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Damos Dumoli Agusman MA[*]

 (dimuat pada Majalah Padjadjaran, Universitas Padjajaran 2004)

International law and relations are very dynamic studies. They have been and continue to be developing in accordance with, and are sometimes left behind by, the dynamic evolution of the international system, and to survive they must remain in harmony with the realities of the age. But never in the past, at least from the Westphalian era, have these studies faced a shaking change as extreme as that affected by the so-called globalization process. The tragedy of 11 September 2001 followed by the “US liberating Iraq” in 2003 has culminated the ongoing international systemic change, to some extent shocking the study of international law and relations. People are now asking where are these studies are now headed?

Many writers have already foreseen the effects of globalization that continue to affect the fundamental elements of international law and relations, inter alia, its traditional Westhphalian inter-states system. However the two recent events have reminded the world that the international systemic change has moved in an unpredictable direction and has fundamentally eroded, if not destroyed, the sacred concept of state sovereignty and its related issues that international law and relations have so far counted on.

What kind of world system is now challenging the study of international law and relations? Many have spoken about this. Most scholars hold a view, and a relatively incontestable one, that globalization presents a fundamental challenge to the Westphalian states-system and its central principle of state sovereignty. Although it has brought the demise of sovereignty, most also agree that it is by no means dissolving the state. Much has been said about the emergence of non-state actors that significantly affect the primary role of states in the international system. But the most shocking character of the present world system is that centres of power are scattered among many actors. It is no longer bipolar where a balance of power and containment policy could be sustained. Neither is it unilateral with one state superior to the rest of the world. What is now experienced on the world scene is a complex multi-polar situation in which non-state actors – legitimate or not – are also involved. Terrorists, despite their controversy, by definition of international actors are perhaps one of them.

On the other hand, the international system is still in anarchy, in the sense that it has no central government that guarantees the security of its members. Unfortunately, today’s post cold war world also witnesses the fact that the UN Security Council is becoming ineffective – perhaps its members intend to have it this way – in dealing with the new mode of threat to international peace and security. Together with these characteristics, the notion of a so-called cultural dichotomy between “the West and the World” as inspired by Huntington`s clash of civilizations is believed to have formed the present international system replacing the bipolar East-West model. So the system remains anarchic, with new hostile actors such as terrorism which threaten the people, and the ineffectiveness of the Security Council have already constituted a dilemmatic problem for international law and relations.
The world system has departed from its original set of Westphalian inter-states in the direction of a multipolar system now including terrorism. In this regard international relations have been characterized by a new phenomenon i.e. the emergence of an asymmetric international system in which the logic of threat is beyond rational thinking. As the US National Intelligent Council has put rightly in its assessment in global trends 2015, IT-driven globalization will significantly increase interaction among terrorists, narco traffickers, weapons proliferators, and organized criminals, who in a networked world will have greater access to information, to technology, to finance, to sophisticated deception-and-denial techniques and to each other. The Council is convinced that Asymmetric challenges can arise across the spectrum of conflict that will confront US forces in a theater of operations or on US soil. The logic of state affairs asymmetrically encounters the logic of terrorism. The former relies on military strength and the latter relies on individual lives. Military forces versus suicide. The New York terrorist attack using the irrational means of suicide has disturbed the logic of state power, in which the world cannot identify who the enemy really is nor how to counter attack the enemy in the sense of the inter-states system of international law and relations. In 2000 the US National Intelligent Council has already foreseen the future Conflict and threats facing the United States inter alia  that of asymmetric threats in which state and non state adversaries avoid direct engagements with the US military but devise strategies, tactics, and weapons—some improved by "sidewise" technology—to minimize US strengths and exploit perceived weaknesses.
Counter measures by recourse to the use of force is perhaps, in the prevailing view of the world, the only available one. But the counter attack by recourse to the use of force directed at Afghanistan in 2001 following the terrorist attack raised many fundamental problems on the basis of which traditional international law and relations have come under scrutiny. Who was really the enemy that they targeted? Is it Afghanistan as a state? The Taliban as a government? Or Osama bin Laden as a non-state actor who (coincidently?) resided in Afghanistan? In this case, the world is confused not only over the question of the legality of the use of force in response to such a terrorist attack but also how the target is defined in terms of the law of armed conflict. These novel legal issues are beyond the scope of the present inter-state system. The law of war such as the Geneva Convention of 1949 and the established laws governing the use of force could hardly deal properly with this kind of asymmetric and illogical conflict. Although the UN has attempted to provide quick counter measures to terrorist issues before the New York tragedy, such as by adopting the International Convention for the Suppression of Financing of Terrorism in 1999, the legal problem arising from the terrorist attack thereafter remains unsettled. President Bush acknowledged this dilemma his Address to the Nation on Iraq on 17 March 2003 by saying that   Terrorists and terror states do not reveal these threats with fair notice, in formal declarations -- and responding to such enemies only after they have struck first is not self-defence, it is suicide.

