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International Law

International law

International law, is the body of law that "regulates the activities of entities possessing international personality". Traditionally, that meant the conduct and relationships of states. However, it is now well established that international law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals. As Rosalyn Higgins put it, international law is a normative system "harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialised or developing". The necessity for international law arises from the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behaviour. The term "public international law" is occasionally used as a synonym to distinguish international law from "private international law". The latter regulates the relations between persons or entities in different states and is in fact not international law at all (a better term which has been suggested for private international law is "conflict of laws").

The scope of international law

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly 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 international waters and outer space, global communications, and world trade. Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. Because of this, 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, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations". Where there are breaches of the law, international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. 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. Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11 actions) have been inclusive of corporations, and even individuals.

Fundamental conflicts over international law

The 17th, 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including WWI and WWII, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the Nuremberg trials. Over the past fifty years, more and more international laws and law making bodies have been created. Many people feel that these modern developments endanger nation states by taking power away from state governments and ceeding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in light of international law and standards (see world government for trends and movements leading in this direction). A number of states, notably including the United States vehemently oppose this interpretation, maintaining that sovereignty is the only true international "law" and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a new area of law its development is uncertain and its relevance and propriety is hotly disputed.

Sources of International Law

See main article: Sources of international law. International law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). 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. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

Interpretation of International Law

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute. The Vienna Convention on the Law of Treaties writes on the topic of interpretation that: : "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1)) This is actually a compromise between three different theories of interpretation:
- The textual approach is a restrictive interpretation which bases itself on the "ordinary meaning" of the text, the actual text has considerable weight.
- A subjective approach considers the idea behind the treaty, treaties "in their context", what the writers intended when they wrote the text.
- A third approach bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation". These are general rules of interpretation; specific rules might exist in specific areas of international law.

Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.

Enforcement by international bodies

See main article: International legal system. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions. They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent. States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction. Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of 2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

History

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe. In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic, rector of Jagiellonian University (Kraków, Poland), theologian, lawyer and diplomat, presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land. In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation: # Self-governing, autonomous states existed. # Almost all of them were governed by monarchs. ##The Peace of Westphalia is often cited as being the birth of the modern nation-states, establishing states as sovereigns answering to no-one within its own borders. # Land, wealth, and trading rights were often the topics of wars between states. Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes in Europe. The Dominican professor of theology Francisco de Vitoria (in Latin Franciscus de Victoria) at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536. Charles V, Holy Roman Emperor, protested against the friar, but in 1542 new laws put the natives under protection of the Spanish crown. Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.) The French monk Emeric Cruce (1590–1648) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas (1623), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War (1618–1648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes. Hugo Grotius (or Huig de Groot) (1583-1645) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau, son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum (Latin for "Free seas"), in which he challenged the claims and attempts of England, Spain, and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law in Europe. It was published only two years after The New Cyneas. Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine of Hippo). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria: # It can be to repel an invasion. # It can be to punish an insult to God. # There has to be a just cause (one of the two mentioned above). # It has to be declared by the proper authorities. # It must possess moral intention. # It must have a chance of success. # It must abstain from brutal practices. # Its end result must be proportional to the means used. The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established. After World War I, the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a "League of Nations". However, due to political wrangling in the U.S. Congress, the United States did not join the League of Nations, which was one of the causes of its demise. When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1, 1942, US President Franklin D. Roosevelt issued the "Declaration by United Nations" on behalf of 26 nations who had pledged to fight against the Axis powers. Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations. On October 24, 1945, the United Nations officially came into existence, setting a basis for much international law to follow.

Branches of International Law

- International Criminal Law
- The Law pertaining to Use of Force
- International Humanitarian Law
- Law of the Sea
- Diplomatic Law
- Consular Law
- Law of State Responsibility
- International Environmental Law

Notes and references

#Higgins R, Problems and process : international law and how we use it (Oxford : Clarendon Press, 1994) at 16. #Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976)

Relationship

See:
- Relational model
- Interpersonal relationship, including romantic relationships
- Mathematical relationship, including:
- Inverse relationship
- Direct relationship
- Relation (mathematics)

