing the duties to which they have agreed sovereignty thus carries with it responsibilities to protect the persons and property, as well as to regulate political and economic affairs. Sovereignty cannot shield internal violations of Human rights that contradict the international obligations. It has been evident in the pages of history that in a no of cases, the Security Council endorsed the use of military force for the protection of the populations in the states which were caught in the throes of war.
[B.] Changes And Continuity In The International System
Limits to the sovereignty are widely accepted-its erosion by economic, cultural and environmental factors, for example, or by customary law and voluntarily agreed treaty obligations. But Annan’s assertion of popular sovereignty was a far more radical challenge. It joined three other threats to traditional notions of state sovereignty that arose in the 1990s and are relevant for our consideration of humanitarian intervention: the right of self-determination, a broadband conception of international peace and security; and the collapse of state authority. In spite of significant change, the international system reflects substantial continuities: in centrality of state decision making and the lack of any changes overriding central authority. But situating the nature of changes and continuities is the task of political analysis and judgment. However, after the end of the cold war, these situations changed to a great extent. Firstly, the soviet union became a superpower in which Russia led the legal status of USSR, including a permanent seat on the Security Council, but 14 other states were created by the implosion of the former soviet union. Shortly, thereafter, Yugoslavia broke up into six independent states, with Serbia and Montenegro later forming the republic of Yugoslavia. Contemporary politics in developing countries is conditioned by the legacy of colonialism. The second challenge is that the broadening interpretation of threats to international peace and security, the charter’s only enshrined license to override the principle of noninterference. The third challenge was to the traditional interpretations of the sovereignty has arisen because of the incapacity of some states to exercise effective authority over their authorities and populations, a topic that is dealt extensively by the international community. For these states sovereignty is a legal fiction which never matches to reality. The political vacuum leads to the nonstate actors taking matters into their own hands and is usually accompanied by the forced displacement of the people. The United Nations confronts the same constraints today as the diplomats and politicians have since time immemorial, and certainly since the beginning of the modern efforts at the multilateral cooperation in the 19th century.
[C.] The International Court of Justice (ICJ):-
The international court of justice even though working for the enforcement of the principles behind the objective of maintenance of peace among the states of the world have been posed by various questions that are the critical areas of thought that concern the epistemology behind the working of the international courts. The states which are prosecuted in the court suffer from various discriminations and differentiations. The trials that are governed or were carried out at Nuremberg etc. follow the traditional principles i.e. TRC Act, 1995. This method has been given the name "Victor’s Justice". The victor prosecuting the accused in his own sort of understanding and reasoning is clearly presenting the breaking of the basic norm of the law that "nobody could be a judge in his cause". This method of trial was applied in the Saddam’s trial when USA attacked it after it had the security threats from Iraq that it possessed nuclear weapons of mass destruction. The differentiation and the discrimination which has been done against Saddam have been, clearly witnessed by the world that dreams of making a new world order that involves the concept of Justice. The influence of Gandhian thought is clearly visible in the TRC Act. The basic problem is that most of the overwhelming systems of justice of the contemporary world are penal, and having very less imports of the impressions of peace. There the troublesome atmosphere prevails in the international level. It imposes stress upon the mind that what does the phrase "Taking the state to court" means. The solution is thus provided:
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The concept of collective security of the nations should be enforced and that the violence as the means of achieving objectives should be destroyed to the maximum extent possible.The inter-state relations should be given more importance and the suppression of the voice of the mobilized groups should not occur. The concept that could prevent a party from giving statements should be abandoned. The method od prosecution called as "victor’s justice" should be deleted because that leads to the serious violation of the principle of "audi alterum partum" and the judgment seems to be biased. The limits over the application of the international laws and the scope of the obedience of the same should be expanded. The international laws/treaties/conventions should be accompanied with more degree of sanction. The retributive nature of punishment should be overcome and new strategies to make the international laws more humane should be attempted.There should be prosecution of the states that interfere with the enjoyment of the right of sovereignty of the other states without any firm and reasonable cause.Besides prosecuting a state for the violation of treaty or other humanitarian principles, the focus of the prosecution should be to derive a method for the solution of the problem. The same may include the support of fellow members of the UN.
