Law and Justice in the Globalising World

LL.M.
(BLENDED LEARNING PROGRAMME)
COURSE 02 - LAW & JUSTICE IN THE GLOBALISING WORLD

Course Instructor: Prof. Ranjan William Chakrabarti

Associate Professor, Jindal Global Law School

Course Coordinator:
Prof. (Dr.) James J. Nedumpara, Professor & Executive
Director, Centre for International Trade and Economics
Laws
 Law and Justice in the Globalising World

Module 2 - Summary Document

Role of Law in Governing International Relations

This module covers an important article written by Harold Koh, a professor of

International Law. The name of the article is Why Nations Obey International
Law. The article will help in laying out the reasons and the rationale or the
motivation for nation-states to obey international law.
INTRODUCTION

It is a maxim that international rules are rarely enforced but usually obeyed.
According to Louis Henkin, “Almost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time”.
Nation-states are only one part of public international law. Multinational
enterprises or non-state actors may also fall within the domain of public
international law. Therefore, the larger question is: Why do the transnational
actors also comply with or obey international law most of the time?
Many countries, such as India, have a rule of law system. Having a statute or
legislation in place does not bring in a rule of law system. All actors will have to
obey the law internally. It is important to internalize the core elements of the
law. This helps in making the complaints with the law and legal institutions
more optimal.
If nation-states do not obey international law, or if there is no certainty as to
whether or not nation-states will carry out their international obligations,
especially international trade obligations, international environmental
obligations, international maritime obligations and international human rights
obligations, then multilateralism cannot be counted upon.
Considering an example of India and China, during the Trump presidency,
there were a number of trade wars between the United States and China. The
United States did not comply with its World Trade obligations and imposed
retaliatory tariffs on products coming from China, and China went for a tit-for-
tat retaliation as well. They applied tariffs and other duties on products coming
from the United States, especially on agriculture products. This is against
international obligations because both countries have signed international
treaties. In this case, there is a lack of respect or disregard for international
obligations.

DOES INTERNATIONAL LAW MATTER?

The central question still stands in international relations and in public

international law as to why nations obey the law. To answer this question,
 Law and Justice in the Globalising World

Harold Koh critically examined two books. One of the two books was written by
Abram and Antonia Chayes. The name of the book is New Sovereignty.
According to their formulation, nations obey international law not because they
are threatened with sanctions but because they are persuaded to comply by a
dynamic created by treaty regimes to which they belong. They argue that the
fundamental instrument of maintaining compliance with treaties and at an
acceptable level is an iterative process of discourse among the parties, treaty
organization and the wider public.
The other book is written by the New York University law professor Thomas
Frank, and the name of the book is Fairness Approach. In this case,
compliance is not much of a managerial process, but it is a fairness process,
and in this case, the countries are pulled towards compliance by
considerations or legitimacy.
SOME CRITICISMS OF INTERNATIONAL LAW

A realist criticism is based upon experience. According to it, international law is

not a law because it cannot be enforced. For example, if the Supreme Court or
the High Court has given a ruling, and if the parties do not comply with the
ruling, then the contempt procedure can be invoked. When faced with
contempt, the parties will be compelled to comply with the order. In the context
of international law, no such system exists. According to realist criticism,
international law is not a law because it cannot be enforced.
On the other hand, according to the rationalistic claim, the countries or the
nations obey international law only because it serves their national interest.
This is because when one country obeys international law with the expectation
that other countries will also obey it, there is a certain amount of reciprocity.
One of the major criticisms of Harold Koh is that both the approaches, i.e., the
managerial approach and the fairness approach, omit a thorough-going
account of the transnational legal process. In the field of international law, the
nation-states interact and engage with one another, but in the field of
transnational law, there are many transnational actors.