International organization

:For the political science journal, see: International Organization An international organization (also called intergovernmental organization) is an organization of international scope or character. There are two main types of international organizations:
- international intergovernmental organizations, whose members are sovereign states or other intergovernmental organizations (like European Union in the WTO).
- and non-governmental organizations (NGOs), which are private organizations. Generally and correctly used, the term international organization is used to mean international governmental organizations only. It is in this sense that the term is used in the remainder of this article. Legally speaking, an international organization must be established by a treaty providing it with legal recognition. International organizations so established are subjects of international law, capable of entering into agreements among themselves or with states. Thus international organizations in a legal sense are distinguished from mere groupings of states, such as the G-8 and the G-77, neither of which have been founded by treaty, though in non-legal contexts these are sometimes referred to as international organizations as well. International organizations must also be distinguished from treaties; while all international organizations are founded on a treaty, many treaties (e.g., the North American Free Trade Agreement (NAFTA)) do not establish an international organization and rely purely on the parties for their administration. International organizations can be categorised in two main ways: by their membership, and by their function. International organizations differ in who their members are and in who is permitted to join them. Membership of some organizations (global organizations) is open to all the nations of the world. This category includes the United Nations and its specialized agencies and the World Trade Organization. Some specialized agencies predate all other types. In the nineteenth century, France was the fons et origo of many of them. By this it is meant that much of the driving force to form such bodies (such as those which maintain the SI (metric system)) came from the French, and that their headquarters is in France, often in Paris. Under the Third Republic, the International Exposition of 1878 in that city held a great number of meetings of such international organizations - as opposed to the preceding regimes. The motivation was that to keep France a republic and not slip back into either a monarchist or Bonapartist regime, the republicans would underscore their inheritance of the crusading nature of the French Revolution against feudal cultural remnants within France, which had been generalized to the rest of feudal Europe, eventually to the world. Some conclude from this example that internationalism often has national origins, at the difference of globalism. Other organizations are only open to members from a particular region or continent of the world, like European Union, African Union, ASEAN and so on. Finally, some organizations base their membership on other criteria: cultural or historical links (the Commonwealth of Nations, La Francophonie, the Community of Portuguese Language Countries), level of economic development or type of economy (Organisation for Economic Co-operation and Development (OECD), Organization of Petroleum-Exporting Countries (OPEC)), or religion (Organization of the Islamic Conference). Were it to come about, the ultimate international organization would be a Federal World Government. The Union of International Associations provides information on international organizations.

Examples of global organizations

- United Nations, its specialized agencies, and associated organizations
- International Hydrographic Organization
- World Trade Organization
- Universal Postal Union

Examples of regional organizations

Universal Postal Union Europe:
- European Union (EU)
- Council of Europe
- European Free Trade Association
- European Space Agency
- European Patent Organisation Asia:
- Asian Cooperation Dialogue (ACD)
- Association of Southeast Asian Nations (ASEAN)
- South Asian Association for Regional Cooperation (SAARC)
- Gulf Cooperation Council Eurasia:
- Commonwealth of Independent States (CIS)
- Shanghai Cooperation Organization (SCO)
- Eurasian Economic Community
- Central Asian Cooperation Organization
- GUAM Africa:
- African Union
- Conseil de l'Entente
- Economic Community of West African States (ECOWAS)
- Southern African Development Community (SADC)
- Intergovernmental Authority on Development (IGAD)
- Arab Maghreb Union Western Hemisphere:
- Organization of American States (OAS)
- South American Community of Nations
- Mercosur
- Andean Community
- Caribbean Community (CARICOM)
- Organisation of Eastern Caribbean States (OECS)
- Central American Parliament
- Rio Group
- NAFTA Trans-atlantic:
- North Atlantic Treaty Organisation (NATO)
- Organization for Security and Co-operation in Europe (OSCE) Pacific:
- Asia-Pacific Economic Cooperation (APEC)
- Pacific Islands Forum
- Secretariat of the Pacific Community

Organizations formed on miscellaneous membership criteria

- Organisation for Economic Co-operation and Development (OECD)
- Organization of Petroleum-Exporting Countries (OPEC)
- Commonwealth of Nations
- La Francophonie
- Comunidade dos países de língua portuguesa (CPLP)
- Organization of Ibero-American States (OEI)
- Unión Latina
- Non-Aligned Movement
- Arab League
- Organization of the Islamic Conference
- Sister Cities International

Financial international organizations

- Bank for International Settlements
- International Monetary Fund (IMF)
- World Bank Group

Multinational corporation

A multinational corporation (MNC) or multinational enterprise (MNE) or transnational corporation (TNC) is an corporation/enterprise that manages production establishments located in at least two countries. Multinational corporations (MNC) are often divided into three broad groups:
- Horizontally integrated multinational corporations manage production establishments located in different countries to produce same or similar products.
- Vertically integrated multinational corporations manage production establishment in certain country/countries to produce products that serve as input to its production establishments in other country/countries.
- Diversified multinational corporations manage production establishments located in different coutries that are neither horizontally or vertically integrated. ---- Very large multinationals have budgets that exceed those of many countries. They can have a powerful influence in international relations, given their large economic influence in politicians' representative districts, as well as their extensive financial resources available for public relations and political lobbying. Given the international reach and mobility of these corporations, prospective countries, and sometimes regions within countries, must compete with each other to have MNCs locate their facilities (and subsequent tax revenue, employment, and economic activity) within. To compete, countries and regional political districts will offer incentives to MNCs such as tax breaks, pledges of governmental assistance or improved infrastructure, or lax environmental and labor standards. This process of becoming more attractive to foreign investment can be characterised as a race to the bottom. The first multinational, appearing in 1602, was the Dutch East India Company.

