Issues of Converging Law into Legislative Systems

2801 words (11 pages) Essay in International Law

30/07/19 International Law Reference this

Last modified: 30/07/19 Author: Law student

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The emerging of legal transplant and its transformation could be an example of global legal integration and the hybridization of the universal law in many parts of the world. The debate on a result of the internationalization of Human Rights Law has been very controversial in my LL.M. Programme (LLM in International Human Rights Law and Practice). Therefore, this essay will explore legal concepts such as (Legal transplant and convergence) learned from this module, seeking to understand in relation to the ‘Internationalization of law’ under different legal systems if they have been applied and respected or not. To narrow down, this paper will discuss how a particular type of ‘legal transplant’ and ‘convergence’ of law does not integrate in every legislative system (particularly ASEAN[1] countries) despite the emerging of the convergence of legal systems.

Alan Watson positively pointed out the charm of legal transplants and change in legal system for him is interdependent from other factors (historical, social and cultural spectrum) and ‘the transplanting of legal rules is socially easy’.[2] However, Legrand critically argued the impossibility of such process, ‘as the understanding of a rule changes, the rule it self changes’.[3]  The Oxford English Dictionary simply translates ‘transplant’ as ‘remove and reposition’ which means, once a particular legal layout has travelled and enacted to a new body, it carries new meaning along the way and transform the meaning during transportation process to either ‘Monism’ or ‘Dualism’[4] legal systems. Although some legal systems may aware of new body been enacted, it could face a ‘deadlock’ as such jurisdiction are tied to many entities.

The convergence of law as a result of such internationalization argued by Tushnet that ‘national constitutional practice is inevitably converging under pressures of globalization’.[5] Siems referred this term as ‘Convergence through congruence’ and ‘convergence through pressure’[6]. One could argue that many ‘law convergence’ evolved from pressure where influences are driving forces and, differences of legal systems become more communicable thus form convergence of legal systems. For instance, to many scholars, Human Rights Law treaty bodies and its mechanisms were enforced through three categories: coercion, persuasion and acculturation[7] to respond to the Universal Declaration of Human Rights (UDHR) established in 1948 after the wake of the World War II.

As a result of the Internationalization of law requirements, this has been influential to national policy makers and although the UDHR is not legally binding, two of the most obvious treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) legally binding states that ratifies them[8]. International Human Rights Law is a part of public international law, which is traditionally governed by and for sovereign states[9]. The ratification of Human Rights Law as a result, enshrined to domestic constitutional systems and obliged states (democratic, authoritarian, totalitarian, socialist etc.)[10] to ‘protect, respect and fulfill’[11] requirements under the internationalization  of law.  

The ideal of the binding states under those treaties is to converge Human Rights law as part of reciprocal relationship between constitutions[12] and the Internationalization of Human Rights treaties. ‘Cultural relativist’[13] on the other side critiqued that, as this concept derived from ‘Western origins’, it is not considered as ‘universal’ and should not be enacted on other cultures. One dimension to interpret this is to look through the lens of dual legal systems that implied to each constitution systems in Southeast Asia (SEA) countries. For example, Thailand has dualism legal system[14] and treaties has to be passed by the parliamentary and the signature of the King is required and ‘the king has the prerogative to conclude a peace treaty, armistice and other treaties with other countries or international organizations’[15]. Which means, although treaties have been ratified, they’re not automatically binding because it has to be transformed to national law (then to domestic law and domestic courts).

Thailand is a signatory of the Rome Statute and a party eight of nine International Human Rights treaties[16] including ICCPR Article 19.[17] However, Article 112[18] in national constitution is still use as ‘a tool to curtail freedom of expression, public opinion and Internet freedoms’.[19] As a party of the treaty, one could interpret as a violation[20] towards its mechanisms but this is still highly revered in Thai society. Often, it is more acceptable to avoid offending people by remaining silent as it is seen as ‘culture norm’ or else, it is ‘Western influence’. Similarly, Vietnam’s Socialist ‘Rule of Law’[21] enacted on the third key principles stated, ‘respect of human rights, as well as community values’. [22] Internationalization of law do not implied automatically to legal systems that tied to customary law because they regulate as two separate subjects (Brunei Darussalam Constitution Article 84(2))[23]. Transplanting foreign body/treaties will not implement by itself in local level. It requires different levels of incorporations in domestic law by adjusting constitutions. Adopting core norms into domestic constitutions through international ratification, domestic constitutional commitment and actual enforcement of rights increase the probability of enforcement at both level[24]. Personally, law is not ‘autonomous phenomenon’[25] as pointed out by Watson[26] and it should not be parted from social, cultural and political historical circles.