TRANSNATIONAL LEGAL PROCESS

The transnational legal process is a complex process of institutional interaction

whereby global norms are not only debated and interpreted but also ultimately
internalized into domestic legal systems.
For example, in 1994–1995, India did not have a domestic regime for the
enforcement of product patents, especially with respect to pharmaceutical
products. In 1995, when India joined the TRIPS Agreement, it was required to
 Law and Justice in the Globalising World

enforce product patents. India had to introduce domestic legislation for the
grounds of product patents for pharmaceutical products.
With respect to the transnational process, there is a complex process of
interaction happening and global norms are adjusted to the local situation, and
these global norms are debated, discussed and interpreted, and ultimately,
internalized by the domestic legal system.
Another important concept is called ‘discuss, engage and leverage’. Whenever
there is an international issue, and an extremely powerful nation is involved,
then the nation can push their agenda and enforce their own interest upon
other nations. This is unilateralism.
International law has undergone an apocalypse transformation. One of the
biggest changes in international law is the decline in national sovereignty.
Louis Henkin said that “sovereignty has gone into thin air”. In a globalizing
world, when the engagement between transnational actors and nation-states
becomes deeper and more pervasive, sovereignty gets remarkably diluted.
COLLAPSE OF PUBLIC-PRIVATE DISTINCTION

Another major change is the collapse of the public-private distinction. Nation-

states enter into agreements, and if there is a breach or some
departure from a particular norm, then other countries might have taken up the
matter before international tribunals, or in certain cases, they might have
sorted out the matter in the United Nations or other such bodies. The public-
private distinction has thinned remarkably in the last few decades. Now, there
are many transnational actors that involve private entities as well.
Another important point is the rapid development of customary and treaty-
based rules. Taking an example of Intellectual Property Rights (IPR). There are
many international treaties with respect to IPR. There is the Berne Convention
and the Paris Convention. These treaties were signed in the 19th century.
Furthermore, there is the Madrid Protocol, the WIPO Treaty, etc. The field of
international law is becoming bigger and richer. There is a complete
reconfiguration of the regime of international law. The system is also becoming
much more familiar to developing countries.
A HISTORICAL EXAMINATION
During the middle ages, international law and universal law merged with
ecclesiastical law. Ecclesiastical law is that branch of law that is decided and
shaped by the Roman Catholic Church. Under this concept, even a positive
treaty was considered to have been formed only because treaties were
confirmed with an oath, and since an oath is a sacrament, it was subject to the
obligations incurred to the jurisdiction of the church.
 Law and Justice in the Globalising World

HISTORICAL PERSPECTIVE
In the 14th century, the field of universal law or the law of the nations
underwent a change. Two Italian professors, called the Peruvian professors,
came out with the notion of private international law. This notion of private
international law is also referred to as conflict of laws.
Private international law is centred on the rights and obligations of individuals,
where the relevant facts are, wholly or in part, foreign. For example, if an
Indian citizen marries an American citizen, and if they have got a marital
dispute and want to sort out their differences, they may claim nuptial rights, or
they may go for a divorce. Such matters will have to be decided by a certain
kind of international law. It is called private international law.
HISTORICAL EXAMINATION
In private international law, one of the most important things is the trans-border
or the cross-border nature of the transactions. In the field of private
international law, in most cases, the transactions are carried out between
private individuals. Sometimes, they are done by public individuals. This is why
there is a clear distinction between public international law and private
international law.
The law of the nations was not confined to rules relating to passports,
ambassadors etc., but also about the law of the state and the individuals. In the
European countries, there was a clear development with respect to the
Maritime law, also called the Law of the Merchant.
When it comes to the legal systems, there were two strands of theories. One
strand is called monism, and the other is called dualism. A monistic version
means only one system. Therefore, there cannot be a domestic legal system
and an international legal system. The system must be one, or the system has
to be an integrated system. The term ‘monistic legal system’ points out a
unified legal system.
CUSTOMARY INTERNATIONAL LAW
Another important strand of international law is called Customary International
Law. This law is amorphous, unclear and not focused. This concept was
discovered or identified for the first time by a Spanish Jesuit called Francisco
Suarez. It is an important supplementary source of international law.
Hugo Grotius is considered to be the Father of International Law, and he
argued that the doctrine of ‘jus gentium’, which is a universal law for all men, is
simply not natural and is not derived from the right reason, but it is a
consequence of Volitional Acts generated by independent operation of the
human will, and he also suggested an international society.
 Law and Justice in the Globalising World

International law is not purely about the treaties or the conventions signed by
the countries. It is also about the customary practices between the countries,
and it is a branch of jurisprudence born of both nature and human beings. It is
driven by sovereignty concerns.
TRADITIONAL INTERNATIONAL LAW