Examples

ja:多国籍企業

Rosalyn Higgins

Judge Rosalyn Higgins (born in London, 1937) is a Judge on the International Court of Justice. Higgens was the first female judge to be appointed to the ICJ. She has been a member of the Court since 12 July 1995, and was re-elected as from 6 February 2000. She studied at Cambridge (undergraduate and Master's degrees in Law) and Yale (doctorate). Staff Specialist in International Law, Royal Institute of International Affairs, 1963- 1974; Visiting Fellow, London School of Economics, 1974-1978; Professor of International Law, University of Kent at Canterbury, 1978-1981; Professor of International Law in the University of London (London School of Economics), 1981-. Author of several influential works on international law, including Problems and Process: International Law and How We Use It (1994).

External link

- [http://www.icj-cij.org/icjwww/igeneralinformation/icvjudge/Higgins.html ICJ biography]. Higgins, Rosalyn Higgins, Rosalyn Higgins, Rosalyn Higgins, Rosalyn

Private international law

Private International Law, International Private Law, or Conflict of Laws is that branch of law, private in some states, public in others, regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied as the lex causae. Firstly, it is concerned with determining whether the proposed forum has jurisdiction to adjudicate and is the appropriate venue for dealing with the dispute, and, secondly, with determining which of the competing state's laws are to be applied to resolve the dispute. It also deals with the enforcement of foreign judgments.

Names

The subject has three names which are generally interchangeable, although none of them is wholly accurate or properly descriptive. 'Conflict of Laws' is somewhat misleading, since the object of this branch of law is to eliminate the consequences of any conflict between competing systems of law rather than to provoke a conflict. In federal countries where an inter-state situation arises (such as in the United States), the term "Conflict of Laws" is preferred because describing it as a branch of "international" law would be confusing to lay citizens.

The stages in a conflict case

#The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of forum shopping. #The next step is the characterisation of the cause of action into its component legal categories which may sometimes involve an incidental question (also note the distinction between procedural and substantive laws). #Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue. A key element in this may be the rules on renvoi. #Once it has been decided which laws to apply, those laws must be proved before the forum court and applied to reach a judgment. #The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

Choice of law rules

Courts faced with a choice of law issue have a two-stage process: #the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and #it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice. For example, suppose that A who has a French nationality and residence in Germany, corresponds with B who has American nationality, domicile in Arizona, and residence in Austria, over the internet. They agree the joint purchase of land in Switzerland, currently owned by C who is a Swiss national, but they never physically meet, executing initial contract documents by using fax machines, followed by a postal exchange of hard copies. A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law. The rules to determine which courts would have jurisdiction and which laws would be applied to each aspect of the case are defined in each state's laws so, in theory, no matter which court in which country actually accepts the case, the outcome will be the same (albeit that the measure of damages might differ from country to country which is why forum shopping is such a problem). In reality, however, moves to harmonise the conflictual system have not reached the point where standardisation of outcome can be guaranteed.

Pre-dispute provisions

Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). Then, choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. Obviously, this judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors, but it does work well in practice.

The status of foreign law

Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. The theoretical responses to this issue are:
- (a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or
- (b) that the local court creates a right in its own laws to match that available under the foreign law. This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases. Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his or her own principles of ordre public (public policy) and the parties cannot, by their own act, oust the fundamental principles of the local municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases where an application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other territorially limited laws. In some countries, there is occasional evidence of parochialism when courts have determined that if the foreign law cannot be proved to a "satisfactory standard", then local law may be applied. Similarly, judges might assume in default of express evidence to the contrary that the place where the cause of action arose would provide certain basic protections, e.g. that the foreign court would provide a remedy to someone who was injured due to the negligence of another. Finally, some American courts have held that local law will be applied if the injury occurred in an "uncivilized place that has no law or legal system." See Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956). If the case has been submitted to arbitration rather than a national court, say because of a forum selection clause, an arbitrator may decide not to apply local mandatory policies in the face of a choice of law by the parties if this would defeat their commercial objectives. However, the arbitral award may be challenged in the country where it was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have been applied. If the lex loci arbitri has been ignored, but there was no real and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement is sought may well accept the tribunal's decision. But if the appeal is to the courts in the state where the arbitration was held, the judge cannot ignore the mandatory provisions of the lex fori.

Harmonisation

To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Conference on Private International Law is a treaty organisation that oversees conventions designed to develop a uniform system. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues. There is a general recognition that there is a need for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale of Goods, the Rome Convention on the Law Applicable to Contractual Obligations offers less specialised uniformity, and there is support for the UNIDROIT Principles of International Commercial Contracts, a private restatement, all of which represent continuing efforts to produce international standards as the internet and other technologies encourage ever more interstate commerce. But other branches of the law are less well served and the dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has failed to produce a universal system for the common market. Nevertheless, the Treaty of Amsterdam does confer authority on the Community's institutions to legislate by Council Regulation in this area with supranational effect. Article 177 would give the Court of Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in letter. Whether the domestic courts of the Member States would be consistent in applying those letters is speculative.

