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International Law
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INTERNATIONAL LAW
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International Law
Abstract
Scholars in international relations (IR) have come to widely agree that law matters with relations to world politics. The primary focus however has been public international law and international relations as the aspect of world politics. There are however other types of law that are equally important to international relations. Scholars however have made an effort to factor in other types of law that are crucial to transnational law –cross border activity of private actors. By focusing on all aspects of international law, IR scholars are able to get on the general trend from state centric approaches and concentrate on a more holistic analysis of world politics. This paper focuses on fields of law like foreign relations law and private international law d provides detailed explanation on how international law matters in world politics.
Introduction
There has been an interdisciplinary research on international law and international relations (IL/IR) regarding the development, operations, spread and the impact international legal norms have on agreements and institutions. International law comes from treaties, international customs and other general principles that can be traced to the world’s primary legal systems. Public international law governs state behavior. It is comprised of human rights law and international criminal law. Foreign relations law comprises the domestic legal state rules which govern domestic international law effect and making hence foundational to international law (IL). It is also made of domestic constitutional rules regarding military force and when a stare can apply extraterritorial law in the governing of transnational activity. Conflict of laws branches from private international law and governs how states decide transnational activity through the application of law, using courts in adjudication and whether states can enforce laws on decisions in another state’s domestic courts.
Foreign relations law
This is a state’s domestic law that governs its foreign relations. Foreign relations law for instance include a state’s use of military force, making treaties, the international law domestic effects and separating power with regards to foreign relations matters. This section focuses on three areas of foreign relations law. The domestic rules that govern: international law making and its eventual effects; use of military force on other states; extraterritorial application of domestic law in the governing of transnational activity.
International cooperation and the domestic legal foundations of IL
IL and domestic law are two deeply intertwined concepts. The domestic rules related to foreign relations law are foundational to IL hence foundational to cooperation founded on IL.
First, domestic law in a state governs the fundamental political processes regarding internally approving a treaty and the rules are varied cross-nationally. Domestic rules dealing with foreign relations law determine the type and number if domestic political individuals eligible for approving treaties with other states. As such, this makes domestic law foundational in international cooperation under treaties. These rules also guide the interpretation of treaties. The principles of treaty interpretation are also included in the Vienna Convention on the Law on Treaties. It is crucial that a sophisticated understanding of domestic and international practices ad rules be given importance for treaty interpretation by states. Domestic law has power in determining the domestic legal effect that IL has. This is the difference between dualist and monist systems that are noted by IR scholars. An example is in how domestic law determines the position that treaties take in the hierarchical order of types of laws. The steps, if any, that are beyond domestic treaty approval which need to be considered before a treaty can have a legal effect domestically are determined by domestic law. Cross national variation exists where some states directly incorporate treaties with domestic law whereas others require legislation for this to be accomplished. Finally, domestic law has an influence on general principles of law and customary international law creation and evolution. There are two required elements regarding customary international law. There need to be consistency between state practice putative rules as well opinion juris –legal obligation for such a rule to be followed. Domestic law serves as evidence to these two elements. General principles of law are a category of IL and this phrase references general principles of law that have a commonality to the world’s major legal systems. Foreign relations law is an integral part in understanding the role that states have in IL, both making and impact.
International conflict and constitutional law
Most states have rules that govern employing military force against other states in their constitutions. Compared to IL, whose efficacy has been questioned regarding the realm of high politics, constitutional law is a more crucial factor than IL in making decisions on use of force. Constitutional law that governs the use of forces is varied cross-nationally. This can be illustrated using the branch of international peace and conflict scholarship for explaining ‘democratic peace.’ This is defined as the observation that armed conflict happens more in autocracies than it does in democracies. The institutional constraints theory regarding democratic peace says that executive decision making in democracies is subjected to extensive institutional constraints compared to autocracies. For instance, democracies require executive decisions to be backed by legislative approval, making use of force decisions more difficult. Moreover, the time taken for the executive to overcome institutional constraints is enough for creating an opportunity for peacefully settling international disputes. The ability and willingness of overcoming such constraints is a demonstration of resolve which allows executive to send credible signals which could be used in crisis bargaining hence reducing the likelihood of escalating to a military conflict. Executives always comply with the constraints that are imposed by national constitutional law.
