Vol. 4 [2007] Brussels Journal of International Studies 1

The Effects of Population Growth on Economic Performances in China

and India

Brandon Lozeau1

Economic performance and population growth are expressly linked and China and India

are the two most populated nations in the world. While a large population might translate

to having a large labour force, several key economic factors have contributed to how the

Chinese and Indian populations have grown and what differing effects that growth has

had on their developing economies. This essay aims to highlight some of the very

important differences in the population growth rates of these two Asian states and how it

might explain the variation between their economic development and performance. This

essay will not only touch upon the pure economic data, but also find a place for political,

cultural, and sociological links between the following: per capita income, fertility rates,

technological advancement, education, population control policy, and government

intervention.

Population growth can have several effects on the economic expansion and

performance of a country. China, with 1.32 billion people, and India, with 1.1 billion

people, together are home to almost two and a half billion people on a planet with almost

six and a half billion inhabitants.2 Though they each enjoy the same factor endowment,

namely a large labour force, several key economic factors have contributed to how the

Chinese and Indian populations have grown and what differing effects that growth has had

on their developing economies. This article will concentrate on some of the important

differences in the population growth of these two Asian states and how they might explain

the variation between their economic development and performance. While a brief article

will not entail all economic measures and factors linking population and economic

performance, this article will touch upon links between the following: per capita income,

fertility rates, technological advancement, education, population control policy, and

government intervention.

Much of the original foundation for studying the economic effects of population

growth stem from the writings of Thomas R. Malthus (1766-1834). The Malthusian model

highlights two main ideas. “The first is the existence of some factor of production, such as

land, which is in fixed supply, implying decreasing returns to scale for all other factors.

The second is a positive effect of the standard of living on the growth rate of

1 Brandon Lozeau attended the University of Massachusetts at Dartmouth as an undergraduate majoring in

political science and French with a minor in economics, and receiving a certificate in international marketing. Studying international political economy at the Brussels School of International Studies, he has taken a great interest in economic and sustainable development in the developing world.

2 Chinese population figures come from the China Population and Information Research Center (CP IRC) (http://www.cpirc.org.cn/en/eindex.htm. Accessed: 25 April 2008) while the Indian figures are taken from the Population Reference Bureau (PRB) (http://www.prb.org/. Accessed: 25 April 2008).

Vol. 4 [2007] Brussels Journal of International Studies 2

population.”3 Economic growth rates in China, according to the Asian Development

Bank’s Country Economic Review (CER) done in 2002, have featured in the 7-8% per

annum range, which has led to an unprecedented rise in the standard of living for millions

of Chinese.4 India’s CER published a steady rise to around 6% annual growth for 2001.

5

While this outstanding growth has brought enormous benefit to citi2ens of both countries,

India and China have fallen into the “Malthusian Population Trap.”6 When population is

low the standard of living is higher but, “When population si2e is large, the standard of

living will be low, and population will be reduced by either the ‘preventive check’

(intentional reduction of fertility) or by the ‘positive check’ (malnutrition, disease, and

famine).”7

The “preventative” check of which Malthus spoke, the intentional reduction of

fertility, is commonly seen as one of the keys to subsiding population growth for the

future. There are several economic factors that are linked to fertility rates, such as

technological advancement and increased levels of education. In developing countries

children are often seen as an economic asset, a tool to help increase agricultural

production and also to ensure that a caregiver exists when parents get older. “Demand or

need for large numbers of children is driven down by improvements in living standards

and child survival and by the moderni2ation of economies.”8 The movement away from

agricultural production and into more modern industries in the manufacturing and

services sectors negates the necessity to have large numbers of children. In examining the

employment construct of the Chinese versus the Indian work force, one will notice that

the Chinese economy is the more modern of the two. Using 2003 estimates, 49.1% of

Chinese were employed in the primary sector, with 21.6% working in the secondary and

29.3% in the tertiary sectors.9 Comparably, in India the primary sector is responsible for

60% of employment, with the secondary and tertiary sectors accounting for 12% and 28%

of employment, respectively.10

The large agricultural presence in the Indian economy

partially explains why higher fertility rates pervade the population, due to needing

children to help with family agricultural plots.

3 Galor, Oded and David N. Weil. “Population, Technology, and Growth: From Malthusian Stagnation to the Demographic Transition and beyond.” The American Economic Review, Vol. 90, No. 4 (2000), p. 807.

4 Asian Development Bank. www.adb.org/documents/CERs/PRC/CER_PRC_2002.pdf. 2002. Accessed: 1

May 2008. Various economic reports since 2002 have listed economic growth anywhere from 7-11.5% per

annum.

5 Asian Development Bank. www.adb.org/documents/CERs/IND/2001/ind_2001.pdf. Accessed: 1 May 2008. Figures since 2001 have shown Indian economic growth anywhere from 5.5-9.4% per annum.

6 The Malthusian Population Trap refers to the tendency for population to grow at a geometric rate while food production increases at an arithmetic rate. There are decreasing returns to scale on the fixed-capital

(land) as population grows.

7 Galor, Oded and David N. Weil, op. cit., p. 807.

8 Cleland, John. “Population growth in the 21st century: Cause for crisis or celebration?” Tropical Medicine

and International Health, Vol. 1, No. 1 (2006), p. 21.

9 Chinese Government’s Official Web Portal (www.english.gov.cn/official/2005-07/28/content_17992.htm.

Accessed: 1 May 2008). Primary sector refers to industries in agriculture and other natural resources, while the

secondary sector entails manufacturing and construction, and the tertiary sector encompasses services.

10 Central Intelligence Agency, www.cia.gov/library/publications/the-world-factbook/geos/in.html. Accessed: 1 May 2008. These estimates are also from 2003.

Vol. 4 [2007] Brussels Journal of International Studies 3

Though India and China have almost similarly sized populations, it is the

technological progress of the Chinese that has allowed them to better sustain the

population growth of the last few decades and increase their per capita income. Without

this important technological progress a rise in the standard of living becomes very difficult

and sustaining high population growth becomes more challenging:

“During this Post-Malthusian Regime, the Malthusian mechanism linking higher income to higher population growth continued to function, but the effect of higher population on diluting resources per capita, and thus lowering income per capita, was counteracted by technological progress, which allowed income to keep rising.”11

According to Galor and Weil, now that the Chinese have moved into a majority

manufacturing and services based economy they will be able to continue to increase per

capita income. If the Indian government can create and manage a transition to an

economy based on manufacturing, services, and technological advancement, then

incomes will rise as a result and fertility rates will fall. Due to population control

policies in China, which will be discussed later in this article, the Chinese labour force

will reach a peak and then begin to shrink causing a slowdown in Chinese economic

growth. Barlow argues that the kind of economic growth seen in China is not sustainable

because of this lagged fertility rate.12

The “one-child” policy implemented in China

since 1978 has contributed to a low current fertility rate, while before the policy was

implemented the fertility rate was 5.75, which has contributed to high lagged fertility.13

Barlow explains that low current fertility will eventually translate into low lagged

fertility which, in turn, will mean a slowdown in economic expansion. “If current

fertility is low, lagged fertility will eventually reach a low level and an important source

of economic expansion— namely, rapid growth of the labor force—will disappear.”14

Since India’s rate of population growth has remained higher than that of China, the

Indian labour force will eventually outnumber the Chinese possibly keeping wages

lower in India and thus making it a more attractive host for industry. This is promising

for India as it may indicate a transition to a more manufacturing and services oriented

economy in the near future.

Education level is also shown to have a positive correlation with gross domestic

product (GDP). With regard to China and India however, within the sphere of education, it

is the gender gap in education that has hurt economic growth in the latter. As

technological progress can keep per capita income on the rise, maintaining a high

11 Galor, Oded and David N. Weil, op. cit., p. 808.

12 Robin Barlow has conceived this notion of lagged fertility and operationali2es it as such: (1) in the short

run, an increase in fertility tends to have negative effects on per capita income growth; (2) in the long run, its

(partial) effects tend to be positive; (3) because current fertility is highly correlated with past fertility, current population growth rates capture both the short-run negative and the long-run positive effects; (4)

hence in a two variable correlation, current population growth appears to have a 2ero impact on current per

capita income growth, even when it really has a negative short-run effect.

13 Shen, Jianfa. “China’s Future Population and Development Challenges.” The Geographical Journal, Vol.

164, No. 1 (1998), p. 33.

14 Barlow, Robin. “Population Growth and Economic Growth: Some More Correlations.” Population and Development Review, Vol. 20, No. 1 (1994), p. 157.

Vol. 4 [2007] Brussels Journal of International Studies 4

commitment to education, especially for women, can have a similar effect. “South Asia is

the region where, apart from Sub-Saharan Africa, girls’ education lags most severely

behind boys’. Gender differences in primary level enrolment range from 15 to 50

percentage points.”15

East Asia (which includes China) “has the fastest economic growth

rate and highest education level of any third world region”16

and can be partially

attributed to more equal enrolment in school among males and females. “The education

gender gap is relatively low and women comprise larger share of labour force than in any

other third world region...”17

which is a testament to the importance of gender equality in

education.

Education also ties into fertility rates, per capita income, and technological

advancement, which underlines the truly interconnected nature of these social factors.

“Not surprisingly, certain indicators of advanced development are consistently correlated

with low rates of fertility: high rates of literacy, high per capita consumption of energy,

high rates of urbani2ation, low rates of infant mortality, high per capita income.”18

This

acknowledgement of the intricate relationship between these factors underlines the

necessity for any governmental policy or action to be taken in a multi-pronged approach.