External links

- [http://www.hcch.net/ Hague Conference on Private International Law] official website.
- International Institute for the Unification of Private Law (UNIDROIT) http://www.unidroit.org/
- United Nations Commission for International Trade Law (UNCITRAL) http://www.uncitral.org/
- [http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/commentary/20010927_sprigman.html Why the Hague Convention on jurisdiction threatens to strangle e-commerce and Internet free speech], by Chris Sprigman

References

- American Law Institute. Restatement of the Law, Second: Conflict of Laws. St. Paul: American Law Institute.
- Dicey and Morris on the Conflict of Laws (13th edition) (edited by Albert V. Dicey, C.G.J. Morse, McClean, Adrian Briggs, Jonathan Hill, & Lawrence Collins). London: Sweet & Maxwell 2000.
- North, Peter & Fawcett James. (1999). Cheshire and North's Private International Law (13th edition). London: Butterworths.
- Reed, Alan. (2003). Anglo-American Perspectives on Private International Law. Lewiston, N.Y.: E. Mellen Press. Category:International law ja:国際私法

States

The term state may refer to:
- a legal concept in public and private international law: see state (law)
- a sovereign political entity, see
- state
- unitary state
- nation state
- a non-sovereign political entity, see state (non-sovereign).
- in Australia, see Australian States and Territories.
- in Austria (Bundesland), see States of Austria.
- in Brazil, see States of Brazil.
- in Germany (Bundesland), see States of Germany.
- in India, see States and territories of India .
- in Mexico, see States of Mexico.
- in the United States of America, see U.S. state.
- The States, an assembly of the representatives of the estates of the realm in a subnational entity.
- States of Holland
- The parliaments of the the Channel Islands: the States of Jersey and the States of Guernsey
- States-General, an national assembly of the estates, a legislature.
- colloquially, used to refer to the United States.
- colloquially, the US State Department.
- a general condition, as in "state of being"
- a term in physics, particularly in thermodynamics, statistical physics, and dynamical systems and chaos theory, see state (physics).
- a term in computer science and computability theory, see state (computer science).
- a term in functional analysis, see state (functional analysis).
- a term in neuro-linguistic programming, see state (neuro-linguistic programming).
- a term in linguistic morphology traditionally used for a certain grammatical category of the noun in several Semitic languages.
- a sketch comedy show on MTV, see The State (TV series) ----

Jurisdiction

In law, jurisdiction from the Latin jus, juris meaning "law" and dicere meaning "to speak", is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. As a topic, it draws its substance from Public International Law, Conflict of Laws, Constitutional Law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of each society.

Jurisdiction in the international dimension

Public international law provides a framework within which nations and states (in the political sense of the words) can come into being and relate to each other.

Jurisdiction as a political issue

A number of supranational organizations and bodies have been created which provide mechanisms whereby disputes between states may be avoided, discussed or resolved, e.g. through arbitration or mediation. When a country is recognised as de jure, this is an acknowledgement by the other de jure nations that the new country has sovereignty and the right to exist. This is a political system that moves slowly, gathering consensus wherever possible and the extent to which any state will co-operate or participate is always at the discretion of each sovereign state. By definition, if any state does agree to participate in any of the activities of the supranational bodies and to accept decisions that might be made in the ordinary course of their business, that state is giving up a little of its sovereign authority and thereby allocating a little power to these bodies. In so far as these bodies or nominated individuals may resolve disputes in a judicial or quasi-judicial fashion, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents each body's own jurisdiction. But no matter how powerful each body may appear to become, the extent to which any of the judgments may be enforced, or proposed treaties and conventions may become or remain effective within the territorial boundaries of each nation is a political matter under the sovereign control of the relevant representative government(s) which, in a democratic context, will have electorates to satisfy.

International versus municipal jurisdiction

The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e. the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically. The concept of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to states (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Under Article 34 Statute of the ICJ http://www.icj-cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm only states may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time. Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those states which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy. Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the states affected, save that the WTO is permitted to allow retaliatory action by successful states against those states found to be in breach of international trade law. At a regional level, groups of states can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, e.g. the European Union and African Union both have the potential to become federated states although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the Member States on issues of European law. This jurisdiction is entrenched and its authority could only be denied by a Member State if that Member State asserts its sovereignty and withdraws from the Union.

The jurisdictional relationship between international and municipal laws

The standard treaties and conventions leave the issue of implementation to each state, i.e. there is no general rule in international law that treaties have direct effect in municipal law, but some states, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Hence, citizens in those states can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:
- Monism :This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, e.g. the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles.
- Dualism :This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties. :In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law, …the "Supreme Law of the Land" (U.S. Const.art. VI Cl. 2) and, sas such, the law of the land is binding on the federal government as well as on state and local governments. According to the U.S. Supreme Court, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland 252 U.S. 416 (1920)).

