HIN – Subject of Int Law

  The Subjects in A World Order Emmy Yuhassarie emmy_ruru@yahoo.com

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”.
• The International Law of Treaties prescribes that only states could enter into a treaty relation, this is

  the fictitious juridical person known as the state

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.

• 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.

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

• 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.

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.

  5. The subdivision of Government, regional authorities, the colonies and other political subdivisions may achieved the legal status by State ‘s constitution or

  “ 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. “

  All such entities are here recognized as subjects of international law.

• 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,

• 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.

Those institutions still represent distinct national 3

  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, 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.

The Doctrine which may govern the Non State Actors

  1.Doctrine of Equality;

  2.Doctrine of independency, or interdependency;

  3.Doctrine of sovereignty

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.

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.

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

  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: 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.

  

Human Development Report 2005

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

• 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.

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

• • Eighth Annual Grotius Lecture, ASIL Proceeding 2006

  How International Law gets sovereign states to alter their behavior

  

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 practitioner habit of obedience;
• – The flexible nature

The Weakness

• Lack of Institution • Lack of positive regulations
• Lack of certainty • Vital rules and interests.

  

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

  follow ICJ ruling.

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.

• • The Texas Court of Criminal Appeals concluded, for example,

  that “ the president has exceeded his constitutional authority

  by intruding into the independent powers of the judiciary”.

• 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

  Protocol, depriving ICJ of jurisdiction over future disputes.

• How does International law works?

• • 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 .
• NAFTA could enforce domestic regulations to change

• 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 100 states.

  In Conclusion

• The basis of compliance is 3 R: reputation, reciprocity, and retaliation