Sovereignty, international political economy and extraterritorial application of domestic law
Foreign relations law comprises the domestic legal principles which determine whether states apply laws extraterritorially. This is whether a state applies domestic laws to people or activities happening outside its territorial borders. The rules that govern extraterritorial application of domestic laws is varied cross nationally and even within single states these rules vary by either subject area and time. Foreign international law deals with the same problem; is a state allowed to apply domestic law extraterritorially? In practice, the answer is yes, for instance, the Europeans apply their antitrust laws outside their territories extraterritorial laws impact IR scholarship regarding state sovereignty. Sovereignty is one of state’s defining attributes and one of sovereignty’s core principles is that a state can exclusively govern affairs within its territory. There are however some exceptions to sovereignty, for instance, international human rights is one of the exceptions. It is a form of IL that regards how states treat citizens within its territories. By defining how and when states apply their law extraterritorially, foreign relations law assists in shaping the contours of state sovereignty.
Extraterritorial regulation from international political economy (IPE) point of view has great significance. IPE comprises all work which international economic factors have an important consequence or cause. IR scholars who study IPE have focused on the international legal institutions that states regulate transnational economic activity, for instance international finance and trade. Under circumstances when transnational economic activity is not regulated by IL, states use extraterritorial application of domestic law as an alternative. Extraterritorially applying domestic law is a crucial tool states use in the regulation of transnational economic activity, and is tied to state sovereignty. There are domestic institutions that decide whether domestic law is applicable extraterritorially, for instance courts, legislative bodies and regulatory agencies. In terms of consequences, extraterritorial regulation makes a contribution to the allocation of authority in governing transnational activity among states, although in incomplete and unilateral manner. One state decides to extraterritorially regulate through the application of its law transnational but without the consideration of other states and its interests in regulating similar activity with its own law. Extraterritorial regulation also has an influence on the strategic behavior that private actors have as well as other states. Most importantly, the extraterritorial application of one state’s domestic laws influences the evolution of another state’s domestic laws.
Private international law
Private international law comprises two legal rules categories; substantive rules and conflict of laws rule. Substantive rules govern the private activity transnational, for instance, cross border commercial transactions as well as family relationships. Conflict of laws rules govern domestic courts and how they allocate governance authority among states this contrasts public international law which governs relations among states. Some private international law comes in the form of treaties and hence understood as IL. The use of IL in private international law is misleading considering considerable portions of private international laws are in the form of domestic law.
Private actors and the substantive rules of private international law
One of the most common trends in IR scholarships has been moving from state centric analysis to analyzing the role of private actors, that is, moving from international relations to world politics. The role of private rule making in regulating global economy has been studied increasingly by IR scholars as well as the impact that domestic and transnational private actors regarding the evolution and effectiveness of IL. Private international law treaties are one type of private international law which governs private transnational activity. States also use another legal tool in the governing of transnational private activity, transnational model laws. Transnational model laws are drafted by international organizations or negotiated by states, and private actors are often involved, they are not adopted as treaties are but as templates for use in domestic legislation.
Transnational commercial arbitration comprises dispute arbitration that arises from commercial activity that has a connection with more than one state. These connections might be in territorial form or in legal relationships. Transnational commercial arbitration offers a mechanism for third parties to interpret and enforce contracts; providing a means through which transnational actors enhance the credibility they have in commitments towards each other. Second, it provides a process for filling contracts and arbitration blanks and provides mitigation for incomplete problems in contracting that are faced routinely by transnational commercial actors. This system offers services in dispute resolution which help transnational actors in managing the costs in commercial relationship conflicts. Arbitration typically deals with disputes over rights and resources allocation. it is rather natural to think of transnational commercial arbitration as some form of private global governance where arbitrators and institutions if private arbitral take the ‘global governance’ role.