The scholars of traditional international law have drawn a conceptual boundary

between municipal and international law.
In the field of international law, the relationships are based purely on
contractual terms. Two sovereign nations or entities enter into a relationship,
which is called either a convention or a treaty. When nations engage with each
other in order to create a binding legal obligation, sovereignty plays an
extremely important part.
However, to what extent is a country or a sovereign state bound by the terms
of the treaty? It is important to understand how treaties were signed as an
expression of sovereign power. Most of the international treaties originated
from or took the routes to the Westphalian notion. It was through the
Westphalian Treaty of 1648. The treaty also evinced or demonstrated the
power of the countries to enter into a treaty by virtue of their sovereignty.
According to the dualist system, international law is not merely the term signed
between two countries. It can also take certain elements of natural law. It may
also have certain elements of moral law and embody the principle of customs.
It is important to understand the concept of law among the nations. Law among
the nations will include treaties, which will remain the primary source of
international law, but in addition to treaties, customs play a crucial role.
A large number of scholars reject the monistic version of a single integrated
transnational legal system. In the context of a monist system, international law
is part of domestic law. It is part of a single unified, integrated system, and
there are many opponents to that candidate theory. The reality is that even
foreign transactions and international agreements can be enforced in a
municipal court only if the municipal legal system has permitted, incorporated,
or embedded that particular law.
Looking at the enforceability of international law, either in domestic or
sovereign international courts. According to Austin, international rules are not
really laws because, unlike domestic norms, they are not enforced by
sovereign coercion. The law can be characterized as a command, but in the
context of international law, there is no such command system, and there is no
sovereign to make a command, and therefore, there is no question or
sovereign coercion.
 Law and Justice in the Globalising World

LAW OF NATIONS: DUALISM CHALLENGED

According to Blackstone, common law has internalized the law of the nations.
Common law is a system of rules detectable by natural reason and established
by universal consent among the civilized inhabitants of the world to ensure the
observance of justice and good faith in the intercourse, which must frequently
occur between two or more independent states and individuals belonging to
both.
England domesticated the law of the nations into its own English legal
systems. Another prime example is that of the United States because the
United States was a colony of Great Britain. When the English made most of
the United States, they made sure that their own common law principles were
applied to them.
KANT: UNIVERSALIZATION OF LAW
Immanuel Kant is widely considered the Father of Human Rights. The Kantian
categorical imperative is considered to be one of the most important principles
in the field of moral and political philosophy, and it is also considered to be the
driving principle behind individual autonomy and human rights.
Kant had a vision of international laws of a purposive system. It is a purposive
system dedicated to securing peace and built on the cornerstones of justice.
Democracy and liberalism focused on the centrality of human rights.
Kant did not advocate a world government, but when countries become
individually autonomous units of governance, it is possible for the countries to
be governed by international norms, and these international norms can be
based upon cosmopolitan principles or universalized applications of the law.
BENTHAM: CODIFICATION OF UNWRITTEN LAW

Jeremy Bentham, being a universalist, spoke about the qualification of

customs. Customs can be formed in any part of the world. When two or more
nations govern their affairs in a particular manner for a fairly long period, then
there is an inference that the particular practice is capable of legal application.
International customs request a consistent, concordant and coherent practice.
International law, over a period of time, has been inspired by various notions of
justice. In the late 18th and 19th centuries, piracy, slave trade, prostitution,
and profiteering were the kinds of activities that were forbidden, and it was
forbidden by virtue of a treaty.
When civilized nations enter into a certain kind of practice, that practice will
have some kind of semblance of law, and Bentham recommends that these
customer practices will have to be codified in the law. When there is a rich
body of customs and practices, these practices will have to be codified into
something similar to legislation. In the context of international law, they are
 Law and Justice in the Globalising World

called ‘treaties’. In the context of demonstrate law, they are the domestic
statutes or legislations, and Bentham recommended something similar to the
creation of a common court of judicature.
MODERN INTERNATIONAL LAW