Ostensibly, one should not forget that, adaptation must be compliance with international rules in individual domestic legal system as marginal costs and influences are somewhat harmful if they’re lack of enforcement or ‘unsuitable’ in that territory. First, trespassing journey of legal systems is complicated as it has to travel pass several lenses: cultural, social, economic and political affiliation of the legal origin which could have ‘polluting or disrupting effects’[27]. Even in the field of internationalizing human rights law, it is hard to embed such legal system especially when states contains their roots deeply. Second, the interpretation of the ‘supremacy of law’ in SEA remains predominantly fragile and ‘Asian values’[28] based on ‘group-centered social structures’ is ‘irreconcilable’ with human rights issues while government officials are above the rule of law[29] and ‘Freedom of Expression’[30] in public spaces[31] still highly restricted. Third, a non-legal hypothesis could be the politicization of the process it self. States could feel powerless and lose respect/reputation in the international floor as the internationalization of law does not only consist of Human Rights Law but also various areas such as corporate law, trade and commercial law etc.. which could be lead to wide scale effects of individual state’s economy/political interests. Could this be a result of convergence of law through pressure? Without doubt, there is more than ‘parallel answers’ available regarding to this.  

Bozeman stated that, ‘Once the West begins to understand and accept the merits of these other cultures, international discourse can help to alleviate some of the existing tensions and lead to new types of meaningful consensus in today’s multicultural world’ [32]. Personally, it is not only the role of the ‘West’ to begin understanding these tension dimensions, but for both sides to seek common ground and learn to observe the gap that occurs when legal transplant of any bill of law crosses boundaries. It is also essential for main treaty bodies to seek alternative mechanisms and testify how culture, historical and social dimension reconstruct the meaning of the origin of the law in a new body.

At last, arguments mentioned above should not lead to any conclusions as the debate remains extremely controversial until today. Without doubt, because of such convergence and the Internationalization of Human Rights Law, legal actors came to shared solutions and bind together to address common problems and interests. Each legal system has their own culture involving the emergence of sources of law, the codification process and raking of legal systemization in each country[33]. Therefore, it is my intention to expand further understanding and digging deeper interpretation on convergence and future of the internationalization of law during my remaining time as LL.M. student here at the University of York. It is interesting to see how scholars and main treaty bodies will respond to such bitter reality and ensuring human rights are equally respected to states that maintain layers in their legal systems. Could this be done through the mobilization of Human Right Law and mechanisms where each significant state has authentic expression of their own ideas regarding to human rights? No one knows! Socio-historical lens and roles of spatial that interpreted through these abstract ideas could be explicit but, by understanding constructed factors is essential as it will help parties to appreciate the social evolution and internationalization of new norms and seek towards collaborate solutions towards the Internationalization of Human Rights Law.

Bibliography

Books

  • Adda Bruemmer Bozeman, ‘ The Future of Law in a multicultural world’ (Princeton 1971)
  • Alan Watson, ‘Legal Transplant: An Approach to Comparative Law’ (2nd edn, University of Georgia Press 1933) in David Cabrelli and Mathias Siems, ‘Comparative Company Law: a case-based approach’ (Oxford: Hart 2013)
  • Ian Brownlie, Principle of Public International Law (7th edn, Oxford 2008) 31-32
  • James Crawford, ‘Brownlie’s Principles of Public International Law’, (8th edn.,Oxford University Press 2014)
  • Legrand Pierre, ‘What “Legal Transplants?”’ (2001), in Mathias siems, ‘Comparative Law) Cambridge University Press 2014) 191-220
  • Siems, M, ‘Comparative Law’ (Cambridge University Press 2014)

Legal Journals and Articles

  • John W. Cairns, ‘Watson, Walton, and the History of Legal Transplants’ (2014) 41 Georgia Journal of International and Comparative Law 637
  • Mark Tushnet, ‘The Inevitable Globalization of Constitutional Law’, (2009) 49 Virginia Journal of Internatinoal Law 985
  • Pierre Legrand, ‘The Impossibility of ‘Legal Transplant’’ (1997) 4 Maastricht journal of European and Comparative Law 111
  • Ryan Goodman & Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ in Zachary Elkins, Tom Ginsburg & Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 61
  • Siems, M, ‘Legal Origins: Reconciling Law and Finance and Comparative Law’ (2007) 52 McGill Law Journal 55
  • Vitit Mantarbhorn, ‘The Core Human Rights Treaties and Thailand’, (2017) 117 Brill 1-19
  • Zachary Elkins, Tom Ginsburg & Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitution Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 84-88

