International Law and Its Developmental Process

Introduction

Along with the expansion and development of world’s society, international law is improving. This sphere has a number of subjects and sources that predetermine the vector of its development. However, it is worth noting that not all innovations over time can be interpreted as unambiguously positive. It is necessary to analyze how the latest changes in the objects and sources of international law affect the situation and what problems are revealed as a result of this process.

Objects and Sources of International Law

Before studying the relationship and development of sources and subjects of international law, it is essential to characterize these criteria. Sources of international law are understood in two senses: in the material, such as conditions of society, and formal – the form in which the rules of law find their expression¹. Sources of international law are recognized by the states as forms of embodiment of the results of the coordination of the state will, and forms of fixing international legal norms. Key sources include:

1. International treaties establishing rules expressly recognized by the contending states. International treaties are:

   1. General, in which all states can participate and which contain rules binding on the entire international community²;
   2. Special contracts with a limited number of participants;
2. International custom as proof of a general practice accepted as law.

The subjects of modern international law are:

1. States;
2. Intergovernmental, interstate organizations;
3. Nations and peoples fighting for their independence under certain conditions³;
4. State-like formations.

It must be noted that the properties of the subjects of international law are common in all of them. First, they are not under anyone’s jurisdiction and are independent of other subjects of international law⁴. Secondly, the subjects have a set of rights and obligations established for them by international law and, if necessary, bear international legal responsibility⁵. Finally, they have the capacity for independent international action, including establishing diplomatic or similar relations, as well as creating rules of law through participation in international conferences and international organizations.

Despite the fact that all the rules and principles, described above, are fundamental for the formation of subjects and sources of international law, it is vital to trace the evolution in these aspects. At the moment, one of the most common objects of international law are world organizations, in particular, those involved in commercial activities⁶. The fact is that despite their non-statehood or the absence of a law-making function, such subjects create documents and precedents that predetermine the behavior of other participants⁷. It should be noted that, although these firms are responsible for the laws of the countries where they operate, they are rapidly becoming subjects of international law. The consequence of this was the formation of a new source in the form of an agreement⁸. As already discussed above, international treaties are full-fledged sources of international law, but here is a different type of treaty⁹. At the moment, the agreements of international organizations, which have a civil law character, but concern the interest of several markets, serve as the basis for rule-making activities¹⁰. This is explained by the fact that the law is obliged to protect the interests of society, which is its key function¹¹. Since treaties follow this principle, namely they realize the interests of the parties to the relationship, they do not contradict international law itself.

The emergence of soft law has a positive effect on this situation. Soft law is not a custom, although these institutions share some common features. The main difference is that for customs, “law opinion” must occur on the part of the state, that is, the recognition of the norm of behavior as justified and complete, as well as further sanctioning of the custom¹². Sanctioning can occur by including a custom directly in legislation, by-laws, for example, using a blanket rule, or in another way, by recognition by judicial practice, authorized authorities¹³. Then the legal custom, the custom of business turnover, acquires its legal force and significance.

Soft law does not require recognition or implementation in the system of legislation of a particular state. The interested subjects themselves determine for themselves the importance and prospects of using soft norms of behavior, including states that are guided not by the specific legal force of the norms but by moral and political considerations¹⁴. The sanctioning of the norms of soft law ceases their existence – they are transformed into full-fledged legal norms. It is easier for a treaty to become a source in the context of soft law, because this phenomenon ensures that the criteria are reduced to recommendatory functions and the nature of the document¹⁵. This is very important, as agreements concluded between organizations cannot be of a law-making nature, but they fully realize a recommendatory function¹⁶. For example, Apple and Samsung decide to enter into a market integration agreement, as well as the provision of factories¹⁷. Such an agreement will be an ordinary civil law, but concluded between representatives of different states.

Due to the authority of the companies and the prominence of the process under consideration, the final document begins to perform a recommendatory function for other companies planning to implement a similar process. At the same time, when other corporations refer to the agreement between Apple and Samsung as a source, they will be right precisely because of the phenomenon of soft law¹⁸. Based on the foregoing, the sphere of international law has great opportunities in the form of simplification and motivation of international interaction.

Despite the general simplification and noticeable evolution of the legal sphere, it should be noted that this system has a significant drawback. The main problem of all that was analyzed above is the uncontrolled initiation of commercial organizations by the authorities. It is worth noting that international law is characterized by both regulatory and supervisory functions that must be performed¹⁹. However, in the current situation, one can notice the intervention of individuals and interests in the structure itself²⁰. In other words, the issue could become very serious and dangerous, namely that private commercial organizations, such as Apple, could become international arbitrators. In other words, they can be informally and tacitly endowed with such powers that can be interpreted as normative²¹. This endangers the very system of international law, which should be independent and impartial. Private organizations, on the other hand, have quite specific interests and goals and, accordingly, can begin to abuse the opportunities provided²². In order to prevent this from happening, it is necessary to significantly limit the possibility of various aspects becoming sources of law at the legislative level.

Conclusion

In conclusion, it is worth emphasizing that international law must develop permanently. This is explained by the fact that states and their relationships are evolving; therefore, the sphere must meet the requirements of modernity. The emergence of such a phenomenon as soft law cannot be interpreted unambiguously. Nevertheless, it can be argued that the rule-making system is moving towards simplification, consequently and expansion of opportunities for society. However, this process has negative consequences that need to be regulated and prevented. Otherwise, lobbying for the right is possible, which will lead to a lack of fairness and the appearance of partiality.

Reference

Kabumba, B. (2018). Soft law and legitimacy in international law. Development Law Publishing Company Limited.

Klabbers, J. (2020). International law. Cambridge University Press.

Shwartz, P. (2018). International law and development. Process, problems and promises. Edward Elgar Publishing Limited.

TICAN. (n. d.). Subjects of international law – In opposition to self-styled princes. Web.

Walter, C. (2007). Subjects of international law. Max Plank Encyclopedia. Web.

Footnotes

1. Shwartz, P. (2018). International law and development. Process, problems and promises. Edward Elgar Publishing Limited.
2. Shwartz.
3. Shwartz, P. (2018). International law and development. Process, problems and promises. Edward Elgar Publishing Limited.
4. Shwartz.
5. Shwartz.
6. Klabbers, J. (2020). International law. Cambridge University Press.
7. Shwartz.
8. Shwartz, P. (2018). International law and development. Process, problems and promises. Edward Elgar Publishing Limited.
9. Shwartz.
10. Shwartz.
11. Walter, C. (2007). Subjects of international law. Max Plank Encyclopedia. Web.
12. Kabumba, B. (2018). Soft law and legitimacy in international law. Development Law Publishing Company Limited.
13. Kabumba.
14. Kabumba, B. (2018). Soft law and legitimacy in international law. Development Law Publishig Company Limited.
15. Klabbers, J. (2020). International law. Cambridge University Press.
16. Kabumba.
17. Kabumba.
18. Kabumba.
19. TICAN. (n. d.). Subjects of international law – In opposition to self-styled princes. Web.
20. Kabumba, B. (2018). Soft law and legitimacy in international law. Development Law Publishig Company Limited.
21. Kabumba.
22. Kabumba.