The First World War happened in 1914, and immediately after the war, during
the interwar years, three major watershed moments took place. The Treaty of
Versailles, which ended the First World War, was followed by three important
events. The first one is the Charter of the League of Nations, which was
enacted to place limits on the sovereign state to pursue war as an instrument
of national policy. This means that no country has the right to fight a war in
order to promote and pursue its own narrow self-interest.
The second watershed event was such that the legal order wanted to create
international legal institutions. The global community also created the
International Labour Organization (ILO). It became the first intergovernmental
organization, and the purpose of the organization was to promote social
welfare, to make sure that the workers are paid their dues and to ensure that
decent conditions of work and safety are promoted and advanced.
The third watershed moment is the Paris Peace Conflict, which sought to
generate proposals to remedy national conflicts. The purpose of international
law was to promote or preserve solidarity with fellow nations. The world that
emerged from the First World War was essentially rooted in cooperation and
solidarity.
CRITICISM OF INTERNATIONAL LAW

Some people argue that international law is a utopian concept because unless
there is a world government, it will remain a utopia-centred concept. Some
people call international law a legalistic or moralistic approach to certain
international problems.
According to H. L. A. Hart, international law is still not good law because it
lacks two features that are important for the concept of the rule of law. Firstly, it
lacks the secondary system of change and adjudication with the province for
legislators and courts. Therefore, in order to provide for a legal system under
the Hartian concept, there has to be a secondary rule of change and
adjudication.
Secondly, it does not have a unifying role of recognition, and there is no clear
source of law. The source of law, in international law, even according to Article
38 of the ICC statute, is fairly unclear. Judicial pronouncements, customary
international laws and the writings of well-established orders can all become
part of the sources of international law. In comparison to any domestic legal
system, the criteria for identification of rules and source of law under the
domestic legal system is entirely different from the system that exists in
 Law and Justice in the Globalising World

international law. According to Hart, nations do not obey international law, but
they do comply and conform with law; however, that is because of a moralistic
concern and not purely out of a legalistic concern.
TRANSNATIONAL LAW
Transnational law is constant with justice, but the nature of international law
and that of transnational law are extremely different.
With regard to transnational law, there are multiple internal actors and
multinational corporations or multinational standard-setting bodies involved.
There are a large number of private bodies that provide certification of a
product—for example, the ISO. ISO certification is a good verification of
product quality.
WHAT MAKES NATIONS COMPLY WITH INTERNATIONAL LAW?
Sanction is not the most important factor in making nations comply with
international law.
Another important element is transparency. The countries are obligated to
exchange information, provide transparency with respect to each of their
contacts and then report these facts to the concerned international
organizations. Most international organizations have a huge amount of data
and information. The participation of the international and non-governmental
organizations can also contribute to this discursive process where they also
participate. The non-state actors also participate in the decision-making
process.
MANAGERIAL PROCESS

Within the managerial process, there has to be a manager and a process. The
regime is the manager. The international treaty, the associated norms and the
international legal institution dealing with their particular regime could be the
manager. It could also be state actors, non-state actors, intergovernmental
organizations or a multiplicity of actors.
The manager or the regime will prepare documents, provide discussion papers
and conduct a series of discussions in order to inform the parties to save their
preferences. Once the party is engaged in a meaningful way in the discourse,
they can choose their options and frame their negotiating positions, and all
these processes contribute to a better understanding of the region, which
consequently leads to better compliance with the regime.
ITERATIVE PROCESS OF ENGAGEMENT
An iterative process is an interactive process, i.e., when nation-states meet. It
will be the country representative or the delegations of the country that meet on
 Law and Justice in the Globalising World

a regular basis and share data about the situations and the parties. They will
also try to identify the situation that raised significant compliance questions.
DIAGNOSIS OR THE SOURCE OF THE BEHAVIOUR