The approach pursued by the international community in dealing with terrorism through a global coalition also poses a problem. Fighting terrorism solely by recourse to the offensive use of forces, instead of winning the hearts and minds of radicals, temporarily seems to be effective. However it could also adversely bring another security dilemma to the world system. Offensive use of force against terrorism inadvertently provokes radicalism and consequently rising radicalism would further threaten the international community, and as a result the threatened community will again increase its offensive force, and so on. A spiral is created and the world grows increasingly insecure. The situation is intensely exacerbated by the wounded President Bush’s strong exclusive policy of  “either you are with us, or you are with the terrorists. Another unexpected acute dilemma is also coming into the fore in the terms of Huntington’s the “West and the World”. The terrorist threat makes the West insecure and they accordingly pursue measures that exclude the rest of the world. The rest will inadvertently react suspiciously. This interaction will create distrust in international relations and will give impetus to radicalism and terrorism. It must be said that asymmetric international relations in which hostile non-state actors join the system has outmoded the existing approaches.

The case of the “US liberating Iraq” has also demonstrated shortcomings in traditional notions of sovereignty. Furthermore, to some extent, the case has also frustrated many international lawyers and even made many people have more doubt about the existence of so called international law. Whether or not state sovereignty is still relevant in the present world system has been highly debated by many scholars. It is also worth noting that in the progressive development of international law, many scholars put state sovereignty in an awkward position. On one hand, state sovereignty is accused of preventing the embryonic rules of international law to take effect. The applicability of laws of human rights and protection of the environment for example is, as many scholars claim, countered with the so-called sovereignty. Cases of genocide, ethnic cleansing, civil war and failed states are among others in which sovereignty is claimed to be a barrier. On the other hand, state sovereignty is always the core issue with regard to the law of the use of force and the breach of it is usually a paramount parameter in determining the illegality of the use of force. In this regard, the world system is neither ready to leave it totally aside nor to keep it in its original meaning. It must be said that international law loves and at the same time hates the concept of sovereignty.

Traditionally sovereignty is an inherent concept of international law. Through the UN Charter in 1945, the concept has since become sacred. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the UN embodied in its resolution No. 2625 in 1970 is mainly about protecting the sovereignty concept, inter alia, non-prohibition of threat or use of force, non-intervention, equal rights and self determination, and sovereign equality. However the idea of diminishing the concept of state sovereignty in the law of the use of force has existed since the post cold war era. The concept is being reduced not by bluntly denying its existence but by improving it with a number of permissible concepts such as “broadened interpretation of self defence” and “humanitarian intervention”. Contentious debate on this issue has already taken place in international law and continues. It is about a dispute between minimizing versus broadening the resort to force.

