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Why Obey International Law? Theories for Managing Conflict with Municipal Law

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  Tutorial I   Manu Gupta BBALLB(C) Roll no. 39 PRN 11010224161 Public International Law Why Obey International Law? Theories for Managing Conflict with Municipal Law Introduction This article essentially communed the concept behind the reason for and the extent of the obedience of International Law by nations. Three of the panelists talked about the obedience of International Law (further referred as IL) and each of them, very extravagantly, enlightened the explanation to the main question at hand via three different point of views. The first panelist, Harold Hongju Koh raised many queries to be answered with respect to International law. He looked into the reason as to why should the nations obey IL. He also laid emphasis on the non-obedience of IL of three countries, namely North Korea, Iraq and U.S while explaining the importance of trans-national legal process and norm internalization in better compliance of IL. The second panelist, Fernando R. Tesón stressed upon the importance of human values with respect to state values in the interpretation of IL. The main focus of his comments is upon the premise that there can be no objective, value-free ascertainment of legal rules. Also he laid emphasis on the humanitarian intervention and the justification of harm to innocents. The third panelist, Hilary Charlesworth critically focused upon the lack of importance and internalization of feminist theories in the IL. She also gives the feminist reasons for the nations to obey IL. And finally, Mr. Brian D. Lepard summarized the views of all the dignitaries and answered the question at hand in an evocative and intelligent manner. Analysis The article accentuates the reasons behind the obedience of IL, advantages for following IL and the extent to which IL is followed by the nations. The article consists of comments of the three panelists at the annual meeting of ASIL. All the three panelists conveyed their views upon to answer the question at hand in the conference. Mr. Harold Hongju Koh expressed his take onto the reasons for nations to obey IL, as because, there is a coercive threat, there is self-interest of the nations present, the laws are premised as fair, they are accountable to a community and lastly, because there exist legal process for the violators. He said that the compliance of IL would come from norm internalization and transnational legal process. He mentioned the application of transnational legal process in case of non-obedience of North Korea. Also, he criticized the Bush administration in the U.S. for abandoning the transnational legal process approach as well as for worsening the case in Iraq by forming extreme alternatives of action of attacking or doing nothing. His point was that the third option was also available of legal process and disarmament and get the primary culprit behind Iraq’s situation i.e. Saddam Husain to be held accountable. This all was expected out of the U.S. as they have, previously, in the Milośević handled the matter implementing the transnational legal process approach extremely expediently. There was a mention of instances when U.S. also failed to comply with IL i.e. un-signing of the International Criminal Court (ICC), disparaging the Geneva Convention and instituting death penalty. He articulated that the U.S., under the Bush administration following the approach of strategic unilateralism and tactical multilateralism, lost its diplomatic capacities as well as constricted its sovereignty after diminishing its influence in international regimes. The suggestions by him included U.S. to adopt the norm internalization approach for Iraq and a new transnational legal process approach via the creation of a new agreed framework, for Korea. Also, he mentioned the need of internalization of support for ICC, responsible prosecution for prosecutor’s office and full cooperation with the tribunal in the U.S. legal framework .  Mr. Fernando R. Tesón, in his comments gave importance to the interpretation of legal rules. He stated that IL should always be interpreted with human values in mind as without that, the international lawyers read IL in the light of their own values and state values. Add to this problem, the perplexity of the concept of Customary International Law and by the lack of institutional mechanisms to decide among clashing interpretations of the IL also pose as stupefaction for the world. He problem gets even severe when treaty law is pondered as self-serving interpretations of treaties are usual, and disputes about treaty interpretation are not usually submitted to authoritative settlement. He also justified the act of killing innocent in some situations where the act fundamentally has good consequences , the committer has bonafide intentions and the act’s positive significances outweigh its negatives. This has been accepted by the concept of Humanitarian Intervention. The third panelist, Hilary Charlesworth, expressed the feminist perspective for the IL obedience. She laid emphasis over the fact that feminist theories are just a formality and deserve a lot more attention in the International as well as Municipal Legal framework. She was with the point of removing the exclusion of women form the She related the feminist approach to the theme of the conference with three points. First, a reason for nations to obey IL is that it gives much greater attention to the position of women as compared to most of the national legal systems. Secondly, the number of women in the administration of the International Organizations such as International Court of Justice and International Law Commission is very low and IL discriminates against women by assuming a male norm and it pays very insignificant amount of thoughtfulness to feminist concepts. And lastly, she comments that as for the matter of conflict between Municipal and International Law, together making attempts to reverse the exclusion of women may lead to a more beneficial and fulfilling relationship. Personal Comments This article addresses to a serious issue of obedience of International Law and the management of the conflicts between the Domestic law of the nations and the IL. The panelists’ comments contained some suggestions that hold much importance in th e International Legal scenario today. Thus, the article seems to be related to the course of International Law as it broadens the students’ perspectives of understanding the issues of IL and also, it could prove to be fruitful if the propositions in it are given weightage and implemented successfully. I feel that the article is very well written covering all the points efficaciously and providing many a suggestions and answer the theme of the conference entirely. I especially liked the comments of Mr. Harold Hongju Koh as he suggested the very reasons of obedience of IL by the nations as well as he brilliantly put together many a suggestions for the better obedience of IL rules by implementation of norm internalization and transnational legal process. I also liked the point where Mr. Fernando R. Tesón criticized the subjective interpretation of the rules, though, the justification given by him for the taking of innocent lives is on the verge of vagueness and could be misused if implemented. As for the comments of Mrs. Hilary Charlesworth, I liked the objective of her views though I disliked the way of presentation of her points as she forthrightly accused IL for being discriminatory to women to a large extent as well as some unnecessary relation between the international law with feminism at the third point of her reasoning given for the obedience of IL.  i   New Title Impediments To The Efficacious Obedience Of International Law Words: 1256 i               , “Why Obey International Law? Theories For Managing Conflicts With Municipal Law”, Proceedings of the Annual Meeting (American Society of International Law), Vol. 97 (APRIL 2-5, 2003), pp. 111-123
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