“No one intervention can be expected to affect fertility in a simple downward direction:

the relation between each variable and fertility is complex, as are the relations among

these variables and their joint effect on fertility.”19

Higher education levels for women

mean that there is a larger pool of skilled labour which will push for greater industrial

development. If the Indian government invested as heavily as the Chinese in primary and

secondary education, then it would be foreseeable that more rapid industrial transition and

economic development would occur. As Birdsall argues, an increase in education level

translates into an increase in per capita income which has a negative correlation with

fertility rates. “Any success in increasing incomes of the poorest groups is likely to have

fertility-reducing benefits; this includes increasing availability of services in health and

education to those groups.”20

That is to say that any increase in education for a woman

leads to a corresponding decrease in her fertility rate.

Higher education levels for women also lead to the delay of marriage, which

would then, presumably, lead to a decrease in fertility as well. Education is meant to be

more than just enrolment levels in primary, secondary, and higher educational institutions.

Education also refers to family planning resources which has a direct and obvious effect

on fertility rates. Population growth can be curbed by strategic investments by the state in

family planning services and education. In fact, some economists have argued that it is

one of the most significant investments for a developing country. In referring to the work

of Stephen Enke, Birdsall talks about his estimated value of “prevented birth” and the

return on investment in family planning services. “He

15 Baden, Sally and Cathy Green. “Gender and education in Asia and the Pacific.” BRIDGE (development — gender), Institute of Development Studies, University of Sussex, UK, (1994), p. 9.

16 Ibid, p. 9.

17 Ibid, p. 10. 18 Birdsall, Nancy. “Analytical Approaches to the Relationship of Population Growth and Development.”

Population and Development Review, Vol. 3, No. 1/2 (1977), p. 82. 19 Ibid, p. 91.

20 Ibid, p. 91.

Vol. 4 [2007] Brussels Journal of International Studies 5

used his estimate to compare the return from traditional development spending to the

return from spending on family planning that was 100 to 500 times more effective than

spending on other development projects.”21

Lowering fertility rates is not the only

benefit of educating women obviously. More education means a more productive

labourer which has a direct effect on economic growth. Baden and Green note that the

higher rates of economic and technological growth in East Asian countries are “in part a

result of their relatively high levels of education and growing pool of post-primary

educated workers.”22

The higher education levels attained by women in China versus the

very low levels attained by women in India may account for a very large opportunity

cost.

One might be able to argue that the “one-child” policy in China has had more than

just the intended effect of lowering fertility rates. In fact, combined with increasing per

capita incomes due to rapid urbanisation in the last few decades, this policy has helped to

build an even more educated future workforce. Through investments in education, health,

and commodities associated with higher standards of living, Chinese parents are now

ensuring that the next generation of the work force is highly skilled in an increasingly

technologically savvy economy. “The advent of modern schooling raises the cost of

childbearing and removes children from productive activities. It becomes possible for

parents to invest in their offspring and to substitute quality for quantity.”23

The complexity

and interconnectedness of all these variables on population growth and economic

development draw attention to the mammoth task facing governments in many developing

countries. This task necessitates a government that is in a position to make substantial and

lasting reforms, policies, and sacrifices to ensure a healthy symbiosis between population

structure and economic growth and performance.

China has been mostly successful due to the strong political position of the

Chinese Communist Party (CCP) in its government. In contrast, the government in India is

in an often weak position when it comes to compelling meaningful and reform in the

economic sphere. India has indeed embarked on a population control policy of its own.

Family planning programmes have existed in India since 1951, making it one of the first

countries to make efforts in this direction. However, there has been very inconsistent

monitoring of those programmes which has resulted in widespread noncompliance.24

The

population control policy of China has already been mentioned as a key factor in slowing

population growth however, other factors have contributed to the high level of Chinese

economic performance in the face of an increasing population.

The huge success of the Special Economic Zones (SEZs) established in China has

been attributable to a couple different factors. The centralisation of the Chinese economy

allowed the government to set up these SEZs where they saw fit, dictating domestic

21 Ibid, p. 72. Birdsall cites Enke, Stephen. Raising Per Capita Income Through Fewer Births. Santa

Barbara: General Electric-TEMPO, 1967. 22 Baden, Sally and Cathy Green, op. cit., p. 10.

23 Cleland, John, op. cit., p. 21.

24 Sarin, Ashi R. “India: Population-Control—A Dismal Record Of Non-Performance.” XII Patiala Fogsi

Conference of Obstetrics/Gynecology. Nov. 12, 2000.

Vol. 4 [2007] Brussels Journal of International Studies 6

migration and population patterns for decades to come. As a result, urbanisation has been

concentrated in a small number of economically strategic locations. The fragmentation in

the Indian system, attributable to its democratic governmental structure, has not allowed

for such precise coordination and has thus led to slower urbanisation and a lesser skilled

work force. Larger urban areas permit greater industrial concentration which “generates a

higher level of employment than what can be achieved with industries spread out in

separate urban areas. Higher levels of Urbanisation mean a large overall labor market and

a large service sector interacting with manufacturing.”25

Mitra’s point emphasises where

China currently is in terms of economic growth and where India should aspire to be, via a

more concise and coordinated approach to an industrial transition. Mitra also highlights

that “average productivity increases with the size of the labor market, as average match

between the skill characteristics of workers and the job requirements of firms improves

with an increase in the size of the labor market.”26

This is yet another more attainable

condition for China than for India.

The developmental state model has been pursued by China and India with

varying success. The goals of difficult policies aimed at implementing and/or

monitoring, like population control, are more achievable with the presence of an

authoritarian regime.27

While it deserves much credit for maintaining the world’s largest

democracy, the Indian government is slow and unresponsive when the issues of

population growth and economic performance require nimbleness and decisiveness. First

possible steps in alleviating the stress of population growth on economic performance

might rest with empowering women through education which would, in effect, reduce

fertility rates which, in turn, would raise per capita incomes, thus allowing for greater

education investments in children, precipitating urbanisation as a more skilled workforce

searches for employment that spurs technological advancement. While there is still

much that can be written on the effects of population growth on economic performance,

especially in such rapidly developing (and growing) countries like China and India, this

article has aimed to highlight certain key factors of population and economic growth and

has attempted to illustrate the causal links between: per capita income, fertility and

lagged fertility rates, technological advancement, education and family planning

services (or population control policies in the case of China), and the aspects the

government is able to affect.

25 Mitra, Arup. “Total Factor Productivity Growth and Urbanisation Economies: A Case of Indian

Industries.” Review of Urban & Regional Development Studies, Vol. 12, No. 2 (2000), p. 97. 26 Ibid, p. 97-8.

27 While authoritarian regime has a negative connotation, it is used here simply to describe the Chinese

government as a one party system.

Vol. 4 [2007] Brussels Journal of International Studies 7

Bibliography

Asian Development Bank. www.adb.org/documents/CERs/IND/2001/indD2001.pdf. Last

updated: December 2001. Accessed: 1 May 2008.

Asian Development Bank. www.adb.org/documents/CERs/PRC/CERDPRCD2002.pdf.

Last updated: August 2002. Accessed: 1 May 2008.

Baden, Sally and Cathy Green. “Gender and education in Asia and the Pacific.” BRIDGE

(development — gender), Institute of Development Studies, University of Sussex,

UK, June 1994, pp. ii-91.

Barlow, Robin. “Population Growth and Economic Growth: Some More Correlations.”

Population and Development Review, Vol. 20, No. 1, Mar. 1994, pp. 153-165.

Birdsall, Nancy. “Analytical Approaches to the Relationship of Population Growth and

Development.” Population and Development Review, Vol. 3, No. 1/2, Mar. — Jun.

1977, pp. 63-102.

Central Intelligence Agency. www.cia.gov/library/publications/the-world-

factbook/geos/in.html. Last updated: 2003 (statistics in cited article). Accessed: 1 May 2008.

China Population and Information Research Center (CP IRC). www.cpirc.org.cn. Last

updated: 25 April 2008. Accessed: 25 April 2008.

Chinese Government’s Offical Web Portal. English.gov.cn/official/2005-

07/28/content_17992.htm. Last updated: 2003 (statistics in cited article).

Accessed: 1 May 2008.

Cleland, John. “Population growth in the 21st century: Cause for crisis or celebration?”

Tropical Medicine and International Health, Vol. 1, No. 1, Feb. 2006, pp. 15-26.

Galor, Oded and David N. Weil. “Population, Technology, and Growth: From

Malthusian Stagnation to the Demographic Transition and beyond.” The

American Economic Review, Vol. 90, No. 4, Sep. 2000, pp. 806-828.

Mitra, Arup. “Total Factor Productivity Growth and Urbanisation Economies: A Case of

Indian Industries.” Review of Urban & Regional Development Studies, Vol. 12,

No. 2, Jul. 2000, pp. 97-108.

Population Reference Bureau (PRB). www.prb.org/reports/2007/Indiaprojections.aspx.

Last updated: September 2007. Accessed: 25 April 2008.

Sarin, Ashi R. “India: Population-Control—A Dismal Record Of Non-Performance.” XII

Patiala Fogsi Conference of Obstetrics/Gynecology, Nov. 12, 2000.

Vol. 4 [2007] Brussels Journal of International Studies 8

Shen, Jianfa. “China’s Future Population and Development Challenges.” The

Geographical Journal, Vol. 164, No. 1, Mar. 1998, pp. 32-40.