03. DEMOCRACY AND INTERNATIONAL SOCIETY
Democracy as a norm and the promotion of democracy as an activity has become far more deeply embedded within international society in various ways. In the first place, there has been an enormous expansion in the involvement of the UN and regional organization in elections. Electoral assistance has become an established part of UN activities and has also led to development of a broad transnational and trans-governmental network of electoral assistance, party support, and monitoring.second, external actors have routinely become involved in democracy promotion as a result of the expansion in the number and scope of peacekeeping operations, whose multi dimensional character came in many places to include human rights and democracy as well as demilitarization, refugee protection and state-building. In the cases of direct international administration of territory, the assumption of the sovereign power involved both transitional administration and also democratic regime-building. Third, democratic membership criteria have been established in two regions, and, in the case of Europe, democracy, human rights, and minority rights have all played a central part of the process of EU enlargement, the conditionality policies of the EU, and its extensive programme of member-state building. Finally, an increasing body of academic writing has opened up the idea of a legal right to democratic governance. The normative expansion of the international society to include democracy was also driven by political factors. Although there were references to ‘democratic’ rights in UN Declaration, the conditions of the cold war meant that formal incorporation of political democracy into the human rights system was politically impossible. This changed as a result of the wave of transitions from authoritarian rule in Southern Europe and the developing world in the late 1970s and 1980s; and the fall of communism in Eastern Europe and the Soviet Union; by the liberal self-confidence that followed the ending of cold war and the belief that liberal democracy and free markets were sweeping the world; and the consolidation of the place of democracy in US foreign policy. Two broader shifts need to be highlighted, both of which link academic analysis and political perceptions. The first concerns the progress of democratic change and the possibilities of democratization. During the cold war, Western governments were suspicious that the political change would be destabilizing, bringing to power either those who would ally themselves with the Soviet Union or who would challenge western economic interests. Democratization then carried with it some counter-hegemonic potential. It is also widely held in Western capitals and amongst the private sector that authoritarian governments were most suited to promoting economic development. Many academicians argued that, in any case, democracy required a wide range of ‘prerequisites’ that were lacking in many postcolonial societies. The wave of transition that began in Southern Europe and Latin America in the late 1970s ushered in a striking reassessment: democratization becomes the norm rather than the exception; the exception is of generally forward movement; and the democratization appears to be easier and less problematic than had been previously believed. A post-cold war world meant that unstable and potentially oppositional regimes could no longer look to the Soviet Union. And a globalized world meant that economic nationalism was no longer and option. The trade-offs between uncertain democratization, security interests, and economic preferences were apparently easing and a strong sense of difficulties of democracy gave way to an increased sense of ‘possiblism’. The conversion by the mid 1980s ofUS foreign policy was retold through a different lens that stressed the country’s historic mission to extend and promote democracy. The other important shift in thinking reflected the allegedly proven link between democracy and peace. Democratic peace theory builds on long tradition writing on international relations, often associated with Kant. However, it only formed one part of Kant’s political thought and had already become a liberal commonplace by the end of the 18th century. Other precursors of modern DPT include Karl Deutsch’s writing in the 1950s on security communities- groups of states in which there is real assurance that the members of that community will not fight each other physically but will settle their disputes in some other way. Overlooked or neglected by many studies of war causation, it became a major theme both of academic writing on international relations and of political and public debate on the nature of the post-cold war international order. Theorists argue that two sets of casual factors are important in explaining the democratic peace. In the first place, the structural constraints of democratic institutions and of democratic politics make it difficult or even impossible for war-prone leaders to drag their states into wars. They also stress the joint effect of these democratic constraints, together with the greater openness and transparency of liberal democracies. If both sides are governed by cautious, cost-sensitive politicians that only use force defensively, then conflict is far less likely to occur. Second, democratic peace theorists highlight the importance of normative mechanisms. Liberal and democratic norms include shared understandings of appropriate behavior, stabilize expectations of the future, and are embedded in both institutions and political culture. Rule-governed change is a basic principle; the use of coercive force outside the structure of rules is prescribed; and trust and reciprocity, rule of law are at the heart of democratic politics. From this view, then, the democratic peace is produced by the way in which democracies externalize their domestic political norms of tolerance and compromise into their foreign relations, thus making war with others like them unlikely. The democratic peace hypothesis rests on two claims: (a) that democracies almost never fight each other and very rarely consider the use of force in their mutual relations and (b) that other types of relations are much more conflictual including