The jurisdiction of courts between and within states

This now concerns states in the technical legal sense of the word and the relationships both between courts in different states, and between courts within the same state.

Supranational

At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of state courts and to enforce the judgments obtained. For example, the Member States of the EEC signed the Brussels Convention in 1968 and, subject to amendments as new states joined, it represents the default law for all twenty-five Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Area. With effect from 1 March 2002, all the Member States of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is directly effective in the Member States. In some legal areas, at least, the reciprocal enforcement of foreign judgments is now more straightforward. At a state level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area. There is a real and growing problem of forum shopping and in the reluctance of some states to adopt more positive Conflict of Laws rules. Although the Hague Conference and other international bodies have made consistently useful recommendations on jurisdictional matters, litigants with the encouragement of lawyers now more commonly operating on a contingent fee continue to exploit the system to their advantage, always seeking remedies in courts where the outcome is more likely to be favorable.

Federal

Many nations are subdivided into states and provinces (i.e. a subnational "state") in a federation (as can be found in Australia, Brazil, India, Mexico and the United States) and these subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures operating within the whole. Sometimes when the areas of separate governmental entities overlap one another—for example, between a state and the federation to which it belongs—their jurisdiction is shared or concurrent jurisdiction. Otherwise one governmental entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted or restricted only by a number of limited restrictions, these government branches have plenary power such as a national policing power. Otherwise an enabling act grants only limited or enumerated powers. The problem of forum shopping also applies as between federal and state courts, and it is for each system to adjust jurisdictional matters to achieve the fairest possible results.

State level

Within each state, it is for the government to determine the allocation of jurisdiction: #There must be physical distribution of courts and tribunals throughout the territory which should be divided into convenient functional divisions to provide an effective service to the local communities. Hence, it may be convenient for there to be an extensive network of smaller local courts having a criminal law jurisdiction so that neighborhoods can have a disposition system administered by those familiar with their locality and its needs (see criminal jurisdiction). Whereas more specialized civil and commercial courts need only be located in larger towns and major cities where there is a demand for the particular specialisms consistent with the economic costs of providing the facilities and personnel to staff them. Each court system lays down detailed rules for determining who may invoke the jurisdiction in each of the various divisions. In addition to the possibility that the plaintiff has a local domicile, nationality or habitual residence, these conditions may vary from minimum residence requirements for those more transiently present, that business has been conducted within the territory or that there is some other real connection between the plaintiff and/or the cause of action and the state in which the lawsuit has been filed. #The government may decide that individuals within the executive should have the power to make judicial or quasi-judicial decisions, and the extent to which the exercise of this jurisdiction should be subject to review by the courts. This has constitutional implications in that many states operate on the basis of the separation of powers which requires that each branch of government operates as a check on the potential abuse of power by the others. Within the formalized judicial structure, jurisdiction may also be granted to individuals for the provision of specialized functions (e.g. the role of special referees or those individuals of prestige commissioned to conduct inquiries into specific situations with the power to compel testimony). In parallel to the courts system, other tribunals and quasi-judicial bodies may also have a form of jurisdiction, e.g. for arbitration, mediation, etc within a broad framework of alternative dispute resolution. Under normal circumstances, the supervisory function of the courts will be built into the constitutive process for each tribunal or body, or the courts will allow their jurisdiction to be invoked, e.g. by way of remedies such as certiorari, to ensure that justice is seen to be done. However, some well-established bodies such as the Beth Din represent more interesting challenges. Such religious or culturally-based courts often have significant power within the relevant communities yet, in an increasingly multi-ethnic, multi-cultural world, the secular or culturally-different majority in each state cannot be seen to be too quick to interfere and impose its standards without appearing to engage in unequal treatment and discrimination (see the secular response to the get as an example).

Jurisdiction in the United States

The primary distinctions between areas of jurisdiction are codified at a national level. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem. A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction. A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. States, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the federal government are courts of limited jurisdiction. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The United States District Courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens. Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.

External links

- [http://www.law.cornell.edu/topics/jurisdiction.html LII Law about... Jurisdiction]
- [http://www.cdi.org/news/law/gtmo-sct-decision.cfm Supreme Court Decision] on Guantanamo Bay jurisdiction Category:International law Category:Law