United Nations Statistics Division.

http://unstats.un.org/unsd/cdb/cdb_help/cdb_quick_start.asp. Accessed: 26 April 2008.

Vol. 4 [2007] Brussels School of International Studies 9

Human Capital and Class Politics

The rise of Knowledge as a Means of Production and the fall of Class

Politics

Douglas Voigt1

This article presents an alternative causal argument to the decline of class-based politics

in the developed world. Opening with a critical engagement ofInglehart’s postmaterialist

value-shift hypothesis, the article demonstrates that both class and materialism are rife in

supposedly postmaterialist societies. Therefore, an alternative explanation must be

unearthed for the decline in class-based politics. Utilising a causal Marxist framework,

the explanation offered is that, due to rapid technological advancement coupled with

globalisation, the traditional members of the labour class are atomised due to the

increasing reliance on individual human capital in opposition to standardised labour as a

productive input. Thus, traditional labour becomes dependant on capital for intrinsic

value. Moreover, through financialisation and labour-market liquidity — all structural

realities of the post-industrial economy — the traditional interests of labour,

redistribution and de-commodification, increasingly resemble capital, room for

aggregate growth and individuation. In other words, capital as a class, through

appropriating traditionally labour-oriented political entities, is remaking man into its

own image through the socially disembedded and immutable forces of the market — a

classically totalitarian phenomenon.

INTRODUCTION

This article aims to critically engage the post-materialist value-shift hypothesis

specifically regarding its application as a causal factor in the decline of class-based

voting in the developed world. It will thus argue that the breakdown of class-based

politics is not primarily a manifestation of a post-materialist value shift, as Ronald

Inglehart posits, but rather reflects the atomisation of economic agents — especially

labour. Namely, with the acceleration of economic transformation to a post-industrial,

increasingly globalised and volatile economy, individual agents no longer identify the

relationship between politics and economics in terms of a class-based redistributive

framework. They are instead compelled to seek political leadership focused on aggregate

growth — as individual economic position, after atomisation, can only be meaningfully

addressed through ensuring aggregate economic growth.

1 Douglas Voigt obtained a Master’s of Arts with distinction in International Political Economy from the

University of Kent in Brussels in 2007 where he was also awarded the John Groom Prize. He is currently a

Dean’s Fellow in the PhD program in Political Science at the New School of Social Research in New York

City.

Vol. 4 [2007] Brussels School of International Studies 10

I will begin with a summarisation of Inglehart’s theory and a comparison with economic data. Through this, I will determine that class still exists, and materialism has not declined as post-materialist values imply. I will then deliver the elements of atomisation

2 through two interrelated concepts: Capital Dependency and Accelerating

Liquidity. I will subsequently elucidate the manifestation of these in politics. I will then present

some shortcomings of my thesis — primarily its excessive determinism.

This is a causal argument based on a methodologically deterministic historical

materialism3 and therefore rests on an ontological conceptualisation of class in Marxist

terms. Although beginning with an empirical critique of Inglehart’s thesis, the

fundamental elements of the argument rely on a rather strict interpretation of Marx and

only through this interpretation, Herbert Marcuse.

INGLE HART’S POST-MATERIALISM AND ECONOMIC REALITY

Many theses have been proposed regarding the breakdown of class-based politics

in the developed world. One of the first was proposed by Ronald Inglehart and argued that

after a certain threshold of material well-being is reached, succeeding generations

gradually shift focus towards post-materialist values. Before elucidating the atomisation

thesis in the next section, I will make a critical summary of Inglehart’s post-materialist

thesis below, and in so doing, provide the essential foundations for the subsequent

argument.

Class in the Post-Industrial Economy

This article does not aim to debate whether class is a legitimate social category.4 It

assumes that it is and is represented through the disparity of wealth. It will be defined in

the traditional Marxist terms of those who own the means of production in the form of

capital, the bourgeoisie, and those who must procure economic survival through labour,

the proletariat.5 Furthermore, the question of whether class-based politics — characterised

by membership in left-wing parties, unionisation and strike behaviour — is declining shall

2 My definition of this concept will be gradually revealed throughout the work, however, we shall take

Hannah Arendt’s definition of ‘isolation’ as an adequate foundation, “Isolation is that impasse into which men are driven when the political sphere of their lives, where they act together in the pursuit of a common

concern, is destroyed. Yet isolation, though destructive of power and the capacity for action, not only leaves

intact but is required for all the so-called productive activities of men.” (Arendt, H. Totalitarianism, Book

III of The Origins of Totalitarianism, New York, Harcourt, Brace and World, Inc. 1951, p. 172) While

isolation is a state of being, atomisation is perhaps more a state of becoming — from ‘togetherness in

pursuit of a common concern’ towards isolation.

3 I justify this use based on the notion that Marxism is just a mirror image of the deterministic nature of orthodox capitalist economics and therefore only gains in accuracy and efficacy in parallel with its antithesis

— in this day and age, known as Neo-liberalism.

4 For such a debate see, for instance, Pakulski, J. and Waters, M. “The Reshaping and Dissolution of Social

Class in Advanced Society” in Theory and Society, Vol. 25, No. 5 (1996), pp. 667-691.

5 For a brilliant depiction of this, drawing from Amartya Sen, see Offe, Claus, Disorganized Capitalism, Cambridge, Polity Press, 1985 — in essence, the proletariat is the supply side of the labour market while the

bourgeoisie is the demand side.

Vol. 4 [2007] Brussels School of International Studies 11

not be addressed.6 As many authors, such as Lipset and Inglehart himself, have already

alleged this, I will take it as a reasonable assumption. This article aims to explain why.

Therefore, despite the alteration of economic production characterised by a post-

industrial economy,7 it is scarcely necessary to point out that class still exists in developed

countries. Nevertheless, several methods are used to study the inequality of wealth and

income. Despite the fact that wealth disparity appears more extreme and indicative of

class than income disparity8 — as it deals more directly with asset ownership — most

studies focus on income disparity. Regardless, the most common tool to measure both

income and wealth disparity is a rather complex economic formula based on the Lorenz

curve known as the Gini Coefficient. Basically, the higher the Gini coefficient is, the

higher the inequality and the more apparent the existence of classes.

Referencing Wolff, Keister and Moller point out that for the United States:

“... in 1989 the top 1% of wealth owners held 38.9% of total household wealth, while

the top 1 % of income earners received 16.4% of total household income. The top

quintile of wealth holders owned almost 85% of total household wealth, and the top quintile of income recipients received just over 50% of total family income...

Moreover, the Gini coefficient for wealth increased from 0.80 in 1983 to 0.84 in 1989

(Wolff 1994). In contrast, the Gini coefficient for income in 1989 was 0.52.”9

While recent increases in US wealth disparity10

seem to indicate that the post-

industrial economy exacerbates class differences, many other studies, for instance John

6 For this debate, for instance, see Azmanova, A. “The Mobilisation of the European Left in the Early 21st Century” in Archives Européennes de Sociologie, vol. XLV, no. 2 (2004), pp. 273-306; Robinson, W. A

Theory of Global Capitalism: Production, Class and State in a Transnational World, John Hopkins

University Press, 2004; Manza, J. Hout, M. Brooks, C. “Class Voting in Capitalist Democracies Since

World War II:Dealignment, Realignment, or Trendless Fluctuation” in Annual Review of Sociology, Vol. 21.

(1995), pp. 137-162.

7 Albeit essential to understand the thesis of this article, I have included a basic model of the difference between an industrial and post-industrial economy in Appendix A due to its tacit relationship with the main

thesis.

8 It is important to note the difference between wealth and income. Keister and Moller point out

“Sociologists typically focus on income, or the flow of money received by an individual or household, as

an indicator of financial well-being. In contrast, wealth, or net worth, is the value of assets owned by the

household. More precisely, net worth is the difference between total assets (including real assets such as houses, real estate, and vehicles: and financial assets such as checking and savings accounts, stocks, and

bonds) and total liabilities or debt (such as mortgages, car loans, student loans, and credit card debt).

Researchers have documented that income inequality is extreme, but recent evidence suggests that

inequality is much worse if wealth is taken into account as there are advantages associated with wealth

ownership that income alone cannot provide.” (Keister, L. and Moller, S. “Wealth Inequality in the United

States” Annual Review of Sociology, Vol. 26. (2000), p. 64) If we are to define class as the distinction

between those who derive wealth from ownership and those from the labour market, then the inequality of

wealth is more accurate.

9 Keister, L. and Moller, S. “Wealth Inequality in the United States” Annual Review of Sociology, Vol. 26. (2000), p. 65.

10 For more recent Data just on income, Paul Krugman writes, “We know what John D. Rockefeller, the richest man in Gilded Age America, made in 1894, because in 1895 he had to pay income taxes... His return

declared an income of $1.25 million, almost 7,000 times the average per capita income in the United States

at the time... Last year, according to Institutional Investor’s Alpha magazine, James Simons, a hedge

Vol. 4 [2007] Brussels School of International Studies 12

Weeks’ 2005 UNDESA11

working paper, have concluded that wealth disparity in the post-

industrial economy is largely a reflection of political policies. Weeks remarks:

“...the four countries with trends towards greater inequality are those which pursued a

broadly similar policy programme that has come to be called ‘neoliberal’... In each of

these countries, the decade average inequality for the 1980s and 1990s was higher than

in the pre-liberalization 1960s and 1970s.”12

Nevertheless Weeks’ study does point out that aside for mildly decreasing Gini

coefficients in Canada, Italy, Norway and Spain, the majority of the OECD countries

surveyed,13

all of which would be considered post-industrial economies,14

maintained a

relatively stable disparity in wealth. He thus concludes that wealth disparity in developed

economies results from political policies and not in fact according to any underlying laws

of economics — such as the Kuznets curve. In context of the present analysis, the very

fact that OECD Gini coefficients have remained stable throughout the transition to a post-

industrial economy — aside for policy-induced changes — is sufficient enough to indicate

the continuing existence of the wealth disparity and thus class structures upon which the

industrial welfare state was founded.

