The Subjects in A World Order
Emmy Yuhassarie
Subject in a Modern Law of Nations
• International law is generally defined or described
as law applicable to relations between states.
• States are said to be the subjects of international
law and individuals only its” objects”.
International Legal Position of the Individual
• The function of international law is to provide a legal basis for the orderly management of international relations.
• The traditional nature of that law was keyed to the
actualities of past centuries in which international relations were inter-state relations. The actualities have changed…. • Therefore: international law or the law of nations must be
• International law may also, be applicable to a certain interrelationship of individuals themselves, where
such interrelationship involve matters of international concern.
• So long, however, as the international community is composed of states, it is only through an exercise of their will, as expressed through treaty or agreement, or as laid down by an international authority deriving its power from states, that a rule of law becomes
Klaim empiris, prediktif dan deskriptif
1, The State is not the only actor in the
international system, but it is still the most important actor
Transisi dari “exclusive” menjadi “primary”,
• In a world of global markets, global
travel, and global information network , of weapon of mass destruction , and
The Impetus for Other than States’ Actors in International Forum
1. Practices of States, which delegate the exercise of some of their customary attributes.
2. There is a growing tendency that State discharges some its functions which are considered to be the function of private interests. In socialist States it is to the advantages of the State to separate its political function from its business functions for prestige considerations, and preserving clash of interests.
3. It is in the interests of the State to disentangles the functions so as directly controlled and handled in international level than in domestic level.
4. The case of la Palma Islands, and VOC, indicates that for some reason the other states body or organizations directly subjugates its authorities to
international order.
“ The attempts which have been made to decide in the abstract whether entities which are not States are
subjects or objects of international law do not lead beyond mutually contradictory assertions. The only premise which it is safe to state, is that the existing subjects of
international law are free to extend the application of
international law to any entity whom they see fit to admit to the realm of the international legal system. “
•
The State is not disappearing, but it isdisaggregating into its component institutions, which are increasingly interacting principally with their foreign counterparts across borders. • Sub government officials, NGO, Civil Society
organization partake in this global interstate
interaction and increasingly play dominant role in advancing “global state”
• World of governments , with all the different institutions that perform the basic functions of government – legislation, adjudication,
implementation & interacting both with each other domestically and also with their foreign and supranational counterparts. …They relate to each other not only through the Foreign
3.
Those institutions still represent distinct national or state interests, even as they also recognizecommon professional identities an substantive experience as judges, regulators, ministers, and legislators.
4. In many circumstances, states will still interact with one another as unitary actors in more
tradistional ways.
5. Government networks exist alongside and
sometimes within more traditional international organization.
Conclusion:
The state is not disappearing, it is disaggregating. Its component institution are all reaching out
The Doctrine which may govern the Non
State Actors
1.Doctrine of Equality;
2.Doctrine of independency, or
interdependency;
Traditional International Legal Theory*
• Traditional international legal theory focuses upon the rights and duties of states and rejects the
contention that the rights of states are merely derivative of the rights and interests of the individuals that reside within them.
Modern International Legal Theory
• This theory bases on the premise that the primary normative unit is
individual , not the state: thus it can hardly be reconciled with the statist approach.
• The end of states and governments is to benefit, serve, and protect its components, human beings; the end of international law must also be to benefit, serve and protect human beings, not states and government. Respect for states is merely derivative of respect for persons.
The Third World Approach to International Law*
• TWAIL refer to Grotius which said that sovereignty beyond Europe, unlike sovereignty within Europe, was” very much a divisible notion” and it was to remain so in all subsequent conceptions of relationship with the non Western world.
• The emergence of a unified global economic on one hand and the rapid evolution of international human rights law and consciousness, on the other, create two spaces of competing arena, sometime conflicting, but should have been complementing each other. But fact shows that the two seems conflicting each other. ( e.g. .intellectual property protection)
• The current conflict between int. economic law and int. human rights law has dictated the need to establish adequate institutional structures to defend the interests of global capital. These structures constitute the emerging
The Impact on global poor ………
• A unified global economic space was growing through a network of international laws, but there was no global state to ensure that these laws were observed. There was an urgent need to create or strengthen institutions that could enforce norms that facilitate the globalization of trade, production and finance.
