Corporate criminal responsibility (Essay Sample)

CHAPTER ONE
1.0 IS INTERNATIONAL LAW REALLY LAW?
"Every society whether it be small or large, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts have all been spelt out within the consciousness of that community”[M .N. Shaw, International Law ( 3rd edn ,1995) p 1]
This framework is what is referred to as law. It is what binds members of a given community together. The need for law can be traced to the time when man still lived in a state of nature when man discovered that life in a state of nature without law was as Thomas Hobbes puts it short, unbearable, brutish and nasty. Man then decided to come together and install a sovereign whom they gave all their rights to exercise on their behalf and make law to govern them. Therefore, the existence of rules and regulations is the basis for peaceful coexistence of people and nations around the world.[See J Locke, Two Treatises of Government" in Llyod of Hampstead and Freeman, M.D.A Lloyds Introduction to Jurisprudence,( 7th edn ,2001 ) p 145- 150] [See T Lawal, International law and municipal law: The interface available at website accessed on 1 May 2012]
International law is an example of a framework developed to govern society. It has been defined differently by different people with others simply referring to it as the law of nations as it governs states unlike municipal law which governs citizens of that given state. In the SS Lotus France v Turkey’s case international law was defined as
International law is law that governs relations between independent states. The rules of law binding states therefore emanate from their own free will as expressed in conventions (treaties) or by usage (customary state practice) generally accepted as expressing principles of law and established in order to regulate relations between these co-existing independent communities or with a view to achieving common aims[SS Lotus France v Turkey 10, 1927, P CIJ Serial A No 18.]
Basically International law is the law that governs human activities and relationships at the international level.It governs states and international organizations. Much has however changed with time so that today international law governs not only states and international organizations but also individuals, transnational corporations as well as non- governmental organizations.[What is International Law available at website accesed on 2 May 2012]
International law is divided into public international law and private international law. Public international law governs the relations of states and other subjects of international law private international law on the other hand govern private individuals.
1.1 Sources of International Law
International law is developed in a number of ways. First, it comes out of international agreements and treaties between states. Treaties are the most important source of international law. Secondly, customary practices that evolves over time which is referred to as customary international law. Third, general legal principles that are common to a significant number of states can become part of international law. Finally, the work of international legal scholars also forms international law.[B Eric, "International Law." Beyond Intractability. (eds). Guy Burgess and Heidi Burgess. Conflict Research Consortium September 2003 available at . Website accesed on 2 May 2012]
1.2 The legal quality of international law.
Irrespective of the above definitions questions have arisen as to whether international law should be accorded the status of law. Many people as well as international law scholars have questioned
the legal quality of international law. To that effect M N Shaw is of the view that the first reaction to international law is to question its legal quality.[International Law, (4th edn,1997) Cambridge University Press Pg 5]
According to some legal positivists international law is not law properly so called. John Austin opines that there is need to separate law properly so called and law improperly called. He is of the view that laws are commands by a sovereign backed by sanctions therefore for international law to be properly called law there must be a sovereign body capable of issuing commands backed by sanctions. To him since international law emanates from different states and not from a single sovereign it is merely positive international morality.[R. J A.C .Arend and R. D V. Ligt (eds)International Approaches from International Law and International Relations (2nd edn,1996)Oxford University Press quoting John Austin The Province of Jurisprudence Determined (1832) at p 57]
Hans Kelsen agrees that coercion represents an essential element of law but then differs with Austin’s view that sanctions must be negative, although he agrees that international law is a legal system from the point of view of its role he classifies it as "authentic law in primitive form”[R .J .A C. Arend and R.D.V Ligt (eds)International Approaches from International Law and International Relations (2nd edn,1996)Oxford University Press quoting Hart’s General Theory of Law and the State , A.Wedberg trans Cambridge Mass Harvard University Press 1945 at p 57]
M N Shaw disagrees with the views of Austin and Kelsen he states that "to see the sanctions of international law in the states’ rights of self-defence and reprisals is to misunderstand the role of sanctions within a system because they are at the disposal of the states, not the system itself." To him putting the element of sanction at the forefront of theories seeking to establish the legal quality of international law results into difficulty because international law lacks a coherent, recognized and comprehensive framework of sanctions.[M N Shaw , International Law ( 3rd edn ,1995) p 5] [Ibid]
H LA Hart also disagrees with Kelsen’s and Austin’s view that sanctions are necessary element of the legal system. According to him law is an aggregation of obligatory norms which consists of primary and secondary rules. Primary norms are those telling human beings what not to do while secondary rules are rules of adjudication. Any law that lacks secondary rules is declared primitive law. He opines that since international law lacks secondary rules with which the validity of its substantive provisions can be assessed it is not a legal system at all but merely a collection of rules. Rules according to him mean accepted standards of conduct supported by certain forms of social pressure which can be observed and categorized as so.[M N Shaw, International Law ( 3rd edn ,1995) quoting H L A Hart ,The Concept of Law (1961) p 209]
The absence of international legislature, international court to enforce international law and an international government are the main reasons as to why the question as to whether international law is law is often asked. H.L .A Hart raises the concerns. He states that:
"[The] absence of international legislature, courts with compulsory jurisdiction and centrally organized sanction has inspired misgiving, at any rate in the breast of legal theorists. The absence of this institutions means that the rules for states resemble that simple form of social structure consisting only of primary rules of obligation, which when we find among societies of individuals, we are accustomed to, contrast with a developed legal system. It is indeed arguable, as we shall show, that international law not only lacks the secondary rules of change and adjudication which provide for legislative and courts, but also a unifying rule of recognition specifying ‘sources’ of law and providing general criteria for the identification of its rules. These differences are indeed striking and the question is international law really law? Can hardly be put aside”[Supranote 12]
Other writers accept that international law is law and argue that positivists use municipal law as a model for law in general and that is the reason as to why according to them international law is not law. They argue that there is need for recognition of the fact that international law operates in a different plane. One S Rosenne stated that,
International law is a law of co-ordination not as is the case of most internal law, a law of subordination. By law of co-ordination we mean to say that it is created and applied by its subjects, primarily the independent states directly or indirectly for their own common purpose.[S Rosenne, Practice and Methods of International Law (1984) Dobbs Ferry New York : Oceana , p 2]
International lawyers have also argued that there can be a law without a sovereign for example customary international law. According to these scholars there exists a set of law that emerges from practice and not from a sovereign, and that the prescription role of the sovereign can be exercised by other actors that is relevant international organizations.
Although there is no global authority with the mandate to enforce international law there are other mechanisms that can be used to enforce international law. There is a mechanism commonly known as self – help. This is simply unilateral counter measures taken by a state against another state who feels that the other state has acted contrary to international law and thus injured its interests. This can be implemented by closing down its embassy as well as other discretionary measures such as use of force. Use of force is however subject to other international rules (self- defence)
International law can also be enforced through sanctions. That is a group of states can arrange to subject a target state to enforcement actions that entails exclusion from either all or selected forms of international cooperation for instance trade sanctions,...