To therefore conclude, and in agreement with Inglehart, the erosion of class-based

politics cannot be owing to the empirical elimination of class itself. Another cause must

be found.

Inglehart’s Thesis

Ronald Inglehart presents a fairly straightforward thesis that covers a number of

different shifts in political behaviour and professed cultural ‘values’ which occurred at the

same time as the developed world’s transition to a post-industrial economy — the late

1960s throughout the 1970s. Essentially, increasing absolute wealth in all classes caused a

shift from survivalistic/materialist values towards self-expression/post-materialistic

values. This value-shift caused two main political effects: a shift from class-based politics

to quality of life politics and a shift from elite-directed political organisation to elite-

challenging organisation.

The causal basis of Ingelhart’s thesis supposes that after a certain threshold of

material well-being is reached, political and economic values change. He provides a

number of other causal factors, “including rising levels of education, shifts in the

occupational structure, and the development of increasingly broad and effective mass

fund manager, took home $1.7 billion, more than 38,000 times the average income. Two other hedge fund managers also made more than $1 billion, and the top 25 combined made $14 billion.” Krugman, P. “Gilded

Once More” Column, New York Times, April 27th, 2007. 11 United Nations Department of Economic and Social Affairs.

12 Weeks, J. “Inequality Trends in Some Developed OECD Countries” DESA Working Paper No. 6.

October 2005 http://www.un.org/esa/desa/papers/2005/wp6_2005.pdf, p. 6-7.

13 Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, Netherlands, New Zealand, Norway, Spain, Sweden, UK, and USA.

14 See model in Appendix A in relation to Sectoral employment statistics in: OECD Historical Statistics 1970-2000, OECD 2002.

Vol. 4 [2007] Brussels School of International Studies 13

communications networks,”15

However, for the developed world16

each of these is

causally dependent on two essential variables:

“1. The unprecedented prosperity experienced by Western nations during the decades

following World War II...

2. The absence of total war. The simple fact that no Western nation has been invaded for thirty years may have extremely significant consequences.

In short, people are safe and have enough to eat.”17

Following this simple assertion, Inglehart references an immense amount of

survey data collected in the post-WWII era which is accumulated in his 1977 magnum

opus, The Silent Revolution. Based on the categorisation of preference hierarchies into

materialist and post-materialist values, Inglehart deduces that those born after WWII are

increasingly post-materialist. He then categorises policy preferences through this value

dichotomy. He considers ‘quality of life’ issues such as aesthetically pleasing cities,

environmental protection, and intellectual expression as post-materialist values and

economic and class concerns as materialistic values. Naturally, the post-materialist

‘quality of life’ issues are increasing in importance.18

Going further, he also contends

“that rising rates of elite-challenging political action are a component of a cultural shift

from survival [materialistic] values toward self-expression values.”19

Since the 1970s when the post-materialist thesis manifested itself, Inglehart has

organised the World Values Survey and maintained that the trend towards post-

materialism in the developed world has continued. By 1994, Inglehart, writing with

Abramson, revisited the thesis and again confirmed that in the developed world the trend

towards post-materialism continued with ever more post-materialists emerging in the

West.20

Again in 2002, when addressing one of the aspects of this trend towards post-

materialism — elite challenging political behaviour — Inglehart and Catterberg conclude

that “as younger, better educated and more Post-materialist cohorts replace older ones in

the adult population, intergenerational population replacement will tend to bring a shift

towards increasingly participant politics.”21

Here Inglehart defines “participant politics”

15 Inglehart, R. The Silent Revolution: Changing Values and Political Styles Among Western Publics,

Princeton, Princeton University Press 1977, p. 21-22. 16 As his thesis originates in the 1970s Inglehart uses the traditional ‘Western’ to denote developed.

17 Ibid.

18 Source: Inglehart, R., op. cit.

19 Inglehart and Catterberg, “Trends in Political Action: The Developmental Trend and the Post-Honeymoon

Decline” International Journal of Comparative Sociology 2002, p. 306. 20 “Confirming lnglehart’s prediction (1971) of an intergenerational shift toward postmaterialist values, a

time series analysis controlling for the joint effects of inflation and unemployment demonstrates that

there is a statistically significant trend toward postmaterialism in all eight West European countries for

which data are available over the past two decades.” ( Inglehart, R. Abramson, P. R. “Economic Security and Value Change” The American Political Science Review, Vol. 88, No. 2 (1994), pp. 336) Although the

Belgians are apparently less post-materialistic, he concludes that high unemployment in Belgium

contributed to abnormal levels of materialism and when adjusting for these factors, Belgium too was increasingly post-materialistic from the 1970s to 1994. (See Ibid., p. 345)

21 Inglehart and Catterberg, op. cit, p. 303.

Vol. 4 [2007] Brussels School of International Studies 14

as “... elite-challenging activities that are loosely coordinated by ad hoc groups that come

into existence suddenly and disappear just as suddenly.”22

It is thus “clear that the shift

toward rising levels of elite-challenging participation that was predicted more than 25

years ago, has taken place in virtually all advanced industrial societies.”23

In other words,

organised blocs of people — often membership being centred on individual self-

identification in class-based organisations such as socialist parties or labour unions — is

declining while more horizontally structured blocs of individuals briefly coming together

for one cause or another is on the rise. Inglehart thus elucidates the trend towards short-

term group formation directed at the political expression of specific, evidently post-

materialist and apparently transient causes — not group formation on long-term structural

causes such as class struggle. Yet, as articulated above, classes continue to exist.

Inglehart’s thesis, in conclusion, asserts that the decline of class-based politics,

assumedly materialistic in nature, is incompatible with the increasingly post-materialist

mindset of individuals within the post-industrial society. Post-materialists instead search

for higher-order needs such as aesthetic pleasure, environmentalism and intellectual

pursuits. The articulation of these post-materialist pursuits comes through the transient

and ad hoc formation of groups to express a particular cause at a particular time.

Problems with the Post-materialist Thesis in Economic Reality

The fundamental problem with Inglehart’s thesis of value change is quite simple:

If society in the developed world was becoming post-materialist, this would be reflected

in social behaviour. Namely, if people’s materialistic aspirations were declining after

reaching a certain threshold of post-materialism, then consumption of material goods in

the developed world would be absolutely flat despite rising incomes. However this is not

the case.

Aside for casual observation of consumer behaviour in post-industrial societies,

most especially pronounced in the relatively wealthy suburban environment of many

North American cities — certainly well beyond the post-materialist threshold —

materialistic consumption is hardly flat or declining. According to a report by the US

Census Bureau, household expenditure on virtually all material goods dramatically

increased from 1992 through 2005 (See Appendix B). The United States of course was

the first post-industrial economy, and had been one of the first to cross the post-

materialist threshold. Although European societies, especially Germany,24

are flatter in

their consumption increase, and also had slower economic growth during the 1990s, the

very fact that as the transgenerational shift towards post-materialism is not being

reflected by mild declines in consumer spending, as a percentage of income, indicates

that at any given time the post-materialist threshold, at least as it is reflected in the

22 Ibid., p. 302. 23 Ibid. 24 See Deutsche Bank Research Report How will Senior Germans Spend their Money? Demography Special

—March 27, 2007, http://www.dbresearch.com/PROD/DBRD INTERNETDDE-

PROD/PROD0000000000208097.pdf for household expenditure by category from 1988 to 2003.

Interestingly, despite very limited population growth, and thus, presumably, very little increase in demand,

the relative household expenditure on housing nearly doubled in the 1988-2003 period. Other things such as

clothing and food also declined.

Vol. 4 [2007] Brussels School of International Studies 15

economy, rises simultaneously with economic growth. Such an implication suggests that

materialistic consumption remains at a standard or even increasing level well beyond the

point when post-materialistic values have taken over.

On the other hand, the lack of decline in materialistic consumption does not

necessarily denote a lack of post-materialist values. If post-materialist values are pursuits

of social and self-actualisation needs such as aesthetic and intellectual pursuits, then the

ironic possibility of fulfilling these needs through increased materialistic consumption

certainly does exist. In other words, materialistic consumption is the method by which

post-materialists fulfil their needs of self-actualization and psychological well-being.

However, under this supposition, class-based politics would not decline due to the very

fact that class still exists and needs are being fulfilled materially. In effect, post-materialist

and materialist needs are thus identical. Therefore, I simply assert that Inglehart’s thesis is

at least partially incorrect and other causes must be determined.

At this point, I have established the continuing existence of class despite the

decline in class-based political behaviour. I have also outlined the basic thesis of Inglehart

that the developed world has undergone a value shift away from materialistic needs

towards post-materialist needs and in so doing shown how he explains the decline of

class-based politics — as class-based politics are materialistic in nature — and their

replacement with politics based on post-materialist values such as aesthetics and

intellectual pursuits. However, I have also shown how, at least with respect to

materialistic consumption, no decline in materialistic consumer behaviour — implicit in

the post-materialist value structure — is apparent. I have also suggested that, because of

the lack of decline in materialistic consumer behaviour, post-materialist aspirations are

being pursued through material means. This last suggestion leads directly into the next

section, which will draw heavily from early thinkers of the Frankfurt School, and fully

elucidate the atomisation thesis.

