Evolving Nature of the State in the Global System

1. World Order /TatananMasyarakat Internasional Emmy Yuhassarie emmy_ruru@yahoo.com

2. 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”, Pada saat yang sama terjadi disagregasi negara

3. 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.

4. 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. C: G-20, BIS, IOSCO, FATF, Nafta, APEC, IAIS, regional org EU, IBA dll

5. 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. …The relate to each other not only through the Foreign Office, but also through regulatory, judiciary, and legislative channels.

6. 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,

7. 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.

8. 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.

9. The heart of debates betweenMonism 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

10. 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.

11. 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.

12. 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)

13. 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.

14. 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.

15. 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