1

O.P. Jindal Global University

Jindal Global Law School
Internals Exam– 1
(Law & Justice in the Globalizing World)

SUBMITTED BY:

GOURI PRADEEP
 2

PART -A

Question 2

What shortcomings does Koh identify in the Abraham Chayes’s Managerial Model and
Franck’s Fairness Model. How does the ‘transnational legal process’ model overcome
these shortcomings?

International law is the set of rules that most countries obey when dealing with other
countries.1 It is the set of rules that regulates the inter-relationships of sovereign states and
their rights and duties regarding one another. It is also called public international law or the
law of nations, the body of legal rules, norms, and standards that apply between sovereign
states and other entities that are legally recognized as international actors. Jeremy Bentham
defined international law as the collection of rules governing relations between the states or
nations. Now it’s rapidly growing with complex rules and principles and assertions coupled
with sophisticated structures and processes.

Article 38 (1) 2 states the sources of international law such as treaties, customs, and general
principles. Treaties are agreements that participants are bounded by through negotiated terms.
The rule of customary law must be widespread and consistent with the state practice and
there must be a legal obligation to believe in existence of such law. At last, the general
principles of law will be common to all national legal systems , in so far as they are
applicable to the relations of States.

International law is very important as it connects different nations together and provides a
platform to put forth ideas, thoughts, and opinions across each other.

Harold Hongju Koh is an American Professor of International Law at Yale Law School. He is
one of the leading experts in public and private international law, national security law, and
human rights.3 Harold Hongju Koh was sworn in as Assistant Secretary of State for
Democracy, Human Rights and Labor on November 13, 1998. A Korean American, he was
nominated by President Clinton on September 10, 1998, and confirmed by the Senate on
October 21, 1998.4

1
Cambridge Dictionary
2
The Statute of the International Court of Justice
3
https://law.yale.edu/harold-hongju-koh
4
https://1997-2001.state.gov/about_state/biography/koh.html
 3

Yale Law Journal article 5which was published in the year 1997 gave 5 answers to the first
question which is why do nations obey international law? The answers given by Harold Koh
was (1) reasons of power and coercion, (2) reasons of self-interest, (3) reasons of liberal
theory, both rule legitimacy and political identity, (4) communitarian reasons, and (5) legal
process reasons.
Abraham Chayes adopted the managerial approach. He stated that non-compliance arises
from the ambiguity and indeterminacy of treaty language, limitations on the capacity of
parties to carry out their treaty undertakings and the temporal dimension. 6 The managerial
approach states that compliance can be acquired through cooperating with each other. It
shows international law as a system to manage international affairs. So, the states obey
international law because of the three factors which are:
1. Compliance will help in reducing transaction costs and increases efficiency,
2. States will be persuaded to comply with the treaty regimes as they have given consent
by themselves and must cooperate with the participating states.
3. Norm of compliance that must be followed.

So, this method shows clarity and transparency helps in the treaties will help in compliance.
According to Harold Koh this approach is incomplete in four respects. Firstly, it shows the
power of the managerial mode and weakness of the enforcement whereas they complement
each other. Secondly, the theory suggests that compliance comes from fear not of sanction,
but loss of reputation but the loss of reputation only occurs when a non-complying party
defies a mutually accepted interpretation of the treaty norm. Thirdly, it omits a detailed
description of how states internalize the constraining norms. Fourthly, it emphasises a lot in
securing compliance which can even be undesirable if the treaties become undesirable by
being unfair.7

Thomas Franck states that the nations obey international law when the benefits exceed the
cost. This theory is known as the legitimacy theory. It states that the nations obey according
to the coherence, adherence, determinacy, and symbolic validation. Franck in his work gave
more importance to legitimacy over justice.
The drawback in this theory is that he does not give value institutional interaction that led to
interpretation of norms and the mode by which international norms are internalized into
domestic legal systems.