• The task was assigned to key int. economic institutions, like the WTO, World bank, the IMF and number of regional and bilateral mechanisms that together form the principal building blocks of an emerging global state.
• Global processes are extending and deepening the social reach of the emerging global state. For instance, there is now a global network of legislators, judges, bank officials, and police officials trying to collectively address common global problems. • On the other hand… some social excess happened as its consequence. Example:
Human Development Report 2005
• Overall the evidence suggests
that the pick-up in growth has
not translated into a
• Scholars like Brierly, Kelsen aims at strengthening the position of the individual , and democracy, and subjecting power to the universal rule of law by
arguing the existence of international law as a law limiting the state’s actions.
• Monism was first and foremost an attempt to restrict power of the State and to empower the individual and protect human dignity.
Resources
• Martti Koskienniemi; The Structure if International
Legal Argument : From Apology to Utopia; New York –Cambridge Univ. Press – 2007;
• Janne Nijman and Andre Nollkaemper; New
Perspectives on the Divide Between National and International Law; Oxford Univ Press - 2007
• Anne-Marie Slaughter, A New World Order; Princeton & Oxford – 2004
SOURCE OF AUTHORITY
The Strength basis
• The base of effectiveness of International law:
– It is not positive law;
– Interdependency and state’s self interest;
– The common goal, that is PEACE, STABILITY and ORDER
– A self perpetuating quality of International law as a system of law
The Weakness
• Lack of Institution
• Lack of positive regulations
• Lack of certainty
Medellin Case
• Jose Ernesto Medellin participated in the rape and murder. He was arrested by
the Texas police. Convicted murder &sentenced to death.
• Mexican Consular files a state habeas corpus petition. The claim that he had
been denied his rights under VCCR, an international treaty to which the US and Mexico are both parties.
• At the time of his arrest, Medellin was not informed of these rights
• While domestic legal proceeding moving fast, Mexico gov filed a case against US
at ICJ. Jurisdiction was based on Art 1 of the Optional Protocol of VCCR to which both States were parties.
• ICJ issued its decision in 2004, on Avena case, ruled that the US had violated its
obligation under the VCCR , and ordered the US to review their convictions and sentences, or a relief order.
• The US Supreme Court granted certiorari on the question of whether the US must
Case...
• In 2006 US SC delivered an opinion on other VCC case and ruled that ICJ decisions “are entitled only to . . . respectful consideration” and are not binding on US Courts;
• Rather than wait the President was ordering the states to
follow the instructions of the ICJ. By issuing this order, Pres Bush generated a conflict between his administration and the governments and court systems of several of the states and exposed himself to the accusation that he was doing violence to the federalist structure of the united states.
• USSC on the opinion that the president’s memorandum is binding to the states.
• Though looking to the international level for answers fail to reveal any obvious pressure on the US to follow the ICJ
ruling. The ICJ nas no ability to enforce its ruling on the US, and there were no credible threats of sanctions by any states. • After US gave effect to the Aveena decision – the US
announced its withdrawal from the VCCR’s Optional
• US also removed its safeguard measures on steel following a loss before the WTO’s appelate body.
• Mexico reformed its telecommunications regulations to comply to decision of WTO Panel.
• Namibia accepted the ICJ decision on longterm border dispute in favor of Botswana.
• British government bowed to ruling from the ECHR that gay individuals be permitted to serve in the armed forces. Even recommending to amend domestic regulation on
homosexuality .
• US passed the Foreign Relations Authorization Act which includes implementing legislation for the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This legislation amends title 18 of the USCode to establish criminal penalties for persons committing or attempting to commit torture outside of the US.
• The Chemical Weapons Convention Implementation Act requires that the US government seek the issuance of a search warrant in response to a
demand from the Organization for the Prohibition of Chemical Weapons to engage in a challenge inspection of a public or private facility.
• The Basel Accord on International Convergence of Capital Measurement and Capital Standards, a soft law instrument that sets standards governing the capital –asset ratios maintained by central banks, was initially signed by the G-10 and Luxemburg, but has subsequently been implemented by more than