The third important element is the diagnosis or the source of the apparent
behaviour. When it comes to international treaties, the framework of the treaty
or the regime is decided by the most influential of the powerful blocks.
For example, looking at the climate change convention, which was under the
framework of the United Nations convention on climate change and the
UNFCCC, a large number of companies grouped together to make decisions.
They took a decision to cut down carbon emissions and decided what should
be the nature of external carbon emissions and what should be the goal by
which the target has to be met. All these issues are subject to
negotiation. When countries negotiate over treaties, they must identify the
possible areas where misbehaviour can happen or non-compliance can
happen in the future.
In this kind of situation, it is required to identify the concerns that some of these
countries may face, provide an exit option for these countries and provide them
with an extended period of time to make compliance with the treaties. These
are all parcels of the iterative or the interactive process.
If a country has certain difficulty in making complaints with national treaty
obligations, then such matters are taken by the country before the committee.
For example, the World Trade Organization has the BOP committee. It gives a
certain amount of flexibility and latitude to the country to make complaints with
international obligations.
WHY DO COUNTRIES STILL DISOBEY INTERNATIONAL LAW?
Sometimes, the treaty norms are themselves unjust, and situations change
over a period of time. What is required in that kind of situation is to make an
amendment or a modification to the treaty.
For example, during 1999 and 2000, there was an HIV crisis in South Africa,
and the South African government decided that it could no longer meet the
obligations of the international agreements, such as the TRIPS Agreement in
that particular case, and it will not be possible to provide complete protection to
intellectual property rights in the context of the international agreements. Then,
they decided to come up with a particular waiver, which is called the 2003
TRIPS waiver, and an amendment was carried out. This amendment came into
force in 2017.
It is again part of the interactive process because a party to an international
agreement will have to convince other countries that they are no longer in the
position to comply with the terms of the agreement that they had signed a long
 Law and Justice in the Globalising World

time ago and also since most of the agreements have got a long-time
operation.
NATURE OF DECISION-MAKING: DOMESTIC AND INTERNATIONAL

Considering the nature of decision-making in the domestic setting and also in

the international city, Abram and Antonia Chayes argue in their article that
there is a paradigm shift from a domestic private law model to a prospective
public law model in the United States. Looking at the role of a judge, judges
are passive participants in the process, and they have a blinkered jaw. Under
the private law method, they are in an extremely neutral empire, but under the
public law method of dispute resolution, the judges play a much more active
role.

In a traditional legal order, there is a norm and a set of rules. The set of rules
are formulated by the sovereign, and the citizens are required to comply with it.
Under the managerial system, law and legal institutions have a different road
and a different mandate; rather than formulate the law or the norms, the
manager engages in the constitutive institutions within the legal regime to
undertake discussions, discourses, dialogues and interactions with the
constituent stakeholders.
In this article, Chayes is trying to argue that the regulatory treaty and the
regime that is embedded are not seen as a system of prohibited norms but as
institutions of management of an issue over time.
Therefore, in a closely disputed matter, when the government thinks that they
have got a strong point of view and that they have a strong legal argument, the
reputational laws may not be a significant factor in complying with the treaty
provisions. When the government comes in with this retrospective amendment,
it could be violative of some of the international agreements. This is because
they think that the amendment is a legitimate exercise of a sovereign function
or the legitimate amendment of a law to make the provisions extremely clear.
ARE ALL INTERNATIONAL TREATIES EQUAL?

It cannot be said that all international treaties are equal. Most of the
international treaties are unequal. When there are 184 countries signing an
international treaty, only some of the most powerful countries such as the Quad
countries, including the United States, the European Union, Canada or Japan,
or the powerful developing countries such as India and China may be taking
part.
The real agreement is concluded between only one or two or maybe a few
countries. They did not invite some of the poor countries. In reality, most of the
international agreements may not have that level of equality or egalitarianism,
and that is why there are power-based agreements.
LEGITIMACY AS A MANAGERIAL PROCESS
 Law and Justice in the Globalising World

Legitimacy, as a managerial process, can bring a certain amount of fairness.

