Exm - 21399 (3) - International Law
Exm - 21399 (3) - International Law
Exm - 21399 (3) - International Law
customary international law picked up momentum after the Second World War with
the formation of the International Law Commission (ILC), under the aegis of the
United Nations.
Chennai - 020
1. Write an essay on the origin of International Legal order and its nature.
The system of public international law may be described as ‘consisting of a body of
laws, rules and legal principles that are based on custom, treaties or legislation and
define, control, constrain or affect the rights and duties of states in their relations with
each other’. Public international law has increased in use and importance vastly over
the twentieth century, due to the increase in global trade, armed conflict,
environmental deterioration on a worldwide scale, awareness of human rights
violations, rapid and vast increases in international transportation and a boom in
global communications.
Public international law has three principal sources: international treaties, custom, and
general principles of law. In addition, judicial decisions and teachings may be applied
as "subsidiary means for the determination of rules of law". International treaty law
comprises obligations, states expressly and voluntarily accept between themselves in
treaties. Codified customary law is made the binding interpretation of the underlying
custom by agreement through treaty. For states not party to such treaties, the work of
the ILC may still be accepted as custom applying to those states.
Public international law establishes the framework and the criteria for identifying
states as the principal actors in the international legal system. International law is
concerned with the treatment of individuals within state boundaries. There is thus a
comprehensive regime dealing with group rights, the treatment of aliens, the rights of
refugees, international crimes, nationality problems, and human rights generally. It
further includes the important functions of the maintenance of international peace and
security, arms control, the pacific settlement of disputes and the regulation of the use
of force in international relations. Even when the law is not able to stop the outbreak
of war, it has developed principles to govern the conduct of hostilities and the
treatment of prisoners. International law is also used to govern issues relating to the
global environment, the global commons such as global communications, and world
trade.
According to international law, all states are sovereign and theoretically equal. As a
result of the notion of sovereignty, the value and authority of international law is
dependent upon the voluntary participation of states in its formulation, observance,
and enforcement. Although there may be exceptions, it is thought by many
international academics that most states enter into legal commitments with other
states out of enlightened self-interest rather than adherence to a body of law that is
higher than their own.
Breaches of international law raise difficult questions for lawyers. Since international
law has no established compulsory judicial system for the settlement of disputes or a
coercive penal system, it is not as straightforward as managing breaches within a
domestic legal system. However, there are means by which breaches are brought to
the attention of the international community and some means for resolution. For
example, there are judicial or quasi-judicial tribunals in international law in certain
areas such as trade and human rights. The formation of the United Nations, for
example, created a means for the world community to enforce international law upon
members that violate its charter through the Security Council.
Origin:
International law has developed historically and philosophically over many centuries,
in many cultures and a rudimentary system of international law existed even in
ancient societies. Persons from even the most diverse historical cultures sought to
relate to one another in a peaceful, predictable, and mutually beneficial way.
On this viewpoint one can refer to Neff’s ‘A short history of International Law’ in
Evans (2006), which traces the development of international law in many historical
traditions.
Neff persuasively contends that persons from even the most diverse historical cultures
sought to relate to one another in a peaceful, predictable, and mutually beneficial way.
He points out that Mesopotamia, northern India and classical Greece had three areas
of international law: diplomatic relations, treaty-making, and rules governing the
conduct of war. As these are still three major areas of international law, it establishes
the view that international law has long historical roots.
The sixteenth and seventeenth centuries constituted ‘the classical age’ of public
international law. The major scholar of that era was Hugo Grotius whose main work
was ‘On the Law of War and Peace’, published in 1625, and in which he further
developed the just-war theory and argued that the law of nations was distinct from the
law of nature. The purpose of the law of nations was to regulate the external conduct
of rulers. Up to the nineteenth century, international law had developed over
centuries, with its flowering in the classical age. Although Grotius might be known as
the chief architect of our modern international legal philosophy, the roots of his
scholarship are in the ancient natural law texts and developments of mercantile law in
the Middle Ages.
In this brief historical review, it can be seen that international law was developed over
many centuries and that the classical age of Grotius and the Spanish philosophers
might only be one stage in the continuing development of public international law that
continues into the twenty-first century. There continue to be divergent theories of
international law, which will inform future development of the subject.
Administrative Law
There are many different kinds of law systems that are present in today’s world that
vary depending on the cases, region, country, etc. Common law and equity are two
different types of law systems that are often confusing to many people that are not so
knowledgeable about law. Law is a very confusing field, with many variations,
ifs/buts, etc. The rules often change depending on the case and the surrounding
situation. Common law system is basically a system of laws that is made up of rulings
made in previous cases, while equity is a system that provides rulings after
considering every aspect of the case.
Common Laws are laws that have come about of been enacted based on court rulings.
These laws are developed based on rulings that have been given in older court cases.
Common laws are also known as case law or precedent. These rules can be written as
well as unwritten. In a common law justice system, the laws of a country depend on
the rulings or decisions of courts or other tribunals, where it is believed justice
prevailed.
The general principal of this system is that similar cases with similar facts and issues
should not be treated differently. If there is a dispute between laws, the authority or
precedent looks to past cases and must provide the same reasoning and decision that
was provided in the first case. The laws can also be altered and evolved based on the
circumstances. The judges also have the authority to create new laws or alter and
interpret older laws. Once the law has been altered or changed during the ongoing
case, the law will then be enforceable on all other cases henceforth with similar
evidence and situations. Many countries live in common law systems or mixed
systems.
Equity is a branch of law that was developed as a supplement to the strict statutory
laws that may provide too harsh punishments. In layman’s terms, equity is a part of
law that decides punishment on the basis of justice and fairness after looking at all
aspects of the punishment, including the motive of the accused. This system is enacted
whenever there is a disagreement to the application of common law. For example: If
stealing is a crime and is punishable by law, then anyone who steals is a criminal.
Now, if a person steals, they would automatically be punished. However, in equity
law, the judge would also take into consideration why the person stole, what was the
circumstance under which they accused felt the need to steal, etc.
Equity came around approximately 200-300 years after the development of the
common law system in England. The courts of law during that time were filled with
the enforcers of the king’s law and were trained to administer punishments that were
set in stone. However, any person that was not satisfied with the outcome of the law
courts in England, could appeal to the King for a lesser punishment. When the number
of appeal cases grew, the King forwarded this duty to his High Chancellors. The High
Chancellors were church clergymen and would usually take into consideration the
surrounding factors before making a decision. This court became known as the ‘Court
of Chancery.’ Following 17th century, the court of Chancery started appointing proper
lawyers instead of clergymen or nobles.
In modern times, both the courts have seemed to merge in many countries to create a
much fairer law system. However, in some countries, these courts are still separate.
The major differences between common law and equity exist in the type of solutions
that are offered by both. The court of law usually offers monetary solutions, while the
court of equity can offer the person to do something or not do something. For
example, let’s take a person who stole a car. In the court of law, the victim will more
commonly receive the monetary value of the car, while in the court of equity the
judge can tell the thief to return the property itself. In common law systems the
outcome is often same or similar to the outcome provided in previous cases, while in
equity the outcome can change depending on the circumstances of the situation.
Another major distinction between the two is the type of courts and the judges
available. In the court of law, a jury will be present to determine the outcome of the
case, while in equity court; there is only a judge present that will decide the outcome.
25 x 4=100 marks