Aini Aryani, LLB (Hons)

DEFINITION

Law is that element which binds the members of the community together in the adherence to recognized values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulation

International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent (element of international law by Wheaton). It can be regarded as laying down as established practice of international law that in the absence of stipulation a new state takes over and becomes bound by the liabilities of its predecessor.

The expression ‘International Law’ and ‘Law of Nations’ are synonymous and are equivalent terms. Professor Charles Cheney defines International Law as that body of law which is composed for its greater part of principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other. While according to Oppenheim, Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by States in their intercourse with each other.

Public international law (or international public law) concerns the relationships between sovereign nations. International law consists of rules and principles which govern the relations and dealings of nations with each other. It is developed mainly through multilateral conventions. Its modern corpus started to be developed in the middle of the 19th Century.

International law is divided into conflict of laws (or private international law) and public international law (usually just termed as international law). The former deals with those cases in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts. For example, if two Englishmen make a contract in France to sell goods situated in Paris, an English court would apply French law as regards validity of that contract. By contrast, public international law is not simply an adjunct of a legal order, but a separate system altogether.

NATURE OF INTERNATIONAL LAW

One of the most controversial issues that has long been debated and discussed and on which the opinions of the jurists are sharply divided since the beginning of the sciences of law of nations concerns the status of International Law. Although rules regulating the relations of States are referred to International Law in practice consistently since 200 years, a number of jurists have expressed doubts on the question: Is International Law really law? One view is that International Law is not a true law. It is a code of rule of conduct of moral force only. Another view is that International Law is a true law, and it is to be regarded as law in the same way as that of ordinary laws of a State which are binding upon the individuals.

Austin’s View

According to Austin, international law is not legally binding on States. Law is the command of the sovereign attended by sanction in case of violation of the command. In the other words, law should be limited to rules of conduct enacted by determinate legislative authority and enforced by physical sanction. The superior according to him is the real sovereign. The definition contains two important elements. Firstly, law is command enacted by the sovereign legislative authority i.e., any rule which is not enacted by sovereign or superior cannot be regarded as law. And secondly, it must be enforced by the sovereign authority i.e., if laws are violated, there should be adequate sanction behind it.

Logically, if the rules concerned did not in ultimate analysis issue form a sovereign authority, which was politically superior, or if there were no sovereign authority, then the rules could not be legal rules, but rules of moral or ethical validity only. Applying this general theory to international law, as there was no visible authority as legislative power or indeed with any determinate power over the society of the States, Austin concluded that international law was not true law but ‘international positive morality’ only analogous to the rules binding a club or society.

Oppenheim’s View

Oppenheim says that law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power According to this definition, essential conditions for the existence of law are threefold. Firstly, there must be a community. Secondly, there must be a body of rules of human conduct within that community, so that the community may be orderly governed. All the communities submit to the rule of law because they wish to afford due respect and protection to the dignity of men and nations. And thirdly, there must be common consent of that community that these rules shall be enforced by external powers. It means that it is not necessary that rules should be enacted through law-making authority or there should exist a law administering court within the community concerned.

ANALYSIS

Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them.

The rules of International law must be distinguished from what is called international comity, or practices such as saluting the flags of foreign warships at sea, which are implemented solely through courtesy and are nor regarded as legally binding. Similarly, the mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one both as regards its contents and its form, while the concept of international morality is branch of ethics. However, this does not mean that international law can be divorced from its value.

CONCLUSION

It may be concluded that at present, World is, in reality, regarded as an international community. John Austin regarded International Law as a ‘positive morality’ in the 19th century, when international community lacked legislation, a court, sanctioning powers and enforcement machinery. And in view of all these if he concluded that International Law is not a true law, perhaps he was not wrong. But presently, international legislation has come into existence as a result of multinational treaties and conventions. These include the recognition that certain rules have the character of jus cogens, which reduces the area for the operation of purely consensual rules, and establishes that within general body of rules of the International Law there exists superior legal rules, with which rules of a lower order must be compatible.

Practice of states suggests that they consider themselves bound by such rules. If rules are violated by a State, sanctions may be applied against it not only by the aggrieved State itself but collectively by the United Nations Organization (UNO) as well. Further, international community has a Court (International Court of Justice), whose decisions are binding upon the parties to a case. If a party falls to perform its obligations incumbent upon it under a judgment rendered by the Court. Security Council of the United Nations is empowered to take measures to enforce the decisions of the Court, if the aggrieved party seeks the help of the Council.