Global governance and conflict of laws branch of private international law
This is another branch of private international law that has a role in world politics; conflict of laws rules which assist in the allocation of governance authority in states. Decisions are made annually whether foreign or domestic courts should adjudicate the disputes that arise from transnational activity. These decisions deal with matters that range from cross border transactions in business, human rights, terrorism, intellectual property to tourism. These decisions involve making a choice between asserting domestic governance authority and deferring to authority from foreign governance. Conflict of laws rule is a foundation for the decentralized and pluralistic systems of society today. This system provides guidance in three dimensions regarding judicial allocation of governing authority. It corresponds to ‘who governs’, the choice of law, the level of jurisdiction and what judgments should be recognized and enforced. Who prescribes? This means what state laws are used in governing transnational activities. Domestic courts employ the rules in choice of law in deciding which rules to apply, domestic or foreign. Who adjudicates? Judges use jurisdiction and related doctrines like forum non conveniens in deciding the assertion of domestic adjudicative authority in transnational cases or the deferment to foreign adjudicative authority. Who enforces? What states recognize and enforce decisions arising from courts in another state? Conflict of laws rules mitigate clashes between sovereigns when attempting to impose regulatory schemes in furthering its own policies.
International relations theory
Liberals make the argument that the universal condition of world politics is globalization. According to liberalism, states are and have always been embedded in the domestic as well as transnational society, creating incentives for social, cultural and economic interaction beyond territorial borders. State policies either facilitate of block these interactions and domestic groups are either beneficiaries or victims of such policies given they pressure governments accordingly for the policies aimed bat facilitating the realization of individual goals. These social pressures are transmitted using domestic political institutions and help in the definition of state preferences. These state preferences are the social substantive purposes which help in the motivation of foreign policy.
State preferences accord governments an underlying stake when faced with international issues . without the social patterns which transcend territorial borders, states lack a rational incentive in engaging in world politics hence would devote resources in isolated and autarkic existences. To ensure conflict, cooperation and any other actions in foreign policy, states need to have sufficiently intense preferences. The result is a globalization induced variation in the demands of individual states which is a fundamental cause of behavior of states in world politics. This provides the central insight that liberal international relations theorists use. The liberal focus regarding variation in state preferences that are socially determined distinguish liberal theory from various theoretical traditions. Realism focuses on variation regarding the coercive resources of power. Institutionalism is focused on information and most non rational approaches look at belief patterns on means and ends relationships. Liberal theory differs from the convention theories given that liberals look at conflicting state p0references. These state preferences are derived from political ideologies and hostile nationalist, nations disputing over appropriable economic resources and the exploitation of unrepresented constituencies in political fronts which is where international relations and law come in.
Conclusion
There are other types if IR that are equally important as public international law with relations to world politics, for instance, foreign relations law and private international law. Some of the basic implications and premises are that private international law is crucial to world politics including the international rules that govern private international law and transnational relations and the facilitation and hindrance of private governance. Domestic law is crucial to world politics, for instance, domestic rules regarding foreign relations and domestic rules regarding private international law, for instance, conflict of laws rules. International law and international relations scholarship was initiated by public international law scholars. The relations between IL and world politics highlights the domestic’s law influence in IR and transnational relations. These processes comprise the effect that domestic rules have on foreign relations law and the making of IL. It also includes using military force, as well as the application of extraterritorial domestic law in the governing of transnational activity. Lastly, domestic rules with regards to foreign relations laws deal with the effect of domestic conflict of laws rules when dealing with the allocation of governance authority among various states. IL and world politics has implications on how world politics should be legalized. Scholars gave emphasized the role played by IL and courts in world politics.
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