5
Harold HongJu Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997).
6
ABRAM CHAYES & ANTONIA HANDLER CHAYES. THE New SOVEREIGNTY COMPLIANCE With
INTERNATIONAL REGULATORY AGREEMENTs 3 (1995).
7
Supra note 5, at 3
 4

In both theories that have been mentioned above, Harold Koh thinks that there is a lack of
norm internalization and how a transnational legal process is required to overcome it. There
will be compliance only when the International Law is internalized within the normative
structure of the state. The transnational process has three phases which are interaction,
interpretation, and internalization. This transaction will help in generating a legal rule which
will guide future transnational interactions and will further internalize these norms.

If there are violators in the society, they should be threatened with coercion which shows the
power. It also will bring long term self interest in the nations which will make them much
more interested in following the international law. As the rules are fair and they should obey
because they are law abiding individuals. It instils the idea that we are a community which
makes them obey it and will not enable them to think just about themselves. Finally, the legal
process reasons which we should try to enmesh the violators in processes, institutions, and
regimes that internalize the norms into their own internal value sets. "Most compliance comes
from obedience. Most obedience comes from norm-internalization. Most norm-internalization
comes from process." 8
Coercion is not the only reason for the obedience of international law, it is because of
internalized a religious faith, a normative set of values which makes them to obey voluntarily
which is called norm-internalisation.
The main reason for obedience is the transnational process which consists of 3 processes
which are three interactions that promote interpretations of law that lead to internalization of
international norms into domestic law. International law cannot be self-executed, it needs the
help of lawyers, policymakers, and scholars which helps in promoting norm-internalization. 9
Transnational law represents a hybrid of domestic and international law that has assumed
increasing significance in our lives. In his 1956 Storrs Lectures, Judge Philip Jessup famously
defined "transnational law" as "all law which regulates actions or events that transcend
national frontiers including both public and private international law plus other rules which
do not wholly fit into such standard categories."' 10Transnational law is that law which is
"downloaded" from international to domestic law.11

PART -B
8
Proceedings of the Ninety-Seventh Annual Meeting of the American Society of International Law
American Society of International Law Proceedings, Vol. 97, pp. 111

9
Ibid
10
PHILIP C. JESSUP, TRANSNATIONAL LAW 2 (1956)
11
Harold Hongju Koh, Why Transnational Law Matters, 24 PENN St. INT'l L. REV. 745 (2006).
 5

Question4
“Globalization is already having and will continue to have, a major impact on the
landscape of specialized legal fields. But this is happening in varied ways.” Discuss the
trend on the differential significance of globalization for specialized fields of expertise
noted by William Twining.

Globalization as the growing economic interdependence of countries worldwide through

increasing volume and variety of cross-border transactions in goods and services, free
international capital flows, and more rapid and widespread diffusion of technology.12
The term 'globalisation' to refer "to those processes which tend to create and consolidate a
unified world economy, a single ecological system, and a complex network of
communications that covers the whole globe, even if it does not penetrate to every part of it. 13
William Twining was Quain Professor of Jurisprudence from 1983 until 1996; after a period
as Research Professor, he became Emeritus in 2004. He has held chairs in Belfast and
Warwick and numerous visiting appointments. At the start of his career William taught for
seven years in Sudan and Tanzania. He has maintained an interest in Eastern Africa, and more
broadly the Commonwealth, ever since. He has studied and taught in several leading UK and
American law schools. A prominent member of the Law in Context movement, he has
contributed especially to jurisprudence, evidence and proof, legal method, legal education,
intellectual history, and legal archives.14

There are still arguments based on whether globalization is a myth or a real phenomenon. The
main point that must be notes is that there is an increase in international trade, international
flow of capital including foreign direct investment, role of international organizations such as
WTO, WIPO, IMF that deal with international transactions and the greater role of
multinational corporations.
Globalization can be of three types which are Globalization as reality, Globalization as theory
and Globalization as ideology.
As the legal world is changing drastically the traditional way of globalization must change as
well. According to Twining, the law is not subjected to a single State or a society but has been
geographically characterised into Global, International, Regional, Transnational,
Intercommunal, Territorial State, Sub-State, and Non-State. 15 Due to this differentiation
12
Indian Monetary Fund
13
William Twining, GLOBALISATION & LEGAL THEORY 4 (2000).
14
https://www.ucl.ac.uk/laws/people/prof-william-twining
15
https://www.legalserviceindia.com/legal/article-10790-globalisation-for-specialized-legal-fields-by-william-
twinning.html
 6

lawyers started focusing on the specialisation in the legal field. Laws helps in promoting
globalization.