However, the “US liberating Iraq” case has posed a serious problem to this sacred concept. Although the US justifies its action in Iraq on the basis of a newly introduced concept of pre-emptive use of force, the “outlaw regime” and the need for regime change in Iraq seems to be the only feasible argument for the US. Without the former concept, the newly embryonic concepts such as “changing an outlaw regime” or “installing democracy in ‘undemocratic’ foreign states” as justifying the use of force without a UN mandate in a particular state is a little bit too far from being relevant. International lawyers seem to be reluctant to start discussion about this and none of them has ever raised and explored this controversial concept. Nevertheless, the nature of the present confusing international system might give impetus to the discussion of this idea. In dealing with terrorism, it seems to be the interest of the US to have the world free from “outlaw and undemocratic regimes”. In this scenario, the fundamental principle of international law, especially states sovereignty will not only be reduced but even be destroyed. It is of course a problem that the study of international law and relations should deal with.

Traditionally, the question whether or not international law is really a law in view of its nature has already been an established rubric in the study of international law. However, states practice in the present system has made the discussion more complicated. It is of course a big challenge to the disciplines of international law to redefine, if necessary, its existence. The fact that states in practice nowadays ignore the principle of sovereignty does not necessary bring about the idea that international law ceases to exist. From the optimistic point of view, especially analysing the recent case of Iraq, no state that participated in the conflict claimed to ignore international law. On the contrary, they sought a legal basis to justify their actions no matter how good their argument. It is interesting to note that in seeking a legal basis for use of force against Iraq, while the US introduced a newly permissible legal concept, the UK attempted to construct more legal logic by arguing that the authority to use force under resolution 678 endorsed in response to the Iraqi invasion of Kuwait had been revived. In this regard, many scholars have expressed correctly that states violate international law in term of it.  It could also happen in the national legal system, but what is lacking here is that in international law there is no superior organ available (such as a court with a compulsory jurisdiction) that could determine whether or their legal arguments are accepted. It is to say that states are both actors as well as judges for themselves. Again it shows that international law has never ceased to exist although states frequently violate it.

Is states’ practice of recourse to the use of force without a UN mandate becoming a customary rule of international law in the present system? Gladly the discipline of international law has a good answer to this question. Although states frequently act contrary to the established rule of prohibition of the use of force (such as without the UN mandate), such a state practice does not automatically constitute a precedent that could amount to a customary rule. First, such a practice lacks the essential requirement of a custom, i.e. opino juris sive necessitates, a feeling of legal obligation. There must be a manifestation of assent to this practice. The facts show that the use of force without the UN mandate has not been supported by states simply because they are convinced such a practice is not binding upon them. The fact that at the beginning process the US initially asked for the UN Security Council to authorize the use of force against Iraq shows that the US is bound to the rules prohibiting use of force without the UN mandate. Second, the creation of a customary international law could be prevented through a persistent objection. International community through its negative reactions to the US action has succeeded in preventing this practice from establishing a customary rule.

On the other hand, the world has also witnessed the progressive development of international law in accommodating the needs of the international community. To mention a few examples, international law has developed in regulating sea, air and space, human rights, protection of environment, and treaties. Its approach is also going beyond the traditional one, such as the emergence of the concept common heritage of mankind for resources and the concept of erga omnes  in human rights. Both concepts have left aside, if not diminished, the principle of state sovereignty, as their applicability is not on the basis of state consent.

Having analysed the present complex system, it shows that international law developed continuously in accordance with the notions of international relations. But the time is now ripe, following the nature of globalization, for its development to touch not only its norms but also its traditional principles. Strict or even absolute approach to the principle of international law as previously upheld by states is now becoming obsolete. As the Westphalian inter states are fading away, it should be the task of international law and international relations to provide new principles or to redefine them so that they fit to the new system.

How the international community acquires new principles governing their relations in the present system is also a complex issue. International law has an established mode for dealing with how the rules of international law should be sought, created and developed. It could be through Custom, Treaties, General Principles of Law, Judicial Decisions, Writers, and the UN Resolution. But again this mode is on the basis of the Westphalian System in which consent of states is a paramount. Whether or not it still fits the new dynamic of present system is also worth discussing.

