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. Tesn 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 Iraqs situation i.e. Saddam
Husain to be held accountable. This all was expected out of the U.S. as they have,
previously, in the Miloevi 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
prosecutors office and full cooperation with the tribunal in the U.S. legal framework.
Mr. Fernando R. Tesn, 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 acts 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 the
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. Tesn 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.
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New Title

Impediments To The Efficacious Obedience Of International Law

Words: 1256

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Brian D. Lepard, Harold Hongju Koh, Fernando R. Tesn and Hilary Charlesworth, 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