World Order / Tatanan Masyarakat Internasional

1. World Order /TatananMasyarakatInternasional Emmy Yuhassarie

2. MasyarakatInternasional di Abad 21 • AdanyasuatumasyarakatInternasionalsecarasosiologis: - Suatumasyarakatinternasional yang terdiridarinegara, OI dan lembaga kuasi negara, MNC; - Adanyaketerikatanmelaluihukumalami ( natural law) dan kebiasaan internasional • Adanya berbagai produk hukum seperti perjanjian internasional dan traktat traktat ; • Adanya prinsip Kedaulatannegara ( sovereignty = yang teratas); • Perkembangan teknologi yang membuka pintu Transisimasyarakatinternasional

3. The Westphalian treaties of 1648 were a turning point in establishing the principle of state sovereignty as a cornerstone of the international order. • This concept of sovereignty is embedded in UN Charter itself. At the same time, however, according to article 2(7): “ nothing in the present Charter shall authorize the united nations to intervene in matters which are essentially within the domestic jurisdiction of any state. “

4. Kebutuhan redefinisi konsep sovereignty di abad 21 • Dalam perjalanannya sejak Westphalia 5 abad lalu, sebuah negara tidak dapat menjalankan pemerintahan yang efektif tana negara lain. Misalnya dalam rangka memerangi terorisme, money laundering; krisis keuangan, karena telah keterhubungan dalam era globalisasi. Sehingga kerjasama antar negara justru menjadi kebutuhan yang tidak dapat dihindari oleh setiap pemerintahan. • In short, states can no longer govern effectively by being left alone and by leaving other states alone. “ States can only govern effectively by actively cooperating wiith other states and by collectively reserving the power to intervene in other state’s affairs.

5. ADANYA sebuah MASYARAKAT TERTENTU:masyarakat global atau masyarakat internasional • Secara sosiologis, adanya masyarakat karena adanya subjek; adanya tatanan dan tertib, ada hukum dan sanksi, adanya sistem normatif, politis, maupun ekonomis dalam sistem kemasyarakatan, yang disebut dengan masyarakat internasional. • Pemikir yang menjadi salah satu landmark perkembangan HI adalah Hugo Grotius, whose treatise De Jure Belli Ac Pacis Libri Tres is considered the starting point for modern international law. • Before Hugo Grotius, most European thinkers treated law as something independent of mankind, with its own existence. Unlike the earlier thinkers, who believed that the natural law was imposed by a deity, Grotius believed that the natural law came from an essential universal reason, common to all men.

6. Foundation principles included the axioms that promises must be kept, and that harming another requires restitution. These two principles have served as the basis for much of subsequent international law. • Apart from natural-law principles, Grotius also dealt with international custom, or voluntary law. Grotius emphasized the importance of actual practices, customs and treaties—what "is" done—as opposed to normative rules of what "ought to be" done. This positivist approach to international law strengthened over time. • As nations became the predominant form of state in Europe, and their man-made laws became more important than religious doctrines and philosophies, the law of what "is" similarly became more important than the law of what "ought to be.“ • Selain Grotius nama nama berikut ini: Francisco de Vitoria,Francisco Suárez.Zouche, Bynkershoek, and Emerich de Vattel menyumbang banyak pemikiran dalam arus perkembangan HI

7. Klaimempiris, prediktifdandeskriptif 1. The State is not the only actor in the international system, but it is still the most important actor Transisidari “exclusive”menjadi “primary”, Padasaat yang samaterjadidisagregasinegara _ Padasaat yang samaterjadiconvergence dari legal order yang disebabkanolehfenomenglobalization ( Globalization will pressure legal orders to converge on the level of economic efficiency.)Khususnyauntukwilayah “bebasnilai”.

8. GLOBAL PARADOX • In a world of global markets, global travel, and global information network , of weapon of mass destruction , and looming environment disaster of global magnitude, government must have global reach. • Timbulsemacam “global paradoks”, di satusisimerasaperluadanyasatupemerintahan yang kuatmumpuniutkmengatasi problem bersama; di sisi lain takutakanlahirnyapemusatankekuasaan ; • Ada kebutuhanmembentuk universal law, namuntidakmau sovereignty terkikis

9. 2. The State is not disappearing, but it is disaggregating 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”. e.g. : G-20, BIS, IOSCO, FATF, Nafta, APEC, IAIS, regional org EU, IBA dll, WHO,

10. 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 Office, but also through regulatory, judiciary, and legislative channels.