democracies’ interactions with non-democracies. The claim is almost always made in probabilistic terms. Few claim that it is a deterministic law. It is not a general theory since it is agnostic or at least much less certain about the relationship between democracies and non-democracies. But it provides some grounds for liberal optimism, even if only within the democratic zone. If true, it holds out the possibility that the homogenization of domestic political systems could transform global political order- in marked contrast both to traditional realist accounts of world politics and pluralistic accounts of international society. The main debates surrounding the democratic peace and the main issues raised by critics and skeptics include: (a) the reliability of the statistical evidence for the democratic peace, especially in the pre 1945 period; (b) the existence of alternative casual logics, especially in explaining regional clusters of peaceful states as in Europe or the Americas; (c) the difficulties of defining key terms in the theory, especially war and democracy; (d) and the problems raised by democratization processes and the evidence that, whilst fully consolidated democracies could be peaceful, democratizing states, specially in unstable areas, may be more conflict-prone than authoritarian regimes. Here are certain important issues noted from the speech (annual report) by the UN secretary general which was delivered in the General Assembly in 2007:--
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Despite these positive developments, however, efforts to expand democratic governments still face significant challenges. Many countries continue to limit fundamental freedoms, and governments face problems of the public sector efficiency, transparency and accountability. Women are playing a growing role in building democracy, but in the top leadership positions their numbers remain limited. Indigenous peoples and marginalized groups are also often excluded from power. Moreover, without vigorous participation democratic participation, official accountability, and strengthened institutional capacity, governments are unlikely to deliver on their commitments to achieve the millennium declaration, including the millennium development goals, and other internationally agreed development goals.The Un democracy fund has begun to make its mark. During first year of activities it funded 122 projects out of 1300 proposals submitted. The projects are implemented in partnership with diverse national actors. The fund’s activities encouraged transparency in government and supported national human rights institutions, civic education, electoral systems and processes, as well as political parties. There was a major focus on the participation of the youth and women in decision-making, 62 % of the submitted proposals containing a significant gender component and 37% explicitly promoting women’s rights and gender equality.The sixth international conference of new or restored democracies, held in Dolha from 29 October to 1 November 2006, reaffirmed a common commitment to democratization on the part of 100 governments, 69 parliaments and 97 civil society organization which took part. An advisory board and a nucleus secretariat were established to assist the chair of the conference in implementing the decisions of the conference.As countries enter the post-conflict phase, the focus of the UN assistance often shifts to consolidating the experience gained by newly created electoral institutions. An example is Liberia, where in September 2006 the UN mission in Liberia handed over the responsibility for long-term UN electoral assistance to UNDP.Meanwhile, the volume of technical electoral assistance to member states continued to increase. More than 30 technical assistance projects were launched in 2006, mainly through UNDP. United nations electoral assistance is often provided, moreover, in complex political environments. In the case of Mauritania, following the advice of the united Nations, the national authorities put specific measures in place that contributed to the credibility of a constitutional referendum and parliamentary and local elections in 2006, and presidential elections in 2007.Although the past year saw the scaling-down of several large and complex electoral operations, including operations in Afghanistan, Iraq and Liberia, the UN made a major contribution to the holding of historic parliamentary, presidential and provincial assembly elections in July and October 2006 in the democratic republic of the CongoThe United Nations continues to foster democracy and good governance, not only through its assistance in the holding of credible elections, but through a wide range of activities to promote democratic institutions and practices. These include support for independent judiciaries and parliaments, strong national human rights policies and institutions, transparency and accountability in government, civic education, free expression, and vibrant civil societies with opportunities for participation. In this regard, electoral processes are increasingly considered not as an end in themselves but as a bridge to peace building and sustainable development. The implementation of the United Nations convention against corruption has become a special priority for the UN system in improving the quality of governance in its member states.
Review:-
01. The situation in Iraq
[A.] The global order:-
[A.] The global order:-
01. The situation in Iraq
is causing widespread concern in the international community. The future of Iraq is vital to the stability of the region and the world. During the past year, the UN worked to foster regional engagement through initiatives including the international compact with Iraq and continued to promote national reconciliation and consensus-building, in particular through the support to the constitutional review process. UN will continue to assist Iraq through the challenges ahead. In Lebanon, the aftermath of 2006 war saw political divisions deepen, rendering more difficult the fulfillment of various UN mandates in support of the Lebanese sovereignty, territorial integrity and political independence. In the Middle East, the UN continues to increase the peaceful settlements.