ECONOMIC ATOMISATION

I will now elucidate the economic determinants of atomisation of labour in the

post-industrial economy. This will be represented through two concepts: Capital

Dependency and Accelerating Liquidity. Through this I will show how labour

conceptualises its economic agency as atomised individuals rather than the class that it is

— and thus relies on aggregate growth above redistribution to fulfil needs.

Capital Dependency

Previously, I have exposed the lack of post-materialism in consumer behaviour

and suggested a dependency on materialistic accumulation to fulfil post-materialist

psychological needs. I will now elucidate the first element of atomisation: Capital

Dependency.

Karl Marx, in the Gundrisse, states:

“The accumulation of knowledge and skill, of the general productive power of

society’s intelligence, is thus absorbed into capital in opposition to labour and appears

Vol. 4 [2007] Brussels School of International Studies 16

as the property of capital, or more exactly of fixed capital, to the extent that it enters into the production process as an actual means of production... human labour then no

longer appears as enclosed in the process of production — man rather relates himself

to the process of production as supervisor and regulator...”25

In other words, as production becomes increasingly based on technology rather

than labour, labour itself increasingly ceases to be needed in its industrial form, that of

the individual selling his only property, his physical labour. Instead, the technical and

applied knowledge of the individual, which has grown through the technological

advancement of society, becomes ‘human capital’ — itself initially transferred from the

surplus value extraction of labour into fixed capital during the industrial era,

subsequently increasing technology, and then diffused through society as knowledge in

the post-industrial era. The labourer then finds himself able only to accumulate human

capital in the form of education and skill training — the essential elements of a

successful individual in the post-industrial economy. He must subsequently sell it back

— the commodification of his very mental capacities — in order to transfer this human

capital back into the material possessions required for economic survival, and, as

mentioned earlier, the material possessions apparently required for self-actualisation and

psychological well-being.

Marcuse writes:

“The people are led to find in the productive apparatus the effective agent of thought and action to which their personal thought and action can and must be surrendered.

And in this transfer, the apparatus also assumes the role of a moral agent. Conscience

is absolved by reification, by the general necessity of things.”26

In other words, people — including labour — become increasingly dependant on

the capitalist “productive apparatus” to deliver both their physiological and psychological

needs. This is complemented by the fact that the productive apparatus itself, based on the

accumulation of capital, becomes dominated by fixed and human capital — in opposition

to labour. Therefore, in effect, each individual assumes the moral agency of capital.

Marcuse goes on to state, “At the most advanced stage of capitalism... society is a system

of subdued pluralism, which the competing institutions concur in solidifying the power of

the whole over the individual.”27

While primarily addressing the welfare state at the time,

Marcuse alights upon the notion that the competing, ‘grouped’ interests of capital and

labour, which Offe contends are mitigated by a competitive “exchange relationship,”28

transforms into a situation where these institutionalised groupings break down into

25 Marx, K. “Machinery, Automation, Free Time and Communism” in Grundrisse, from Karl Marx: Selected Writings Ed. McLellan, D. Oxford, Oxford University Press, 1977, p. 370-387.

26 Marcuse, H. The One-dimensional Man, Boston, Beacon Press, 1964, p. 79. 27 Ibid, p. 50.

28 “In capitalist societies, the labour market is the main institutional solution to a dual allocative problem...

on the one hand, the production system must be supplied with the labour inputs it requires; on the other,

labour power must be provided with monetary (income) and social (status) means of subsistence. The labour

market solves both of these allocative problems simultaneously... the labour market organises production

and distribution as an exchange relationship of wages and labour inputs and that here, as in all other markets, suppliers and buyers of labour stand opposed.” (Offe, C. Disorganized Capitalism Cambridge,

Polity Press, 1985, p. 14)

Vol. 4 [2007] Brussels School of International Studies 17

individual agents and a single structure — both with the complementary interest of

economic growth as means towards the end of psychological well-being. This ‘interest’ is

literally the interest of capital and, in the atomised economy, also the interest of labour.

The transformation of social groups into singular agents relating to a single structure is, at

its very core, the essence of atomisation.

Furthermore, to address Inglehart’s notion that elite-challenging behaviour is an

aspect of post-materialism, we find through the above process that capital itself is no

longer elite. What becomes elite is tradition-based exclusivity — that which structurally

prevents certain groups from assuming the mindset of capital — in forms such as racism,

chauvinism and homophobia.29

Class-based exclusivity becomes something not to be

challenged but something to aspire for as an individual sharing the competitive mindset of

capital. If one’s current state of psychological well-being is subjectively insufficient then

the accumulation of more capital is considered the rectifying means. If it is, the capitalist

apparatus is congratulated as the means by which that well-being was provided.

I have thus shown how the technological transformation of the production process

decreases the value of labour and instead increases the value of capital both in fixed and

human terms. As ‘human capital’ emerges as the primary commodity the traditional

labour class must ‘sell’ on the market, the incorporation of the mindset of capital in every

individual in turn leads to the atomisation of economic agents away from traditional class

categorisations. The empirically verifiable desire for capital accumulation in the labour

class30

thus leads to the political expression of maintaining aggregate growth — for

structural 1rowth in capital leads to the room for growth in individual agents within that

structure.3 This is partially responsible for the atomisation of labour. The second cause,

which I will term Accelerating Liquidity, is discussed below.

Accelerating Liquidity in the Post-industrial Economy

The accelerating liquidity of capital in the post-industrial economy — including

that of human capital through the labour market — comes in two forms: The Increasing

Depreciation Rate of Human Capital and Increasing Financialisation. These are discussed

below.

Increasing Depreciation Rate of Human Capital

29 Thus, when Inglehart and Catterberg write: “we find two divergent trends: on the one hand, the bureaucratized and elite-directed forms of participation such as voting and party membership have declined;

while the individually-motivated and elite challenging forms of participation have risen... to such an extent

that petitions, demonstrations, boycotts, and other forms of elite-challenging activities are no longer

unconventional, but have become more or less normal actions for a substantial part of the citizenry of post-

industrial nations.” ( Inglehart and Catterberg, op.cit., p. 301-302) they misinterpret the causal factor. This

‘horizontalisation’ of groupings suggests equality of individual membership at the same time as a requirement of individual initiative as the determinate factor of success and failure (rather than numbers); as well as the

transient nature of group solidarity — not only from nature of the political behaviour itself but the very fact

that hierarchies do not develop. This is a reflection of atomisation and not post-materialism.

30 See above subsection Problems with the Post-materialist Thesis in Economic Reality.

31 This is succinctly represented in John F. Kennedy’s famous remark, “A rising tide lifts all boats” in

that each boat is an individual and the rising tide is aggregate growth.

Vol. 4 [2007] Brussels School of International Studies 18

As Marx pointed out, and ignobly instituted later by Frederick Taylor and Henry

Ford, the labourer virtually becomes an extension of the machine — fixed capital —

rather than the reverse.32

As industrialism progressed, the productivity of machines

increased through technological innovation and with it the accumulation of human capital

in the labourer.

Eventually, production itself becomes primarily the utilisation of human capital,

and thus the utilisation of a form of fixed capital and no longer truly labour. As

technological advancement both creates and depends on the accumulation of human

capital, an accelerating virtuous circle develops until, theoretically, labour is entirely

eliminated from the process of production. Individuals that do not own the means of

production, of which, for clarity’s sake, I will continue to refer to as ‘labour,’ thus, in

effect, become ‘machines’ of embodied and illusorily autogenous capital. They borrow

capital, subsequently re-investing it in themselves through instrumental education, in

order to accumulate human capital and build their ‘portfolio’ — itself a commodified and

increasingly capital-based process.33

This ‘borrowing,’ whether literal in the form of

student loans, or figurative in the form of state or employer-sponsored training and

education grants or subsidies, suggests that the ‘ownership’ of human capital is curiously

debateable. For, at least in the neo-liberal Anglo countries, the accumulation of it is

implicitly dependent on the expected results of the capital-class who provided the money

in the first place — much like when firm A subcontracts firm B to build a machine which

is subsequently expected and contractually obliged to produce X amount of whatever unit

for firm A.34

Labourers endowed with human capital are then ‘purchased’ on the marketplace,35

employed for a time, and eventually cast aside — depreciated with age and further

32 “Thus the full development of capital does not take place — in other words, capital has not set up the

means of production corresponding to itself — until the means of labour is not only formally determined as

fixed capital, but has been transcended in its direct form, and fixed capital in the shape of a machine is

opposed to labour within the production process. The production process as a whole, however, is not subordinated to the direct skill of the worker; it has become a technological application of science.” (Marx,

K., op.cit., p. 375) For an extensive summary of this topic, see Offe, Claus, op. cit.

33 “Maintaining a high skilled workforce is also a key component of U.S. comparative advantage in the

world economy... Education reforms, such as those that address the funding and institutional organization of

schools and the degree of competition among schools promise to raise the productivity of education [my emphasis]... [ In addition], new technologies in the next 10 to 20 years offer tremendous potential to

revolutionize the way education and training is delivered in order to improve efficiency and effectiveness in

learning... individualized learning programs that are optimized for a given individual’s knowledge base and

learning style are expected for the future...” (Karoly, L. Panis, C. “The 21st Century at Work — Forces Shaping the Future Workforce and Workplace in the United States” Rand - Labor and Population; Santa

Monica, The Rand Corporation, 2004, p. xxv — xxvi)

34 It is only a short step of thought to suggest that individual labourers, in choosing to undertake some kind of training or education paid for by an employer — the investment of circulating capital into fixed in the

form of human capital — will no longer be implicitly but contractually obliged to perform at an increased

rate of productivity upon the completion of training.

