Posts in Law

Positivism and Utilitarianism

POSITIVISM

According to Dias the positivist movement started at the beginning of the 19th century. It represented a reaction against the a priori methods of thinking which turned away from the realities of actual law in order to discover nature or reason the principles of universal validity. Hart pointed out that the term positivism has many meanings which one of them is that laws are commands. Law as command is associated with Jeremy Bentham and John Austin that both are the founder of the British positivism. Read More

Code of Conduct of Transnational Corporations

Transnational Corporation (TNC) is the most important and most visible innovation of the postwar period in the economic field. According to the document prepared by the Organisation for Economic Cooperation and Development (OECD), transnational enterprises usually consist of companies or other entities whose ownership is private, state or mixed, established in different countries and so linked that one or more of them may be able to exercise a significance influence over the activities of others and in particular to share knowledge and resources with the others. Read More

Control of Restrictive Business Practices

The relevant provisions of the set of Multilaterally Agreed Equitable Principles and Rules of the Control of RBP adopted by the General Assembly of UN should apply in the field of restrictive business practice of TNCs (Art. 35).

Taking into account the interests of all countries, particularly those of developing countries, the Set of Multilaterally Agreed Equitable Principles and Rules are framed in order to achieve the following objectives: Read More

Kinds of Globalization

Globalization in a literal sense is international integration. It can be described a process by which the people of the world are unified into a single society. This process is a combination of economic, technological, socio-cultural and political forces.

The term globalization generally means integration of economies and societies through cross country flows of information, ideas, technologies, goods, services, capital, finance a people. The word globalization in what Noam Chomsky calls a doctrinal sense is also used to describe the particular neo-liberal form of economic globalization. Read More

Transfer of Technology in International Economic Law

Transnational Corporations (TNCs) should conform to the transfer of technology laws and regulations of the countries in accordance with they operate. They should avoid practices which adversely affect the international flow and technology. They should follow the relevant provisions of the International Code of Conduct on the Transfer of Technology adopted by the General Assembly of UN (Art. 36).

Transfer of technology under this Code is the transfer of systematic knowledge for the manufacture of a product, for the application of a process or for the rendering of a service and does not extend to the transactions involving the mere sale or mere lease of goods. Read More

Hard Law and Soft Law

International governance has become increasingly legalized throughout the twentieth century. However, legalization is not binary which international law is not simply present or absent in a given issue area and makes the situation much more complex. In respect of legalization above, a better approach is to understand legalization as continuum, moving from soft law to hard law.

Hard law refers to actual binding legal instruments and laws. In contrast with soft law, it gives states and international subjects actual binding responsibilities as well as rights. Regarding to the definition, to constitute law, rule, instrument or decision must be authoritative and prescriptive. In international law, hard law includes self-executing treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries and other international subjects. Read More

Permanent Sovereignty over Natural Resources

The principles of Permanent Sovereignty over Natural Resources build on traditional state prerogatives such as territorial sovereignty and sovereign equality of states. This permits states to freely determine and apply laws and policies governing their people and territory under their jurisdiction and choose their own political, social and economic systems.

Among the numerous resolutions, the law-making United Nation General Assembly Resolution 1803 (XVII) of 14 December 1962 on Permanent Sovereignty over Natural Resources (PSNR) stands out  which was generated after lengthy studies on the topic had been conducted by the Economic and Social Council, the UN Secretariat and the Commission on Permanent Sovereignty over Natural Resources. Read More

Charter of Economic Rights and Duties of States

The Economic Charter consists of 34 articles and a preamble. It is divided into 4 chapters, i.e.: (a) Fundamentals of International Economic Relations (Article 1); (b) Economic Rights and Duties (Article 2-28); and (c) Common Responsibility towards the International Community (Article 29-30); and (d) Final Provisions (Article 31-34).

The preamble declared the fundamental purpose of the charter is to promote the establishment of the NIEO based on equity, sovereign equality, interdependence, common interest and cooperation among all states, irrespective of their economic and social system. It also emphasizes the need to establish and maintain a just and equitable economic and social order through: Read More

New International Economic Order

Colonialism and imperialism which happened in the old order of the world created the worst economic disorder, especially on a wide economic inequality between a few prosperous countries and a large number of poor countries. In addition, though the principle of laissez faire is preached, in practice, non discrimination and free trade has not been applied.

In this old era, there were many colonial countries exploited by the developed countries. In the name of free trade and enterprise, the transnational corporations of industrialized countries controlled production and trade of vital raw materials of the developing countries. Because of this condition, the developing countries demanded the greater participation in international trade rather than technical assistance and financial aid. Their demand is to rebuild the structure in international relations so-called New International Economic Order (NIEO). Read More