02. Concerns about Asia
:- in Nepal, progress was made towards resolving the conflict and its underlying causes; the UN mission in Nepal was instituted at the request of the Nepalese parties to assist in the election of the constituent assembly and the political transition.
03. Northern Uganda
:- the special envoy of the UN for the lord’s resistance army affected areas worked with the regional actors to reinvigorate peace talks. A joint African Union-UN initiative was launched to advance the political process in Dafur. There is active representative of UN in Somalia for the purpose of national reconciliation.
04. Myanmar and Fiji
:- Asia also saw the greater use of secretary general’s good offices, with renewed high level dialogue between the UN and Myanmar, and the dispatch of an inter-agency fact finding mission to fiji following the coup in December 2006.
[B.] OnPeace-keeping attempts of the UN
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At the beginning of 2006, UN peacekeeping supported 18 peacekeeping operations and 13 other field missions and offices, involving approximately 85,000 deployed personnel. By august, 2007, this number has got considerably increased.
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Among the myriad challenges faced by the UN peacekeeping during 2006 was the situation in Sudan and its spillover effects into Chad and the Central African Republic. The UNMIS has been to monitor the peacekeeping agreement of 2006. Another challenge facing UN peacekeeping operations was the Kosovo status talks and the eventual transition of the UN interim administration mission in Kosovo.
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The UNIFIL continued to cooperate closely with the Lebanese armed forces with a view to consolidating the new strategic military and security environment in the southern Lebanon, and to prevent violations of the blue line and maintain the cessation of the hostilities. UNIFIL has created has created a stable operational area as a basis for international efforts to revitalize the political process leading to a permanent ceasefire.
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The growing number of similar incidents require United Nations intervention demonstrates the central importance of control over security institutions to build a legitimate state. Enhancing national capacity and institutions particularly in the security sector is a long term process involving political commitment on the part of national stakeholders and the support of international community, especially donors. A critical aspect of this process is fostering national and local ownership of reforms intended to limit the role of the military in internal security, ensure that all security forces are under the civilian control, and meet basic standards of accountability, transparency and respect for human rights. The operational record for strengthening the capacity of national security institutions has been mixed. In Sierra Leone there has been a measure of national ownership for reforming the military and the police, although UN is concerned about its self sustainability in the absence of the continuing and long-term international technical and financial support. Similar problems faced Liberia and Congo, which are in the early stages of security sector reform. Security sector reform has been also less successful in Afghanistan, where the war against the Taliban and other anti-government elements has forced the security agencies to play a larger-than-ideal role in the attempt to provide internal security.
[C.] THE RULE OF LAW:-
The rule of law is a fundamental principle on which the United Nations was established. The United Nations goal continues to be a community of nations operating according to rules that promote human rights, human dignity and the settlement of the international disputes through peaceful means. International criminal justice, a concept based on the premise that the achievement of justice provides a firmer foundation for lasting peace, has become a defining aspect of the work of the organization. The international tribunals for Yugoslavia and Rwanda continued to conduct the trials of those accused of war crimes, crimes against humanity and other war crimes. The extraordinary courts charged the defendant for the crimes against humanity and placed him in detention. The courts for Sierra Leone commenced the trials of Charles Taylor and rendered two historic judgments that convicted five defendants for war crimes. In March, the Security Council requested UN to negotiate with the government of Lebanon an agreement aimed at establishing a tribunal to bring justice those accused of the attack that killed the former prime minister of Lebanon, Rafiq Hariri. The Security Council took resolution on 30 May, 2007 for establishment of special tribunal in Lebanon.in order to better the coordinate working of these institutions, at the end of 2006, the report entitled ‘Uniting our strengths: enhancing the United Nations support for the rule of law’ announced the establishment of a rule of law coordination and resource group. The group consists of major rule of law assistance providers in the UN system, who met to ensure that programmes are carried out in a coherent manner and are of high quality commensurate with the need of those requesting the support.