35 Ulrich Beck points this out by saying, “More and more individual’s are encouraged to perform as a ‘Me & Co.’, selling themselves on the marketplace.” Beck, U. The Brave New World of Work Tr. Camiller, P.

Cambridge, Polity Press, 2000, p. 3.

Vol. 4 [2007] Brussels School of International Studies 19

technological advancement like any other machine.36

Unfortunately, the aforementioned

virtuous circle of technological advancement merely accelerates the depreciation rate of

human capital. This creates instability and high turnover in the labour market paralleled by

a continuous emphasis on retraining and upgrading each labourer’s effective ability to

serve in the production process.37

However, as each labourer becomes a commodified product of embodied capital,

the labour market becomes as competitive as any consumer market and thus emphasizes

the need for individual particularity38

that, in this case, is most productive for the

temporally specific needs of the consumer, the demand side of the labour market, capital.

Therefore with rapid technological change, human capital itself becomes increasingly

liquid which equates to the atomisation of labour through technologically driven labour

market turnover and structurally enforced self-differentiation.

The second form of Accelerating Liquidity comes through the nature of economic

production, or capital accumulation, in the post-industrial economy. I will term this

`Increasing Financialisation.’

Increasing Financialisation

Immanuel Wallerstein, although discussing international relations through and

economic-determinist perspective, pointed out that the core economy of the world

production system passed through three stages, industrialisation, commercialisation, and

financialisation.39

The latter stage is of course the stage where the accumulation of capital

becomes autogenous by the sheer quantity of it. In this situation, capital market liquidity is

institutionalised both domestically and internationally by interested parties — largely

through political machinations.40

As Wallerstein observes, this process itself is facilitated

by the rapidity of technological advancement in production and the subsequent need for

liquidity.41

36 Here it must be noted that the action-based method human capital accumulation, labour, requires a

decision on the part of the consumer, capital, to invest in each individual labourer and cannot be said to be

an intrinsic element of work itself because otherwise each employed labourer’s skills would constantly match the technological advancement of production process as a whole — something that clearly isn’t

happening. With the increasing commodification of education and skill training, this duty is evermore

imposed upon the individual.

37 The Karloy and Panis state: “Rapid technological change and increased international competition place the

spotlight on the skills and preparation of the workforce, particularly in the ability to adapt to changing

technologies and product demand. Shifts in the nature of business organizations and the growing importance

of knowledge-based work also favour strong nonroutine cognitive skills, such as abstract reasoning,

problem-solving, communication, and collaboration. Within this context, education and training become a continuous process throughout the life course involving training and retraining that continues well past

initial entry into the labour market.” Karoly, L. Panis, C. op.cit., p. xiv. 38 See RAND’s focus on individualised education, footnote 33.

39 See Wallerstein, I “Three Instances of Hegemony in the History of the Capitalist World Economy” (1983) in Crane and Amawi (ed) The Theoretical Evolution of International Political Economy, New York, Oxford

University Press, 1997, p. 244-252

40 For a description of this occurring, most especially internationally, see Stiglitz, J. Globalization and its

Discontents, London, Penguin Books, 2002.

41 “The rising wages of the workers in the core countries, combined with the increasing economic disadvantage of the leading economic producers, given constant technological progress, and heaviest

Vol. 4 [2007] Brussels School of International Studies 20

Moreover, after the institutionalisation of capital market liquidity, capital becomes

increasingly dependent on short-term accumulation through financial markets — the most

visible of which is the stock market. Culpepper observes:

“The growth of stock market finance increases the incentive for company managers to

raise funds on equity markets. The collective outcome of such individual choices,

though, is increased dependence of companies on short-term measures of market

performance, such as quarterly reports, that dispersed stock market investors use to

monitor companies. This forces company managers to maintain their access to

financial markets and to avoid being acquired by other companies.”42

Thus, executive compensation is becoming increasingly tied to share price in the

stock market through stock options and restricted stock43

— at least in the United States.44

Thus the leadership of a corporation becomes increasingly tied to short-term performance

which, in turn creates volatility in the labour markets in much the same way as the

technological advancement observed by Wallerstein does.

Therefore, the increasing depreciation rate of fixed capital through accelerating

technological innovation impels capital to push for capital market liberalisation and the

subsequent focus of the entire productive apparatus, represented by CEO compensation,

on financial market returns. This increases the short-term nature of capital accumulation in

the post-industrial economy. Consequently, the impermanence of successful firms in the

market, and capital’s aversion to long-term investment as a method of accumulation,

contributes to a capricious labour market which atomises labour through insecurity and

fluctuation of employment.

Supporting Authors

I will now draw from a study by Ulrich Beck and one by Carlos Frade and Isabella

Darmon to briefly illustrate the well-known volatility in the developed world’s labour

markets.

Beck notes:

investment in rapidly outdating fixed capital by precisely the leading producers, leads to an inevitable decline in comparative cost of production. For individual capitalists, the ability to shift capital, from a

declining leading sector to a rising sector [my emphasis], is the only way to survive the effects of cyclical

shifts in the loci of the leading sectors.” (Wallerstein, I “Dependence in an interdependent world” in The

Politics of the World- Economy, Cambridge, Cambridge University Press, 1984, p. 70) 42 Culpepper, P. “Institutional Change in Contemporary Capitalism — Coordinated Financial Systems since

1990”, World Politics 57 (2005), p. 173 — 199. 43 For instance, see Hall, B. and Liebman, J. “Are CEOs Really Paid Like Bureaucrats” The Quarterly

Journal of Economics, Vol. 113, Issue 3 (1998); for pro-stock options analysis which directly elucidates the

importance of labour (if CEOs could be called labour) and capital having singularity of purpose — both

simply desire the stock price to increase for greater capital accumulation.

44 See Lustgarten, A. “Europe’s 25 Highest Paid CEOs” Fortune July, 6th, 2006, at http://money.cnn.com/magazines/fortune/fortuneDarchive/2006/07/10/8380869/index.htm for an illustration

of the slowly emerging trend of stock option compensation in Europe as well.

Vol. 4 [2007] Brussels School of International Studies 21

“All around the world flexible work and insecure terms of employment are growing faster than any other form of work. In Germany between 1980 and 1995, the

proportion of dependant employees in regular work situations fell from 80 percent to

approximately 68 percent... If this trend continues... in fifteen years time... only half of

employees would then have a long term job protected by labour and social

legislation.”45

The same is happening in Southern Europe and in Britain and, in fact, the entire

developed world.46

Indeed, Frade and Darmon, in an extensive study of the increase of

insecure employment in Europe, note not only the considerable increase in fixed-term

contracts (such temporary agency employment), underemployment and pay-for-task

employment, but what they call “bogus self-employment.”47

They note, “the forms of

precarious employment mobilised differ from one sector and one country to the next,

according to what is made available by regulations, but certainly converge in one key

respect: evading the traditional employer-employee relationship... in that process the

boundaries between waged employment and self-employment became blurred.”48

What

these authors point out is what I term the increasingly liquidity of the labour market.

As I have pointed out earlier, because employment is increasingly dependent on the

possession of human capital, coupled with the importance of capital liquidity in the post-

industrial and financialised economy, the subjugating atomisation of individuals to the

needs of capital accelerates with the rapidity of technological advance. Bogus self-

employment is but the imposition of the capital mindset coupled with an illusory

ownership of the means of production in the form of human capital — for the only

consumer of that human capital is the capitalist class itself.49

The above section is an attempt to show the nature of atomisation in the post-

industrial economy first through the notion of Capital Dependency, where the

physiological and psychological desires are increasingly dependent on the process of

production while, simultaneously, the increasing necessity for human capital in the

45Beck, U. The Brave New World of Work Tr. Camiller, P. Cambridge, Polity Press, 2000, p. 84.

46 For instance, Beck writes that “the revolution [of economic production] is signalled by a new set of enigmatic terms developed in the social laboratory of management... lean production, subcontracting,

outsourcing, offshoring, downsizing, customizing, to name but a few. The most striking feature of this trend

is that it is developing fastest in relation to precarious and hybrid forms of employment. If it has already

been true for Southern European countries such as Italy and Spain that informal work makes up a large part

of the total (more than 30 percent), it now also holds forth the countries at the forefront of the neoliberal

reform policies: Britain and the United States. The United Kingdom, which once pioneered the standardization of work, is now pioneering its individualization. Already at the beginning of the 1990s,

nearly 40 per cent of work there did not conform to standard specifications... [thus] both the OECD and the

International Labour Organization report that part-time work has spread rapidly in the 1980s and 1990s in

practically all the early-industrialized countries, and stood at between 30 per cent and 40 per cent of the

total at the beginning of the 1990s.” Ibid., p. 56.

47 See Frade, C. Darmon, I. “New modes of business organization and precarious employment: towards the

recommodification of labour?” Journal of European Social Policy, 15; 107; 2005. 48 Ibid., p. 109.

49 For, as we have pointed out in the beginning, materialistic consumption in the masses is not declining. Therefore, human capital in the labourer, which can all but exclusively contribute to production in an

indirect manner, is still dependent on capital for the paid utilisation of that productive capability. A man

with some knowledge cannot build a factory and employ workers with only that knowledge and no liquid

capital.