State immunity

State immunity: based on the may 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, Chatham House In summary, the rules of state immunity concern the protection which a state is given from being sued in the courts of other states; the rules relate to legal proceedings in the courts of another state, not in a state’s own courts. The rules developed at a time when it was thought to be an infringement of a state’s sovereignty to bring proceedings against it or its officials in a foreign country. But there are now substantial exceptions to the rule of immunity; in particular, a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other non-sovereign activity of a state. The new UN Convention, which is not yet in force, formulates the rules and the exceptions to them. It does not cover criminal proceedings, and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country. • Should the law on immunity continue to protect states or their agents against civil proceedings for serious human rights abuses? - It is not obvious why states should have immunity in cases relating to serious human rights abuses. The argument is made that fundamental human rights such as the right to life and the prohibition against torture should take precedence over rules of state immunity. The argument goes that these rights have a higher ranking and importance (in lawyers’ speak they constitute norms of ius cogens) than a rule of state immunity, and that the recent focus on ending impunity for serious human rights abuses should ensure that the law develops to allow states to be sued. - The argument on the other side is that impunity should be ended but that there are other ways of doing this and that it should not be at the expense of the proper conduct of relations between states; that one country’s perception of abuse may not be another’s; that civil actions for a state agent’s atrocities should be brought in the courts of that state, not in a foreign court; that prosecution of crime lies in the hands of the state whereas civil proceedings are pursued by individuals for their own ends; that civil actions brought by disgruntled individuals in one country against another state can have grave political and economic repercussions for both states; and that civil proceedings can raise difficult issues of enforcement and extra-territorial jurisdiction. The arguments on either side reflect different perceptions of the balance to be struck between protection of state interests and protection of an individual’s human rights. see more at [http://www.chathamhouse.org.uk/pdf/research/il/BPstateimmunity.pdf]

Alien (law)

In law, an alien is a person who is not a citizen of the land where he or she is found. If an alien resides in the country, as opposed to being just a visitor, he or she may be called a "resident alien". The term illegal alien describes foreign nationals who have entered the country illegally.

International crime

International crime can be:
- Crime that crosses international borders, and usually committed by international criminal groups. Such crime often takes the form of smuggling—often trafficking in human beings, arms trafficking, or drug trafficking—and money laundering. See also Interpol.
- A crime against international law.
- A crime against humanity, against peace, or a war crime.
- A crime codified in an international agreement or resolution, like the European Union criminal law.

Nationality

Nationality is, in English usage, the legal relationship between a person and a country. Where the country only has one legal system, this represents the common perception, but where the country is divided into separate states, different rules apply. Upon birth, every person acquires a domicile. This is the relationship between a person and a specific legal system. Hence, one might have an Australian nationality and a domicile in New South Wales, or an American nationality and a domicile in Arizona. The person remains subject to the state's jurisdiction for the purposes of defining status and capacity, even while not on the state's territory; in exchange, the individual is entitled to the state's protection, and to other rights as well. This is an aspect of the public policy of parens patriae and the concepts of the social contract. In the civil law systems of continental Europe, either the law of nationality (known as the lex patriae in Conflict of Laws) or the law of the place of habitual residence is preferred to domicile as the test of a person's status and capacity. The nationals of a country generally possess the right of abode in the territory of the country whose nationality they hold, though there are some exceptions (e.g., British Nationality Law). Nationality must be distinguished from citizenship: citizens have rights to participate in the political life of the state of which they are a citizen, such as by voting or standing for election; while nationals need not have these rights, though normally they do. Traditionally under international law and the Conflict of Laws, it was the right of each state to determine who its nationals are. However, today the law of nationality is increasingly coming under regulation, e.g., by the various conventions on statelessness, and the European Convention on Nationality. Nationality can generally be acquired by jus soli, jus sanguinis or naturalisation. Some countries do not permit dual nationality while others only allow a very limited form of dual citizenship (e.g. Indian nationality law, South African nationality law). A person who is not a national of any state is referred to as a stateless person. The nationality of a legal person (e.g., a corporation) is generally the state under whose laws the legal person is registered.

Alternative usage

In several non-English speaking areas of the world, the cognate word for nationality in local language may be understood as a synonym of ethnicity, as nation can be defined as a grouping based on cultural self-determination rather then on relations with a state. For example, many people would say they are Kurds, i.e., of Kurdish nationality, even though Kurdistan is not a state. In the context of former Soviet Union and former Yugoslavia, nationality is often used as translation of the Russian and Serbian terms (nacional'nost', narodnost) used for ethnic groups within those (former) states. Similarly, the term "nationalities of China" refers to ethnic groups in China.

Human rights

Human rights refers to the concept of human beings as having universal rights, or status, regardless of legal jurisdiction, and likewise other localizing factors, such as ethnicity and nationality. The existence, validity and the content of human rights continue to be the subject to debate in philosophy and political science. However human rights are defined in international law & covenants, and further, in the domestic laws of many states. There is, however, a great deal of variance between how human rights norms are defined in these multiple contexts and how they are upheld in different local jurisdictions. Within particular states, "human rights" refer to safeguards for the individual against arbitrary use of power by the government regarding 1) the well being of individuals, 2) the freedom and autonomy of individuals, and 3) the representation of the human interest in government. These rights commonly include the right to life, the right to an adequate standard of living, freedom from torture and other mistreatment, freedom of religion and of expression, freedom of movement, the right to self-determination, the right to education, and the right to participation in cultural and political life. These norms are based on the legal and political traditions of United Nations member states and are incorporated into international human rights instruments (see below). With the exception of so called non-derogable human rights (the four most important are the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws), most human rights can be limited or even pushed aside during times of war.[http://www.un.org/esa/socdev/enable/comp210.htm] Conduct in war is governed by International Humanitarian Law.