04. PURSUIT OF JUSTICE:-
One of the attractions of an old fashioned state-based pluralism and of a very thin view of international society was precisely that it appeared to offer a way of dealing with diversity and disagreement. If the diversity and the value are such important features of international life, then we should seek to organize global politics in such a way as to give groups scope of the for the collective self-government and cultural autonomy in their own affairs and to reduce the degree to which they will clash over how the world should be ordered. Equally, if the dangers of predation by the powerful are deep-rooted, even if not structurally determined, then we should continue to place a heavy emphasis on sovereignty and on the balance of power. In addition, the skeptical pluralist is attracted to the idea that it might also be possible to develop a cross-cultural consensus over the minimal rules around which a such a limited international society might be built. Hence the attraction to the international society writers of Hart’s notion of a minimum content of natural law built around Hobbesian assumptions. Hence, too null’s emphasis on the ‘elementary conditions of social life’, his attempt to isolate the elementary primary, and universal goals of the society of states; and his analytical effort to link these goals to the historical institutions of the international society. Negotiating the terms of cooperation is certainly a quintessentially political exercise. But it is also an inherently normative one both because acting in the world requires that we think about morally desirable change and because moral debate forms one part of how that political exercise will unfold. As noted in many places in this book, debates on global justice within the political theory and political philosophy have increased enormously in scope and sophistication. There is an increasingly rich array of potential answers to the problems of global political theory, including those related to just war, to humanitarian intervention, distributive justice, and to global democracy. The fragility of global political order makes it unconvincing to see this challenge as a second-order issue of moral methodology.
[I.] Institutional Authority:-
There are three major reasons why institutions are so important: as a means of helping to secure the framework for mutually intelligible moral debate; as a way of securing the stable implementation of shared rules; and in terms of the potential for the progressive development of a global moral community. In the first place, if we are looking for cross-cultural universals, a good case can be made for starting with process and with near-universality of ideas about fairness of process: hearing the other side, providing arguments for one’s actions, finding some mechanism for adjudicating between conflicting moral claims. All stable societies have to find some agreed process and procedure by which more moral conflicts can be adjudicated and managed, if not resolved. Within world politics the challenge is more daunting, given the diversity and divisiveness of sentiments, attachments, languages, cultures and ways of living, combined with massive inequalities of power, wealth, and capacity. Stuart Hampshire has suggested that there is an irreducible minimum to notions of just process. Second, institutions are also necessary because rules have to be applied. The cry of the liberal solidarist or the cosmopolitan moralist is that we need new rules to meet new circumstances. Terrorism requires that international society rethink rules relating to self-defence and the use of force. The degree to which international society is affected morally and practically by the humanitarian catastrophe means that we need new rules on humanitarian intervention. There are good arguments in favour of both these propositions. But it is a myth that, for example, a new rule on humanitarian intervention would obviate the need for the institutions and institutional debate. Even if the rule is agreed and even if the background criteria for evaluation are agreed, all rules have to be interpreted and applied. The new rule of humanitarian intervention will not avoid the need for that rule to be applied to the circumstances of a new case. On the one side, this inevitability raises the fundamental political issue: who is the body that has the authority to interpret and to apply the rule? There have been certain proximities that have been put-forth by Dallymayr. On the other side, we are faced by problems intrinsic to the idea of interpretation and application. Thus cultural and historical complexity makes it difficult to read off judgments in particular cases from general or universal moral laws and there is good reason for supposing that a great deal o the debate over values and ethics in the twenty-first century will necessarily have to be context-rich and interpretative. At one level, this might simply mean that universal principles need to show sensitivity to local context. But the challenge is deeper. Thus Tully follows criticizing in those who demonstrate a contemptuous attitude to the particular case. In terms of institutionalizing global order such a position lends support to a form of practical reasoning that is constantly navigating between the general rule, whether legal or moral, and it’s always contestable application to the facts and circumstances of a particular