Existence of International legislation, a Court, sanctioning authority and the enforcement machinery are the developments of the present century. Personally, I agree with the view of John Austin. But, the Statement of “International Law is a true law” is evident even if Austin’s definition is accepted. In the light of these developments, perhaps one would not hesitate to call International Law as a true law even if Austin’s definition of law is accepted.[]


Bibliographies:
1. Law Dictionary, 1999. by Mian Asad Hakim, Lahore: Mansoor Book House, First Edition.
2. Starke’s, J.G., Introduction to International Law, New Delhi: Aditya Books (P) Ltd., 1989.
3. Shaw, Malcolm N., International Law, Cambridge: Cambridge University Press, Fifth Edition, 2003.
4. Oppenheim, International Law, Vol. 1, Eight Edition (1995).
5. Agarwal, H.O. Dr., International Law , Allahabad: Asia Press, Third Edition, 1995.
6. http://en.wikipedia.org/wiki/international_law

INTRODUCTION

a). Private Companies
Private companies are all companies that are not public companies. A private company is not permitted to offer its shares to the public. Due to the capitalization requirements, the vehicle tends to be used for smaller businesses. Where a private company is limited by its shares, shareholders are liable to contribute to the assets any unpaid amount on shares issued to that shareholder. The nominal value of the shares, including premiums payable on subscription, determines the amount which is payable. Where a private company is limited by guarantee, shareholders will be liable to contribute to the assets of the company the amount required for payment of the company’s debts and costs of winding up, up to the maximum set out in the memorandum.

b). Public Companies
A public company must be limited by shares; the memorandum must explicitly state that it is a public company. The name must end with “public limited company” or the abbreviation "PLC". If there is less than two shareholders of the company for more than six months, the single member will be jointly and severally liable with the company for its debts, thus limited liability protection will be lost, as the company does not satisfy the requirements of the Act.

DIFFERENCES BETWEEN THE TWO COMPANIES

1. Private company is privately held. This means that in most cases, the company is owned by the company's founders, management or a group of private investors. A public company, on the other hand, is a company that has sold a portion of itself to the public via an initial public offering of some of its stock, meaning shareholders have claim to part of the company's assets and profits.

2. A private company’s memorandum and articles of association need only be subscribed by two persons, and the members of a private company only incur personal liability for its debt if its membership falls bellow two. While a public company is not so.

3. A private company may commence business on its corporation, it does not hold a statutory meeting or issue a statutory report and it may issue shares and debentures without delivering a statement in lieu of prospectus to the Registrar of Companies. While a public company is not so.

4. A private company may not issue share warrants or freely renounceable letters of allotment in respect of its share. The Companies Act 1948 does not expressly so provide but no effective restriction could be imposed on the transfer of the company’s shares in compliance with the Companies Act 1948, if they were represented by share warrants or such letters of allotment. However, there is nothing in the Act to prevent a private company from issuing bearer debentures or from issuing renounceable letters of allotment in respect of its shares of debentures, provided in the case of shares, that they are subject to some restriction on their transferability both while letters of allotment are outstanding and when they are eventually registered in the register of members.
5. Formation of a public company requires a minimum of two directors. In general terms, anyone can be a company director, if they have fulfilled the required rules. On the other hand, a private company need have only one director. Two or more directors of a private company may be elected by a single resolution at general meeting, a director of a private company which is not subsidiary of a public company does not retire by operation of law at the annual meeting, nor is necessary for a resolution to elect or re-elect such a director.
6. Unless its articles otherwise provide the quorum at a general meeting of a private company is two persons present in person. A member may appoint only one proxy to represent him at such a meeting unless the articles permit the appointment of more than one, and any proxy may speak as well as vote at the meeting.

7. With its annual return a private company must send to the Registrar of Companies a certificate by signed by a director and the secretary that the company has not since the date of the preceding annual return, or, in the case of the first return, since the date of its incorporation issued an invitation to the public to subscribe for its shares or debentures and, if their company’s membership exceeds fifty a further certificate that the excess consists of members who are employees of the company or former employees who became members while employed by it.

8. Difference between the two types of companies deals with public disclosure. If it's a public U.S. company, which means it is trading on a U.S. stock exchange, it is typically required to file quarterly earnings reports (among other things) with the Securities and Exchange Commission (SEC). This information is also made available to shareholders and the public. Private companies, however, are not required to disclose their financial information to anyone since they do not trade stock on a stock exchange.