Human Rights in international law

The 1948, the Universal Declaration of Human Rights resolution was adopted virtually unanimously by the United Nations General Assembly. While not legally binding, it urged member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world". The declaration limits the behavior of the state, which now has duties to the citizen (rights-duty duality). Efforts to create a legally binding form of the charter led to disagreements between various states over which rights were acceptable. Thus, two different covenents, the International Covenant on Civil and Political Rights (opened for signature 1966, entered into force March 23, 1976) [http://www.unhchr.ch/html/menu3/b/a_ccpr.htm] and the International Covenant on Economic, Social and Cultural Rights (opened for signature 1966, entered into force January 3, 1976) [http://www.unhchr.ch/html/menu3/b/a_cescr.htm] were created which bind those states that ratify them to protect the rights listed in the respective covenant. Together these three documents constitute the International Bill of Human Rights. There have also been a number of other conventions regarding particular rights, including the
- Convention on the Prevention and Punishment of the Crime of Genocide (entry into force: 1951) [http://www.unhchr.ch/html/menu3/b/p_genoci.htm]
- Convention against Torture (entry into force: 1984) [http://www.unhchr.ch/html/menu3/b/h_cat39.htm]
- Convention on the Elimination of All Forms of Racial Discrimination (entry into force: 1969) [http://www.unhchr.ch/html/menu3/b/d_icerd.htm]
- Convention on the Elimination of All Forms of Discrimination Against Women (entry into force: 1981) [http://www.un.org/womenwatch/daw/cedaw/frame.htm]
- Convention on the Rights of the Child (entry into force: 1989) [http://www.unicef.org/crc/crc.htm]
- Rome Statute of the International Criminal Court (entry into force: 2002) A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action[http://www.ohchr.org/english/law/vienna.htm], adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them vary, as does the degree to which they are respected by various states. The UN has set up a number of bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (HCHR). There are also many regional agreements and organisations governing human rights including the European Court of Human Rights, the only international court with jurisdiction to deal with cases brought by individuals (not states). the African Commission on Human and Peoples' Rights, Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

Types of human rights

Human rights are typically divided into two categories: negative human rights (rights to be free from) and positive human rights (rights to), although other categorizations exist. Negative human rights, which follow mainly from the Anglo-American legal tradition, denote actions that a government should not take. These are codified in the United States Bill of Rights, the English Bill of Rights and the Canadian Charter of Rights and Freedoms and include freedoms of speech, religion and assembly. Positive human rights follow mainly from the Rousseauian Continental European legal tradition, denote rights that the state is obliged to protect and provide. Examples of such rights include: the rights to education, to a livelihood, to legal equality, and to alter forms of consciousness. Positive rights have been codified in the Universal Declaration of Human Rights and in many 20th-century constitutions. A categorization offered by Karel Vasak is the three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal and political recognition. Some theorists discredit these divisions by claiming that rights are interconnected. Arguably, for example, basic education is necessary for the right to political participation.

History of human rights

The best-known histories of the human rights movement tend to begin with the ancient religions and societies and show the evolution of concepts and institutions of human rights across civilizations. The roots of the notion of Human Rights can be drawn as far back as the Ancients (the role of the individual in the state) but the idea of civil and political rights stems from liberal freedoms advocated by John Stuart Mill in On Liberty. The concepts of economic, social and cultural Rights can be traced back to Hegel's Elements of the Philosophy of Right. The origin of modern positive rights in international law may be traced to the creation of the International Labour Organization in 1919 as a Western response to the socialist ideology of the Russian Revolution of 1917.