Websites

  • ASEAN Human rights, ‘Thailand’, <https://humanrightsinasean.info/thailand/rule-law-human-rights.html > accessed 30 October 2018
  • The Association of Southeast Asian Nations (ASEAN), ‘ASEAN Overview: Aims and Purposes’ <https://asean.org/asean/about-asean/overview/ >  accessed date 1 November 2018
  • United Nations, ‘Universal Declaration of Human Rights’, <http://www.un.org/en/universal-declaration-human-rights/ >  accessed 30 October 2018
  • United Nations Human Rights Office of the High Commissioner (OHCHR), ‘International Human Rights Law’, 
  • <https://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx > accessed 27 October 2018
  • United Nations Human Rights Office of the High Commissioner (OHCHR), ‘Press Briefing on Thailand’, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21734&LangID=E > accessed 30 October 2018

[1] The Association of Southeast Asian Nations (ASEAN) consists of ten member states: Indonesia, Malaysia, Philippines, Singapore, Thailand, Lao PDR, Cambodia, Brunei Darussalam, Singapore, Vietnam, Myanmar

[2] Alan Watson, ‘Legal Transplant: An Approach to Comparative Law’ (2nd edn, University of Georgia Press 1933) in David Cabrelli and Mathias Siems, ‘Comparative Company Law: a case-based approach’ (Oxford: Hart 2013) 1-23

[3] Legrand Pierre, ‘What “Legal Transplants?”’ (2001), in Mathias siems, ‘Comparative Law’ (Cambridge University Press 2014) 196

[4] Ian Brownlie, Principle of Public International Law (7th edn, Oxford 2008) 31-32

[5] Mark Tushnet, ‘The Inevitable Globalization of Constitutional Law’, (2009) 49 Virginia Journal of Internatinoal Law 985

[6] Mathias Siems, Comparative Law (Cambridge University Press 2014) 230

[7] Ryan Goodman & Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ in Zachary Elkins, Tom Ginsburg & Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 61

[8] United Nations, ‘What is the Universal Declaration of Human Rights’

[9] James Crawford,‘Brownlie’s Principles of Public International Law’,(8th edn.,Oxford University Press 2014) 4

[10] Tushnet (n 3) 61-62

[11] United Nations Human Rights Office of the High Commissioner, ‘International Human Rights Law’ 

[12] ibid; The International Human Rights Law stated ‘through ratification of international human rights treaties, governments undertake to put into place domestic measures and legislation compatible…. ensure that international human rights standards are indeed respected, implemented and enforced at the local level’

[13] Siems (n 5) 216

[14] Vitit Mantarbhorn, ‘The Core Human Rights Treaties and Thailand’, (2017) 117 Brill 1-19

[15] ibid 5-6

[16] ASEAN Human Rights, ‘Thailand’

[17] International Covenant on Civil and Political Rights (ICCPR) Article 19 provides: ‘Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers’.

[18] Thailand 2017 Constitution Article 112 provides, ‘Whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years’.

[19] See BBC reports on ‘Lese-majeste explained: How Thailand forbids insult of its royalty’ 2017

[20] OHCHR Press briefing notes on Thailand 2017

[21] Human Rights Resource Centre, ‘Update on the Rule of Law for Human Rights in ASEAN: The Path to Integration’ 19

[22] ibid, 20

[23] ibid, 22; Article 84(2) of the constitution provides ‘…nothing in this Constitution shall be deemed to derogate from the prerogative powers and jurisdiction of […the Sultan who…] retains the power to make laws and to proclaim a further Part or Parts of the law of this Constitution as […the Sultan…] may seem expedient’.

[24] Zachary Elkins, Tom Ginsburg & Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitution Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 84-88

[25] ibid (n 2) 95

[26] ibid (n 2)

[27] John W. Cairns, ‘Watson, Walton, and the History of Legal Transplants’ (2014) 41 Georgia Journal of International and Comparative Law  637

[28] Siems (n 5) 216

[29] ibid (n 19) 21

[30] International Covenant on Civil and Political Rights (ICCPR) Article 19 provides: ‘Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers’.

[31] See Reporters Without Borders Report 2018

[32] Adda Bruemmer Bozeman, ‘ The Future of Law in a multicultural world’ (Princeton 1971) 161- 186

[33] Mathias Siems, ‘Legal Origins: Reconciling Law & Finance and Comparative Law’  (2007) 52 McGill Law Journal 67

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