9. The difference in main advantage: Public company has ability to tap the financial markets by selling stock (equity) or bonds (debt) to raise capital (i.e. cash) for expansion and projects. While private company’s advantage is that its management doesn't have to answer to stockholders and isn't required to file disclosure statements with the SEC. However, a private company can't dip into the public capital markets and must therefore turn to private funding, which can boost the cost of capital and may limit expansion. It has been said often that private companies seek to minimize the tax bite, while public companies seek to increase profits for shareholders.

10. Private companies may issue stock and have shareholders. However, their shares do not trade on public exchanges and are not issued through an initial public offering. In general, the shares of these businesses are less liquid and the values are difficult to determine. A public company has sold a portion of the business to the public via an initial public offering. IPO can generate intense news coverage and going public can be seen as coming of age for companies in hot sectors.

Oleh: Aini Aryani

Kekuatan dalam kelembutan,
Kesetiaan dalam kasih sayang,
Keperkasaan dalam pengorbanan,
Ketabahan dalam senyum,
Ketulusan dalam pengabdian,
Bahkan bahasa cinta dalam airmata,
Dialah…WANITA.

Para wanita sering menganggap bahwa dirinya lemah, tapi sebenarnya merekalah yang terkuat, namun tidak pernah menyadarinya. Seorang bahkan lebih dari 1 orang manusia pun bisa berada dalam rahim seorang wanita yang kemudian dilahirkannya ke dunia dengan keyakinan dan kekuatan.

Wanita diberi pula kesetiaan dalam kasih sayang, juga kepekaan untuk mampu menerjemahkan bahasa bayi yang belum mampu berucap. Seorang ibu sanggup bertahan untuk tidak terpejam ketika sang bayi mulai merengek di malam yang tua. Rasulullah bersabda bahwa Apabila semalaman seorang ibu tidak tidur karena merawat anaknya yang sakit dengan penuh kasih sayang, maka Allah SWT memberinya pahala seperti memerdekakan 70 orang hamba dengan ikhlas untuk membela Agama Allah SWT.

Wanita mulia diberikan keperkasaan dalam pengorbanan. Tatkala Asma binti Abu Bakar melihat Abdullah bin Zubair (puteranya) dibunuh dan disalib, dengan tegar Asma berucap; “Bukankah sudah saatnya prajurit berkuda ini turun dari tunggangannya?” Wanita mulia lain bernama Al-Khansa’ memiliki jiwa setegar karang dan ketulusan dalam pengorbanan. Ia telah menyumbangkan empat orang puteranya di jalan Allah. Ketika mereka terbunuh di medan perang, ia berucap; “Segala puji bagi Allah yang telah memuliakanku dengan menjadikan mereka sebagai syuhada di jalan-Nya.” Wanita bahkan diberi keperkasaan yang dapat membuatnya tetap bertahan saat semua orang sudah putus asa.

Wanita memiliki airmata untuk mengungkapkan begitu banyak perasaan yang ia miliki. Ia menangis dalam keharuan, bahagia, kebanggaan yang sangat, rindu yang menyeruak, penantian yang mencemaskan, penyesalan yang mengiris, atau dalam luka yang menyakitkan. Tak semua wanita mampu mengekspresikan perasaannya dalam kata ataupun laku, hingga hanya dengan airmata ia dapat meluapkan apa yang ia rasakan, meski hanya dia dan Tuhan yang tahu bahwa ia tengah menangis untuk seseorang atau sebuah peristiwa.

Betapa uniknya menjadi seorang wanita. Hingga dalam kelembutannya tersimpan kekuatan yang mampu melunakkan sikap lelaki yang membatu. Senyum seorang ibupun mampu mencairkan rasa cemas yang membeku di hati puteranya.

Wanita dianugerahi pula kebijaksanaan dan kemampuan untuk memberikan pengertian dan menyadarkan bahwa suami yang baik adalah yang tidak pernah melukai isterinya. Walau seringkali pula kebijaksanaan itu akan menguji setiap kesetiaan yang diberikan kepada suami agar tetap berdiri sejajar, saling mengisi dan saling menyayangi. Wanita juga diberi kekuatan untuk membimbing suaminya melalui masa-masa sukar dan menjadi pelindung baginya. Sebab, bukankah tulang rusuk yang melindungi setiap hati dan jantung agar tak terkoyak..?[]

*Tulisan ini pernah diterbitkan oleh Buletin Dedikasi Pakistan, edisi Maret 2008