To conclude, having seen the complexity of the new system, the discipline of international law and relations should play a key role in helping the international community to rebuild its peaceful relations in the present unpredictable system. Since the Westphalian system is becoming obsolete, it is the interest of the international community to embrace all international actors in the process of rebuilding the world system. In this sense, the foreign policy of super powers together with others states must be that of mutual engagement rather that containment or alienation termed as “either you are with us, or you are with the terrorists”.

In the present system terrorism cannot be dealt solely by resort to force. The root of the problem should be adequately addressed. President Soekarno in his statement to the UN GA in 1960 has strongly convinced the Assembly about how peace should be achieved, in his own wordings: “remove the causes of war and we shall be at peace, remove the causes of tenses and we shall be at rest” and he blamed inequalities among states was the cause of conflict. Many people believe that the cause of terrorism is deeply rooted in injustice, poverty, underdevelopment, and the exclusive nature of the world system. These issues are already slowly fading away in the agenda of the North-South relations. Are these issues becoming relevant to reintroduce to the world agenda? Again it is the task of the disciplines of international law and relations to deal with. But if it is so, they must be revived in a new format i.e. for the interest of human security rather than that of state security and in the framework of a new globalize system rather than that of Westphalian inter-state system. All of these complicated and interconnected issues lead to a question: Is there a need to redefine fundamental principles of international law?


Selected Bibliography:

-          The Globalization of World Politics, Edited by John Baylis and Steve Smith, Oxford University, 1997
-          D.J. Harriy, Cases and Materials on International Law, Sweet and Maxwell, 1988
-          Starke, J. G. Starke's International Law (11th ed., 1994 / I.A. Shearer)
-          BUZAN, B., People, States and Fear , 1991
-          Global Trends 2015: A Dialogue About the Future With Nongovernment Experts, National Intelligent Council, December 2000.
-          Antonio Cassese, International Law in a Divided World, Clarendon Press Oxford, 1992.
-          Malcolm N. Shaw, Internatonal Law, Grotious, 1991
-          J.J. G. Syatauw, Some Newly Established Asian States and the Development of International Law, Martinus Nijhoff, 1961
-          “To Build a World New”, Statement of President Soekarno before the UN GA, September 30, 1960,
-          John Ikenberry, the Miyth of Post-Cold War Chaos, Foreign Affairs, May/June 1996
-          S.P. Huntington, The West and the World, Foreign Affairs November/December 1996
-          Jeffrey Carlyle, Dr. Grez-Escandon, Sovereignty and International Law, Political Science, 1998
-          Peter Rowe, Responses to Terror: The New `War´, Melbourne Journal of International Law, Vol 3, 2002.
-          Jordan J. Paust, ASIL Insights, The US as Occupying Power Over Portion of Iraq and Relevant Responsibilities Under the Laws of War, April 2003, ,
-          Frederic L.Kirgis, ASIL Insights, Terrorist Attacks on the World Trade Center and the Pentagon, September 2001,
-          Legal Basis for the US for Use of Force against Iraq as stated by President Bush in Address to Nation, March 17, 2993, and -- International Law and the Pre-emptive Use of Force Against Iraq, updated September 23, 2002, by David M. Ackerman, Legislative Attorney, American Law Division,
-          Legal Basis for Use of Force against Iraq as set out by the Attorney General, Lord Goldsmith, of the UK,
-          Benedict Kingsbury, Sovereignty and Inequality, EJIL, Vol. 9, 1998
-          Bruno Simma, NATO, the UN and the Use of Force: Legal, EJIL, Vol. 10, 1998
-          Symposium: The Changing Structure of International Law Revisited (Part4), EJIL Vol. 9, 1998
-          Philip Allot, the Concept of International Law, EJIL, Vol. 10, 1998.


[*] Graduated from Faculty of Law, UNPAD, Master Degree in International Law and Politics, University of Hull, England, and now  doing  Phd Program at the University of Vienna.


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