case. Third, institutions matterbecause of their potential for self-reinforcing dynamic. Once created, institutions act as platforms for the ongoing normative debates, or the mobilization of concern and for debating and revising ideas about how the international society should be organized. However much social scientists insist on analyzing international institutions solely in terms of the provision of international public goods, normative issues cannot be kept out of the picture. In addition, there is an inherent tendency for all normative systems to expand and develop, and to enmesh actors within certain patterns of discourse, reasoning, and argumentation. Finally, as we have seen, there are good reasons for believing that international institutions have acted as powerful agents for the diffusion and socialization of norms. Assessing the very mixed empirical record of actually existing institutions can have important implications for our views of global justice. Thomas Nagel, for example, has developed a political conception of global justice. Drawing on Hobbesian traditions, he argues that justice arises amongst those jointly subject to coercive authority. His assessment of where international institutions and global governance are ‘for the moment’ is that they fail to meet a crucial test, namely, they are not collectively enacted and coercively imposed in the name of all the individuals whose lives they affect. Yet this view of justice places too much weight on the difference between coercive and non-coercive situations; and, more importantly, underplays the extent of the changes that have in fact taken place in the density of international institutions, in the extent to which they do in tact exercise power and can be said to be co-authored, and in the relationship of both states and individuals to those institutions.others who either deny the possibility of international distributive justice or see it only in highly constrained forms also place great emphasis on the absence or weakness of international institutions or other cooperative arrangements. Thus, society’s main political, social and economic institutions and how they fit into one unified system of social co-operation’ determine the basic structure and govern ‘the initial focus’ of how to think about the matters of justice. But the emphasis here should be on ‘initial’ since Rawls also recognizes the possibility of reinforcing change. When writing about the domestic society, there is a strong sense that the institutions play a central role in moving from self-interested cooperation towards full overlapping consensus. They have important socializing influences on the citizens and Rawls presents a psychological account of how people come to accept and internalize principles of justice. Equally- when looking at international life- change, evolution, and learning are self recognized. ‘The idea of a reasonably just society of well-ordered peoples will not have an important place in a theory of international politics until such peoples exist and have learned to coordinate their actions in wider forms of political, economic and social cooperation. A global moral community in which claims about justice can secure both authority and can be genuinely accessible to a broad swathe of humanity will be one that is built around some minimal notion of just process, that prioritizes institutions that embed procedural fairness, and that cultivates the shared political culture and the habits of argumentation and deliberation on which such institutions necessarily depend. As Judith Shklar puts it; ‘procedural justice is not merely a formal ritual, as is often charged. It is a system that in principle gives everyone some access to the agencies of rectification and, more significantly, the possibility of expressing a sense of injustice to some effect, at least occasionally. It is important here to avoid too sharp distinction between a consent-based view of international legal legitimacy and a justice based view. Procedural legitimacy is not simply about state consent. On the one hand, consent itself may be moderated and mediated by the complexities of legal process, even without disappearing entirely from the international legal order. On the other hand, there are other important values located within the processes of international law. This may be understood in terms of the old arguments about the ‘inner morality’ of law and the rule of law. Or it may involve principles of public law that can be employed to guide international and global law-making. Or, most generally, it may simply involve an insistence that the justification of a position or a case follows an articulated, discernible, and coherent pattern of legal argument that draws on analogies, precedents, and the principles that are compatible with already widely accepted values. Finally, law can be viewed as a sociologically embedded transnational cultural practice in which claims and counterclaims can be articulated and debated and from which norms can emerge that can have at least some determination and argumentative purchase. Law, then, can play a communicative and epistemic role, shaping the conditions within which claims, including justice claims can be made and debated. The modern day Grotian will be inclined to stress the ongoing, unstable and subtle interplay between the sources of law and legal process on the one hand and the content of the law and o legal rules on the other.