Philosophical basis of human rights

Numerous theoretical approaches have been advanced to explain how human rights become part of social expectations. The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection. Other theories hold that human rights codify moral behavior, which is a human, social product developed by a process of biological and social evolution (associated with Hume) or as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). This approach includes the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls). Natural law theories base human rights on the “natural” moral order based on religious precepts, the assumed common understandings of justice, or the belief that moral behavior is a set of objectively valid prescriptions. In legend, literature, religion and political thought, justice (and eventually the concept of human rights) became socially constructed over time into complex webs of social interaction striving toward a social order in which human beings are treated fairly. Religious societies tend to try to justify human rights through religious arguments. For example, liberal movements within Islam have tried to use the story of Adam in the Qur'an to support human rights in a Muslim context. Other theories are based on human agency, positing such constructs for agreement to rules on the utilitarian principles mediated by public reasoning. The social evolution model is based on human needs and struggle that incorporates an analysis of the norm-creating process. Values become norms through the constitutive process of authoritative decision-making. Such norms may take the form of law through a particular form of authoritative decision making of institutions associated with a legal system. It is the process of public reasoning through human rights norm-creating that progressively weeds out the culturally bound behaviors that are inconsistent with contemporary human rights. In this sense, culturally particular norms adapt to evolving human rights standards as defined in national constitutions and international human rights instruments. Ultimately, the term "human rights" is often itself an appeal to a transcendent principle, without basing it on existing legal concepts. The term "humanism" refers to the developing doctrine of such universally applicable values. Some authors argue that nationalism and realism weaken human rights, while individualism and cosmopolitanism strengthen them. This is argued by Klitou in his book "The Friends and Foes of Human Rights." Klitou also outlines the need for a "human identity" in order to empower human In the Western political tradition, human rights are held to be "inalienable" and to belong to all humans. They are necessary for freedom and the maintenance of a "reasonable" quality of life. If a right is inalienable, that means it cannot be bestowed, granted, bartered, or sold away (e.g., one cannot sell oneself into slavery). Rights may also be non-derogable (not limited in times of national emergency); these often include the right to life, the right to be prosecuted only according to the laws that are in existence at the time of the offense, the right to be free from slavery, and the right to be free from torture.

Human rights controversies

There are a number of controversies regarding human rights including: #Are human rights political, moral or legal entities (or all three at the same time)? #Is there or should there be a hierarchy of human rights? #Do human rights impede on state sovereignty? What if the state itself has ratified international conventions? #Should human rights be used as a context for economic or military intervention? (Often leads to a worsening of the human rights situation in the target country) #Questions of cultural relativism—e.g. "Political participation is not a part of African culture. Who are you to say that we should have political participation?" These arguments can also be made on religious basis: e.g., "In our religion marriages have always been arranged; why should we not continue this practice?" Some arguments claim that human rights policies are a form of cultural imperialism in which powerful countries dictate which rights they consider most important to less powerful countries. The increasing number of third-world states that are party to international human rights treaties has made these arguments weaker, but they have not disappeared altogether. #Who should hold the moral duty to uphold rights? For civil and political rights, many would answer 'the state'. But in practice, it is frequently one's fellow citizens and civil society who need to shoulder this responsibility. It is not quite so clear who should be responsible for promoting economic, social and cultural rights (do we have a global duty?). This debate mirrors debates between communitarianism and cosmopolitanism. #Which rights should be defined as fundamental human rights? Should all human rights be considered equal? #Are countries guilty of human rights violations when their governments substantially support foreign governments that do not adhere to the established principles of human rights (within their own countries or in other countries)?

- Amnesty International
- ARTICLE 19
- Carter Center
- Forum 18
- Freedom House
- Human Rights Campaign
- Human Rights Watch
- International Freedom of Expression Exchange
- International Helsinki Federation for Human Rights
- Memorial (society)
- Montagnard Foundation
- Network Against Prohibition
- Office of the United Nations High Commissioner for Human Rights
- Prisoners Overseas
- Southern Poverty Law Center
- Bahrain Centre for Human Rights

Africa

- South Africa: Human rights in South Africa
- Sudan: Human rights in Sudan
- Tunisia: Human rights in Tunisia
- Uganda: Human rights in Uganda
- Zimbabwe: Human rights in Zimbabwe
- Note: Citizens of the African nations are provided supranational human rights protection by the African Commission on Human and Peoples' Rights.

Americas

- Brazil: Human rights in Brazil
- Canada: Canadian Charter of Rights and Freedoms makes mention of essential human rights
- Cuba: Human rights in Cuba
- Mexico: Human rights in Mexico
- Peru: APRODEH
- USA: Human rights in the United States
- Note: Citizens of the American nations enjoy varying degrees of supranational human rights protection from the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

International law

The scope of international law

Fundamental conflicts over international law

Sources of International Law

Interpretation of International Law

Enforcement by states

Enforcement by international bodies

History

Branches of International Law

Notes and references

See also

Relationship

International organization

Examples of global organizations

Examples of regional organizations

Organizations formed on miscellaneous membership criteria

Financial international organizations

See also

Multinational corporation

Examples

See also

Rosalyn Higgins

External link

Private international law

Names

The stages in a conflict case

Choice of law rules

Pre-dispute provisions

The status of foreign law

Harmonisation

See also

External links

References

States

Jurisdiction

Jurisdiction in the international dimension

Jurisdiction as a political issue

International versus municipal jurisdiction

The jurisdictional relationship between international and municipal laws

The jurisdiction of courts between and within states

Supranational

Federal

State level

Jurisdiction in the United States

See also

External links

State immunity

Alien (law)

See also

International crime

Nationality

Alternative usage

See also

Human rights

Human Rights in international law

Types of human rights

History of human rights

Philosophical basis of human rights

Human rights controversies

See also

Similar topics

General

Human rights organizations

Africa

Americas