Vol. 4 [2007] Brussels School of International Studies 22

process of production reduces the intrinsic value of labour. Secondly, with the

Accelerating Liquidity in the Post-industrial Economy, I have attempted to outline the

atomisation of labour both through the increasing depreciation rate of human capital and

increasing financialisation as an aspect of the post-industrial economy. I will now turn to

briefly outlining the political reflection of these economic realities.

POLITICS AND ATOMISATION

The primary manifestation of the atomisation of labour in the post-industrial

economy, and subsequent break-down of class-based politics, is the transformation of

labour’s self-identification as a class, in competitive opposition to capital, into a self-

identification as individuals relating only to the aggregate economic structure. I will

highlight two general trends in this process — globalisation and the popular reflection of

the assimilation of the individualistic mindset of capital in the labour class.

First, globalisation as a means towards aggregate growth is as old as the works of

Adam Smith. After Smith’s elucidation of absolute advantage, David Ricardo put forth

law of comparative advantage which states that through international deregulation of

trade, differences in specialised technology lead to the specialisation of production, which,

in turn, leads to greater wealth. However, crisis and downturns, due to inherent elements

of the capitalist system, occur at periodic intervals. One of these happened to roughly

coincide with the transition of the developed world into the post-industrial economy — the

1970s. As Wallerstein notes, “the method by which the capitalist system ultimately

resolves its recurrent down-turns is expansion: outward spatially, and internally in terms

of ‘freeing’ the market.”50

Thus, we witnessed the emergence of the era of globalisation —

a concept at its heart nothing more than applying comparative advantage to increase

aggregate capital accumulation. This came through the acceleration of European

integration throughout the 1980s and 1990s, the acceleration of global economic

integration most especially in the 1990s, and the emergence of such institutions as the

Uruguay Round of the GATT treaty — which ended with the creation of the WTO in 1995

— and other agreements such as NAFTA in 1994.51

Secondly, as Azmanova writes:

“The [post-industrial] economy increases the speed of entry and exit between

professional and social groups, thus putting an end to the relative fixity of personal

identity to one occupational/class group within an adult lifetime. What gains maximum relevance for people is their chance (and not existing position) of upward, or risk of

downward, mobility. Hence the increased salience of the risk-opportunity vectors in

politics, which start to exist in parallel with the old capital-labour orientation of left

and right, and often replace them.”52

50 Wallerstein, I “A World System Perspective on the social sciences” British Journal of Sociology, 27, 1976, p. 351.

51 For an extensive history of globalization see Held, McGrew, Goldblatt, Perraton, Global Transformations,

Stanford, Stanford University Press, 1999.

52 Azmanova, A. “Europe’s novel political cultures in the early twenty-first century” Contemporary Politics Vol. 10, No. 2, June, 2004, p. 119-120.

Vol. 4 [2007] Brussels School of International Studies 23

In essence, as each individual becomes a self-perceived capitalist capable of

mobility through individual initiative — aside for those labourers, largely the industrial

labour increasingly marginalised by technological advancement, economic transformation

and global competition, whom are on the risk end of the spectrum — the old class-based

political entities transform and adapt themselves to this new ‘reality.’ Risk is met with re-

education while opportunity is met politically through all that can be done: ensuring

continuing growth. For, failure to expand individually, in an expanding economy, can only

be the fault of the failing individual — the essence of the capitalist mentality. Thus,

former political entities based on the labour constituency as a class, transform into the

mouthpiece of capital while occasionally offering the lip-service of skill upgrading to their

traditional constituency. This phenomenon is exemplified most starkly in the creation of

New Labour in the United Kingdom — a former class-oriented party now with a

programme of increasing human capital, decreasing class-based notions of redistributive

tax and maintaining aggregate growth.53

ANALYTICAL SHORTCOMINGS

The most glaring shortcoming with the above analysis is the fact that it leaves

little room for agency. The second shortcoming, although I aimed only to analyse the

break-down of class-based politics, is the lack of solution to what is obviously presented

as a problem — what ultimately amounts to the destruction of society. As Beck writes,

“Free-market utopianism is a kind of Marxism without Marx... it seeks to realize Marx’s

prognosis of the division and destruction of society, but without any hope of

emancipation through socialism... it thus negatively favours a neo-Marxism of

hopelessness.”54

In witnessing the political situation in the Europe and, more acutely in the Anglo-

countries (excluding the somewhat anomalous Canada), one cannot help but discredit the

agency-based solution to the problem of increased atomisation of society and the

penetration of commodification into the very conditioning and usefulness of thought.

Therefore, the indirect economic determinism of Marxism presents a very powerful tool

for analysis.

However, despite the conspicuous weakness of Inglehart’s post-materialist analysis,

a cursory reading of the history of Die Griinen — the model for many developed

53 For instance a certain passage in the 1997 Manifesto (when Tony Blair and New Labour began to dominate British Politics) reads: “In industrial relations, we make it clear that there will be no return to

flying pickets, secondary action, strikes with no ballots or the trade union law of the 1970s. There will

instead be basic minimum rights for the individual at the workplace, where our aim is partnership not

conflict between employers and employees.” Another reads: “We support a collaborative approach between

researchers and business, spreading the use of new technology and good design, and exploiting our own

inventions to boost business in the UK.” The top three priorities of the Manifesto read: “1. Education will be

our number one priority, and we will increase the share of national income spent on education as we

decrease it on the bills of economic and social failure 2. There will be no increase in the basic or top rates of

income tax 3.We will provide stable economic growth with low inflation, and promote dynamic and competitive business and industry at home and abroad.” (Labour Party (1997) New Labour: Because Britain

Deserves Better, London, Labour Party at http://www.psr.keele.ac.uk/area/uk/man/lab97.htm and also

http://www.labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml)

54 Beck, U. op.cit., p. 119.

Vol. 4 [2007] Brussels School of International Studies 24

countries’ Green parties including the rapidly deteriorating Green Party of the United

States — provides a light of agency. Remarking on their origins, Franklin and

Schoonmaker observe that Die Griinen focused initially on bringing together

disillusioned but true post-materialists and actually challenging the notion of economic

growth.55

While the realo faction eventually took over the party and this `fundi’ challenge

grievously succumbed to capital, an ‘Inglehartian’ group-agent centric approach to

political value transformation can be sympathetically represented by the very fact that

Greens around the world had, at least at one time, challenged that sacred cow of

economic growth. For, the mere refusal of labour to consume beyond material necessity,

to defy the notion of self-actualisation through material means, ends the entire process of

capital accumulation and labour commodification.

On the other hand, some European intellectuals have attempted to locate a new

compromise which will re-embed the market in social relations.56

Azmanova has

attempted to create a policy framework reconceptualisation utilising the notion of the

“transformation in which the left-right alignment along economic policies is being

challenged by the emergence of a new fault-line shaped by the security-risk dilemma of

the neo-liberal knowledge economy.”57

Beck has complementarily suggested that social

relations in essence need to be removed from the association with work and this process

needs to be facilitated by civil society.58

It remains to be seen, however, if this solution,

perhaps like the stopgap welfare state — functional until the process of capital

accumulation initiated its destruction for the sake of continuing the process — will merely

mitigate the effects of labour commodification and liquidation or actually combat the

cause.

CONCLUSION

Atomisation as a political concept, in general terms, represents a state of becoming

isolated and unable to work with fellow individuals for public expression and praxis.

Although I will not argue that individuals are now impotent in their ability to create

groups with expressly political aims, the traditional manifestations of the specifically

class-based interest of labour — redistribution and decommodification — has been all but

destroyed by the increasing reliance on capital for virtually every element of

55 “The Green party would aim to bring together dissatisfied feminists, anxious pacifists, aggressive

democratizers, and concerned ecologists. They all agreed they wanted a party unlike any other, that their

antipathy to hierarchy, bureaucracy, and centralization called for a decentralized party structure attentive to

the grass roots and, finally, the sacred cow of economic growth at any cost needed to be led to slaughter [my emphasis_” Pg. 35 Frankland and Schoonmaker Between Protest and Power: The Green Party in Germany,

Westview Press, 1992

56 Assuming the transition into the post-industrial economy has led to the dis-embedding of the market from

social relations in much the same way as the transition into the industrial economy, as described by Karl

Polanyi in The Great Transformation, a reasonable assertion, then struggling for a method to re-embedded it is a essential goal — aside for the elimination of the market itself.

57 Azmanova, A. “The Mobilisation of the European Left in the Early 21st Century” op. cit., p. 274.

58For instance, Beck states, “` Individualization’... does not mean atomisation, isolation, loneliness, and the

end of any type of society... ` Individualization’ means, first, the disembedding of industrial-society ways of

life and, second, the rembedding of new ones, in which the individuals must produce, stage and cobble

together their biographies themselves.” Beck, U. The Reinvention of Politics, Tr. Ritter, M. Cambridge,

Polity Press, 1997, p. 94-95. See also, Beck, U. op. cit.

Vol. 4 [2007] Brussels School of International Studies 25

human existence, as well as the destructive atomisation brought about by the nature of

work in the post-industrial economy.