William Twinning identified the differential significance of globalization for specialized

fields of expertise. They are as follows:

1. Transnational field
There are established transnational fields such as public international law, regional
law, environmental law, international trade, and finance which are considered as the
traditional fields. Now, there are new transnational fields that are emerging in the
world such as Internet law, procurement, international taxation, and transitional
justice. This itself shows how much role law plays in the department of globalization.
The internet law plays a vital role in today’s world as it is used by most of the people,
and it helps in protecting the data from leaking out. Similarly, international taxation
laws and international laws plays a very important in the world as regulating
international business dealing with trade and investment and international financial
transactions.16

2. Increased recognition of legal dimensions

The cross-border activities by non-state actors, coupled with the relocation of certain
regulatory functions outside the traditional domain of the territorial nation-state
toward regional and multilateral organisations, have cast doubt on exclusively
territorial theories of legal order and sovereignty. 17 Therefore it helps in the issues of
poverty and climate changes, mitigation, war etc.

3. Domestic subjects that are transnational

With the help of globalization, the domestic subjects became international. It includes
contract, criminal law, family law, intellectual property, and labour law. Contract law
with the help of globalization helps in doing business. Intellectual property law
secures the right of people on their works. In family law, issues relating to the
interests and rights of children in respect of labour, custody, adoption and abduction
across national borders, and the sex trade.18

4. Religious and Customary Practices

Globalization has helped people in migration and also helped in understanding and
exchanging each nation’s culture as well as ethics.

16
John Braithwaite & Peter Drahos, 'Global Business Regulation' (2000) Cambridge Univ. Press.

17
Peter Thomas Muchlinski, 'The International Lawyer' (2003) 37 JSTOR 221.

18
E.g the cover of Ann L. Estin and Barbara Stark (2007) Global Issues in Family Law (St Paul:
Thomson/West).
 7

5. Academic legal cultures

Today a legal scholar or a law student cannot just focus on solely on the domestic
law of a single jurisdiction. Due to the globalization transnational and cross-level
comparison is already embedded in our local academic legal cultures.

With the help of the above-mentioned reasons, it proves how globalization has helped
in improving the legal field all over the world. Legal practice is multi-cultured. Legal
scholar should be aware of laws in different nations and should be up to date with the
changes as well. Hence, in future too globalisation shall continue to impact the legal
field for peace and prosperity.
 8

BIBLIOGRAPHY

1. Cambridge Dictionary
2. The Statute of the International Court of Justice
3. https://law.yale.edu/harold-hongju-koh
4. https://1997-2001.state.gov/about_state/biography/koh.html
5. Harold HongJu Koh, Why Do Nations Obey International Law? 106 YALE L.J.
2599 (1997).
6. ABRAM CHAYES & ANTONIA HANDLER CHAYES. THE NEW
SOVEREIGNTY COMPLIANCE WITH INTERNATIONAL REGULATORY
AGREEMENTs 3 (1995).
7. Proceedings of the Ninety-Seventh Annual Meeting of the American Society of
International Law American Society of International Law Proceedings, Vol. 97,
pp. 111
8. PHILIP C. JESSUP, TRANSNATIONAL LAW 2 (1956)
9. Harold Hongju Koh, Why Transnational Law Matters, 24 PENN St. INT'l L. REV.
745 (2006).
10. Indian Monetary Fund
11. William Twining, GLOBALISATION & LEGAL THEORY 4 (2000).
12. https://www.ucl.ac.uk/laws/people/prof-william-twining
13. https://www.legalserviceindia.com/legal/article-10790-globalisation-for-
specialized-legal-fields-by-william-twinning.html
14. John Braithwaite & Peter Drahos, 'Global Business Regulation' (2000) Cambridge
Univ. Press.
15. Peter Thomas Muchlinski, 'The International Lawyer' (2003) 37 JSTOR 221.
16. E.g the cover of Ann L. Estin and Barbara Stark (2007) Global Issues in Family
Law (St Paul: Thomson/West).