11. 3. Those institutions still represent distinct national or state interests, even as they also recognize common 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. Disaggregasi dan reaggregasi terus menerus dilakukan oleh negara,

12. 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 beyond national borders in various ways, finding that their once “domestic” jobs have a growing international dimension.

13. 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 defined as law applicable to states in their mutual relations and to individuals in their relations with states.

14. 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 binding upon an individual. Philip C. Jessup The Subject of Modern law of Nations - Michigan Law Review Feb 1947

15. 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. • Accordingly, international legitimacy and sovereignty are a function of whether the government politically controls the population rather than whether it justly represent its people. *Fernando Teson, A Philosophy of Int. law

16. 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. • In this way, the notion of sovereignty is redefined; the sovereignty of the state is dependent upon the state’s domestic legitimacy; therefore the principles of international justice must be congruent with the principles of internal justice.

17. Eventually, we will be leading toward a discussion on the interaction, the position and the structure of national legal system vis a vis international legal system: • The divide between international law and national law has started since 17th century, leading toward theoretical debates. So critical that the Hague Academy hold several courses devoted to this topic.

18. The heart of debates between Monism versus Dualism • That a state cannot invoke national law to justify non compliance with international law; But • International law could not be enforced without internal willingness of a state to comply

19. State as metaphysical being • Hegel: The state in and by itself is the ethical whole, the actualization of freedom ; and it is an absolute end of reason that freedom should be actual. In mythical terms: “the march of God in the world”. • International law was conceived of merely as external law of the State.

20. 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. 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 subdivision of Government, regional authorities, the colonies and other political subdivisions may achieved the legal status by State ‘s constitution or of laws, which later on highlight its AoA. Eg.

21. Under this view, international law concerns the external life of the state, but it is not above the State since it has its source in the State (will). • Internal and external public law, international law and municipal law are completely separate orders.

22. The State’s sovereignty and power are not limited by international law, on the contrary international law is used as an instrument to exercise them. • Hegelian thought marked international law theory significantly because of its glorification of the State and it sovereignty. ( Anzilotti, Triepel, Kelsen)

23. Triepel accepts dualism as the only possible perspective: “two spheres that at best adjoin one another but never intersect”. • But entering 20th century Hegel influence alongside with German diminishing in power especially in Europe identified by the forceful response and total rejection to dualism.

24. 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 imperial global state Eight Annual Grotius Lecture ASIL Proceeding 2006

25. Eradicating global poverty by 2025………MDGs • 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: metaphor of the ‘two India”. The first – rich, mobile, and technology savvy—support the ongoing liberalization and globalization process, while the second – poor, marginalized, and deprived of even basic health and education services – is integral part of the growing global poor.

26. Human Development Report 2005 • Overall the evidence suggests that the pick-up in growth has not translated into a commensurate decline in poverty.

27. The Global Green New Deal and the Green Economy • The overall objectives of a GGND are to: • Revive the world economy, save and create jobs, and protect vulnerable groups; • Reduce carbon dependency and ecosystem degradation ( CDM) , and • Further the MDGs, including ending extreme poverty by 2025 The world needs a GGND because : • the market has proven incompetent to resurrect itself without government interventions; • The green sectors as renewable energy technologies have the prospect of leading the global economy recovery; • The multiple crises are at the global level, affecting developing countries disproportionately and thus requiring fair and just global solutions

28. 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. • Questioning the legitimacy of international law by its lack of enforcing power, Austin’s positivism theory seemed impeded the international existence.

29. Resources • MarttiKoskienniemi; The Structure if International Legal Argument : From Apology to Utopia; New York –Cambridge Univ. Press – 2007; • JanneNijman 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 • Eighth Annual Grotius Lecture, ASIL Proceeding 2006

30. In Conclusion • The basis of compliance is 3 R: reputation, reciprocity, and retaliation