[II.] Political Agency:-
That we should on the institutions, on negotiation, and on dialogue and deliberation is hardly an original suggestion. Albeit with significant variation, many have been tempted to go down a broadly Habermasian road-stressing the extent to which the terms of a just global order cannot be based on coercion nor on whatever bargain states and societies happen to be able to strike with one another, but require instead critical reflexion, uncoerced agreement of rational agents via a shared process of deliberation and reasoned justification.there have also been important arguments in favour of creating global institutional frameworks which widen the boundaries of the dialogic community. Even after assuming the presence of the multiple voices, the location of a stable and shared moral vocabulary and some degree of institutional stability, one still needs to ask about the conditions of effective political agency. Within domestic society, Habermas is ambiguous as to how far the discourse principle requires changes merely in procedures of bargaining or changes to the underlying balance of bargaining power itself. But however, we might think about power within domestic society, the conditions of global society make it impossible to evade the issue of unequal bargaining power. The massive inequalities of power and condition; the continued occurrence of war and intervention and the continued willingness of major states to use military power as an instrument of state policy; the role of power in skewing the terms of the global capitalist economy and the close links that exist between globalization and inequality; and the deformity of many of the core institutions of international society-all these point towards the pressing need to consider the minimal political preconditions that might underpin a global moral community in which reasoned deliberation and uncoerced consensus could have begin to have been possible. Although political theorists are perhaps naturally tempted to argue from the ceiling down, the wholly different scale of inequalities that exist in the world politics should push us to think hard about the minimum preconditions for an acceptable international political process. At a minimum this might include: some acceptance of equality of status, respect, and consideration; some capacity for autonomous decision making on the basis of a reasonable information; a degree of uncoerced willingness to participate; a situation in which the most disadvantaged perceive themselves having some stake in the system; and some institutional processes by which the weak and disadvantaged are able to make their voice heard and to express claims about unjust treatment. Apart from concern with the suffering of the most disadvantaged, Rawls gives two very good reasons why we should be concerned with inequality: first, that a large gap between rich and poor ‘often leads to some citizens being stigmatized and treated as inferiors, and that is unjust’; and second, because of the ‘important role of fairness in the political processes of the basic structure of the society of peoples’. Yet, despite ample evidence that some peoples stigmatized and treated the inferiors and still more evidence of the massive unfairness of international political processes, Rawls draws only the feeblest of conclusions as to what needs to be changed globally in the interests of justice. We need to give far greater attention to the links between the political and moral cosmopolitan and to the possible principles of global political justice that might inform those links. A revalidation of process legitimacy and procedural justice is crucial for the development of a stable, effective, and legitimate international society and for the nurturing of meaningfully shared foundations for the discussion of global justice. In a very important sense, the ethical claims of international society rest on the contention that such a society continues to be the most stable set of globally institutionalized political processes by which norms and rules can be negotiated on the basis of dialogue and consent, rather than simply being imposed by the most powerful. There is very little reason for supposing that progress in the direction of moral accessibility, institutional stability, or more balanced and equitable forms of political agency is likely to be easy. It may not be possible at all. There are nevertheless good reasons for believing that it is adirection which continues to be of crucial importance. Understanding how the rope bridge may be spun across the canyon is central both to the chances of world order in the 21st century and to the promotion of greater global justice.
05. PROSECUTING THE INTERNATIONAL CRIMES:-
The threat of terrorism to international peace, security and development remains a pressing issue for the international community. The expansion of UN efforts on counter-terrorism has produced a unique tool, the UN global counter terrorism strategy adopted by the general assembly. The unanimous endorsement of this document marks an historic step, bringing together 192 member states to demonstrate their resolve and ability to defeat the scourge of terrorism. The strategy outlines a coordinated and comprehensive response to terrorism at national, regional and global levels, while ensuring the respect for human rights and the rule of law. It put forward a concrete plan of action to prevent and combat terrorism and to address grievances and underlying social, economic and political conditions conducive to the spread of terrorism. The strategy will have the greatest success if it is fully achieved. This goal can be achieved by strengthening the capacity of the member states and the UN system, and by seeking the involvement of the civil society and the private sector. The main responsibility for implementing the strategy falls on member states. Nevertheless, various secretariat departments, specialized agencies, and UN programmes and funds contribute to this important endeavor by assisting member states with their implementation efforts.
01. OF THE INTERNATIONAL LAWS IN GENERAL
02. TAKING THE STATE TO THE COURT
[A]. State Sovereignty
[B.] Changes And Continuity In The International System
[C.] The International Court of Justice (ICJ)
03. DEMOCRACY AND INTERNATIONAL SOCIETY
[A.] The global order
[B.] On Peace-keeping attempts of the UN
[C.] THE RULE OF LAW
04. PURSUIT OF JUSTICE
[A.] Institutional Authority
[B.] Political Agency
05. PROSECUTING THE INTERNATIONAL CRIMES:-
06. CONCLUSION
01. OF THE INTERNATIONAL LAWS IN GENERAL:-
i am a student of Dr. Ram Manohar Lohiya National Law University, Lucknow and i am the editor- in- chief of the ezine articles magazine of New York, USA and currently i am working as a research associate for the indian society for international law, New Delhi, a body of the government of India. i have published 11 articles and have submitted some papers for scrutny to the oxford universitty as well as to the yale law school.
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