The important thing is procedural fairness. If every country can fully exercise its
sovereignty, then the world will be an extremely difficult place to live in. Most of
the actions and most of the decisions will be unilateral, and the impact on the
businesses and individuals will be extremely harsh. The managerial process
involved in an international setting brings in a certain amount of legitimacy or
acceptance. While inferring legitimacy, it is based upon procedural fairness.
Considering procedural fairness in a situation where one country would like to
put certain types of structures on another country, it cannot be done purely on
a unilateral basis. There must be a procedure.
One of the most important elements in most international agreements is that,
although the agreement may be secured in favour of certain countries, there
could be equal and non-discriminatory applications.
Another important process is due process as part of the fairness approach.
Due process is the requirement to give a notice to a country concert and
consult the country before an action is taken. In the field of international
economic treaties, the level of compliance is extremely high.
If one country does not comply with the treaty provisions, then the other parties
to the treaty can take a tit-for-tat action. In other words, they can take unilateral
actions, and when countries act in a unilateral manner, it can have an impact
on people and businesses all over. Therefore, with respect to international
economic treaties, the level or the nature of compliance is extremely high, but
when it comes to human rights treaties, climate change, environmental treaties
and labour law treaties, the level of complaints is extremely poor.
THOMAS FRANK’S FAIRNESS APPROACH
It is important to look at the fairness approach from an international perspective
as well. As mentioned earlier, most of the international treaties are unfair, or
they are concluded between unequal partners, and when treaties are between
unequal partners, there could be a certain amount of substantial unfairness in
those treaties. Thomas Frank also subscribes to the same view. According to
Frank, nations obey rules when the benefits of compliance exceed the cost. It
is a type of utilitarian concept, where the cost and benefits are evaluated, and
if the benefits outweigh the cost, then it is complied with.

Thomas Frank also argues that an international actor’s impulse or propensity

to comply with a treaty provision does not only derive from a mere cost-benefit
analysis or from a multitude of cost-benefit analyses. According to Frank, there
is a certain amount of solidaristic communitarian peer pressure that nations
feel like members of a club.
 Law and Justice in the Globalising World

Thomas Frank also embraces that international law is more than a system of
rules. In the context of Frank’s article, fairness is decided by the process of
discourse, reasoning and negotiation, and if nations internally consider or
perceive a particular international rule to be a fair rule, then the chances or the
likelihood of that international norm being obeyed is much higher.
Thomas Frank applies the Rawlsian Theory of Justice to international law, but
one problem that he faces is that the concept of justice, which is constructed
behind the veil of ignorance, which was referred to as the original position,
cannot be used in the context of international law.
With regards to legitimacy, Thomas Frank again argues that legitimacy, and not
justice, should be the prime God of an international rule system. Legitimacy is
a belief in the right process than in substantive outcomes. Legitimacy is about
the process, and therefore, it has got a morality of its own. A legitimate process
is a fair process. A major criticism is that Thomas Frank had acknowledged or
‘privileged’ a barrel process value system, and he gave it the appearance of
legitimacy over the Rawlsian idea of justice.
TRANSNATIONAL PROCESS: AN ITERATIVE PROCESS
The transnational process is an iterative and interactive process where the
state and non-state actors engage in the process of debating, discussing and
complying with certain types of norms. All these kinds of interactions and
discussions can lead to the settling of norms, which may be applicable to a
given situation. Under the transnational process, the moving party, the party
that takes the initiative to enforce the norm, attempts not to acquire the other
party simply but to internalize the new interpretation of the norm. The purpose
behind this transnational process is to bind the party and to obey the
interpretation as part of an internal value set.
This kind of transnational legal process is normative because it creates a
norm, is constitutive and is an integrating and dynamic thing at the same time.
The transnational legal process is a slow and accretional process, and it will
also make sure that once a particular country or a group of people or
transnational actors are confirming a certain kind of internal values over a
period of time, then new norms are created, and that is why it is an accretion
process.

COMPLIANCE WITH THE LAW

When it comes to an obligation of a country such as India, the sovereign
government will have to make that compliance requirement. But, when it
 Law and Justice in the Globalising World

comes to a different category of transnational law, maybe international banking

norms or international commercial transactions or simply restructuring or
sovereign wealth funds, in these areas, the laws do not bind the nations that
sign the law.
The obligations of the individual transnational actors are extremely different
from that of the sovereign government. When nations remain the prime
players, sanctions have a better or a greater role, but when it comes to
transnational non-state actors, sanctions do not have much force. The nature
of compliance, with respect to these two areas, is different. ‘
CONCLUSION

In every country and in every jurisdiction, there are hundreds and thousands of
legislations, but only a few legislations are complied with in an enlightenment
spirit. Talking about the concept of law as a system of rules, to create a system
of rules, there has to be secondary rules and rules of recognition. Most people
obey international law most of the time. The reason is coming from an
internalization process, an internalization of some of the norms that we think
will govern our lives, and this is happening even with respect to big and small
nations. Even big and powerful nations conformed to international law from the
internal sense of obligation.

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