The political effects of this economically determined reality are the disappearance

of viable channels of class representation in the public sphere — despite the continuing

existence of class as a social category. The corrosion of the previous channels, most

transparently exemplified by the emergence of New Labour and the New Democrats, in

the UK and USA respectively, has not been replaced by a viable alternative. Therefore,

labour is met with the publicly indisputable irreversibility of globalisation, economic

transformation, and the necessity of adapting to the knowledge economy. Due to this,

every seemingly anti-labour enactment perpetrated by the neo-liberal consensus in both

left and right parties is justified not on its merits, but simply due to this irreversible

motion of the market — as if we were subjected to the laws of the market without any

recourse or escape. This total subjugation of labour to the needs of capital is reflected in

labour’s capital dependency, the vicious cycle of human capital depreciation, and the

structurally enforced self-individuation. This atomisation of labour is not a lack of

political will on labour’s part, but its irreversible dissolution in the face of the totalitarian

laws of the post-industrial economy. Thus, as Hannah Arendt has pointed out about

previous political movements based on abstract laws external to politics:

“Totalitarian lawfulness, defying legality and pretending to establish the direct reign

of justice on earth, executes the law of History or of Nature59 without translating it

into the standards of right and wrong for individual behaviour. It applies the law

directly to mankind without bothering with the behaviour of men. The law... if

properly executed, is expected to produce mankind as its end product; and this

expectation lies behind the claim to global rule of all totalitarian governments.”60

59 Here we must substitute ‘the Market’ in the neo-liberal fashion.

60 Arendt, H. op. cit., p. 160 — in other words, the end product of mankind being every individual a

capitalist and the elimination of labour.

Vol. 4 [2007] Brussels School of International Studies 26

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Vol. 4 [2007] Brussels School of International Studies 29

Appendix A To illustrate the transformation of social relations, and therefore politics, I have

provided a graphical representation of types of employment below61

:

In terms of this highly elementary model, the simple majority of the labour force

was employed in the production of agriculture and therefore power-relations and thus

politics were in terms of the possession and appropriation of surplus value from land.

Hence, especially in Europe, the political class was lead by those who controlled the land.

Namely, the domestic aristocracy ruled under a monarch whom, in turn, competed with

other monarchs for the control of land largely by way of war and marriage.

In the industrial era, when no true majority of labourers were employed in any

given sector, however, the plurality were engaged in industrial production62

, politics were

ideological in character and primarily reducible to class relations between labour and

capital.

61This model is highly indebted to the work of Daniel Bell in The Coming of the Post-industrial Economy

and through him the works of Robert L. Kahn. 62 Such a phenomenon suggests a solution to why the Marxist project of Socialist revolution failed — the

political ‘culture’ of antagonistic classes employed either as capitalists or labourers in the process of

industrial production was never sufficient enough to dominate the political landscape. Namely, there was

never a simple majority of industrial labourers to impose the socialist state on the rest of society — at least

through democratic means.

Vol. 4 [2007] Brussels School of International Studies 30

Finally, in the post-industrial economy, knowledge becomes the primary

component of wealth production, and thus the atomisation of individual economic

agents has broken down the class-based compromise of the welfare state - as is the

thesis of this article.

Labour by Sector in France 1845-200063

Choosing the French experience as a suitable test for the model, we can see

how the data somewhat corresponds to the model. If France, according to this

model, entered the Industrial Era in roughly 1866 when Agricultural Sector

employment plunged below 50%, then the institution of the liberal/industrial

instead of monarchical state should have come about shortly thereafter - which of

course, excluding the instable First and Second Republics64

- did come about with

the abdication of Napoleon III in 1870 and the establishment of the Third Republic.

Although it appears a plurality of industrial employment was never actually

achieved in France, as Caron points out, “the transformations of the French were

less

63 Source: Composed Table:

1845 1866 1896 1906 1922 1938 1954 1970 1985 2000

Ag 51.90 49.80 44.80 42.70 34.82 26.93 20.22 13.50 8.75 4.00

Ind 26.00 27.90 28.60 28.20 32.02 35.83 37.52 39.20 31.85 24.50

Serv 22.20 22.30 26.60 28.10 32.67 37.23 42.22 47.20 59.35 71.50

Although for instance Caron recognizes many issues with the creation of statistics such as sectoral

employment figures - especially from 19th century records, nevertheless, these rough estimations are

an attempt to illustrate with real data the labour market shift defining the economic eras. Years

1845, 1866, 1896, 1906 are taken from Caron, François, An Economic History of Modern France, Tr. Barbara Bray, 1979, New York, Columbia University Press, p. 33. Figures from 1938 are taken

from Peterson, W. “National Product and Structural Change in the French Economy” American

Journal of Economics and Sociology, 1957; and the statistics from 1970 on are taken from OECD

Historical Statistics 1970-2000, OECD 2002; Each of the italicized statistic is linearly derived from

the previous and following figure (as its midpoint) in order to create uniformity in the temporal

increments. 64 Considering the model considers the primary foundation of power in the pre-industrial era as land,

and the subsequently frequent competition to control it, the often violent exogenous influences of

competing monarchical states surely prevented the pre-mature rise of a stable republic until

industrial transformation in those competitors - most especially Britain and Germany - themselves

had entered the industrial era.

Vol. 4 [2007] Brussels School of International Studies 31

striking than those in other countries on the way to industrialization. In the working

population, the percentage decline in the agricultural sector brought more gain to the

tertiary sector than to the industrial sector.”65

However, when applying J. Marcewski’s

1963 statistical analysis, Caron points out, “The share of the industrial sector would thus

go from two-fifths to three fifths [as a proportion of national output rather than

percentage of employment from 1835-1913 and therefore]... these figures clarify, even if

they are doubtless a trifle exaggerated, the propulsive role played by industry in the

growth of the per capital national product.”66

As the Industrial Era, with all its ideological

competition, industrial scale warfare, rapid expansion of capital formation, and

considerable class-based political struggles, thus commenced, the various forms of

governance competed until the class-compromise of the welfare state, enshrined in the

1958 institution of the Fifth Republic, came about. Thus roughly 90 years of

transformation instead of less than 10.

However, following the notion that the institution of a new French Republic

corresponds to the structural change of the domestic economy, the model breaks down

with the advent of the post-industrial economy. If history is a guide, the 1970s evolution

of the French economy into the post-industrial era should have resulted in the creation of a

Sixth French Republic either in the early-1980s — if we consider the Third Republic as

representative of the Industrial Age — or will happen around 2070 — if we only consider

the Fifth Republic as a proper representative of the political relations of an industrial

economy.

65 Caron, Francois, An Economic History of Modern France, Tr. Barbara Bray, 1979, New York, Columbia

University Press, p. 32-33.

66 Ibid.

Vol. 4 [2007] Brussels School of International Studies 32

Appendix B US Trends in Household Expenditure

67

As the above table has not been adjusted for inflation, a simple utilization of the

CPI inflation calculator from the US Bureau of Labour Statistics68

yields the following

numbers for 1992 in 2006 dollars69

:

NAICS Code

1992 Expenditures in 2006 dollars

441 $2,362.00

442 $296.00

443 241.00

444 $740.00

67 Source: Table 10, Annual Benchmark Report for Retail Trade and Food Services: January 1992 Through

February 2006 — A Detailed Summary of Retail Sales, Purchases, Accounts Receivable, Inventories and

Food Service Sales Issued March 2006, US Census Bureau; US Department of Commerce

httn://www.census.gov/nrod/2006nubs/br05-a.ndf, p. 56.

68 htt://www.bls.gov/bls/inflation.htm

69 Personal Calculation.

Vol. 4 [2007] Brussels School of International Studies 33

44 5 $2092.00

446 $ 50 5.00 447 $882.00

448 $678.00

4 51 $277.00

4 52 $1,396.00 4 53 $314.00 4 54 $443.00 722 $1,147.00

The bolded and italicised figures are the only categories where relative spending

has declined in the period — Food and Beverage Stores (but not food services such as

restaurants), clothing stores and sporting goods stores. This of course assumes CPI

inflation is standard across all products which, especially in the case of clothing (after

textile manufacturing was almost completely outsourced, most especially to East Asia,

during this period), is questionable whether there was CPI inflation at all. One could also

account for the relative decline in sporting goods purchases by the nearly doubling of

consumption in ‘General Merchandise Stores.’ This assumedly is a store such as Wal-

Mart which burst into prominence during this period and happens to sell sporting goods.

Therefore, Inglehart’s ‘Maslowesque’ thesis applies only to ‘Food and Beverage Stores’

(assuming the standard inflation rate) which is a rather obvious observation — despite the

apparent explosion of obesity in the United States also during this period — one can only

eat so much.

Vol. 4 [2007] Brussels Journal of International Studies 34

The Rise of Internet: Analysis of its Impact on States as International

Actors

Audrey Betyl

Through the emergence of new communication technologies, the Peace of Westphalia

and its legacy, the modern international system composed of sovereign states each with

exclusive authority within its own geographic boundaries, appear to be heading towards

an end. To understand how the Internet influences/modifies the role of states, perceived

in the realist and liberal traditions as the “main units of analysis in international

relations”, this article draws from neo-Marxist theories and Krasner’s four patterns of

sovereignty to shed light on the impact of the Internet on states as actors in world

politics.

INRODUCTION

The world has entered an “era of interdependence” in which economics,

communications and human ambitions are perceived to converge.2 The Modernist school’s

assumption of a “global village”, a world without boundaries and the demise of the

supremacy of the purely territorial state, seems to have become a reality of international

relations.3 Expressed differently, the Peace of Westphalia and its legacy, the modern

international system composed of “sovereign states each with exclusive authority within its

own geographic boundaries”, appear to be heading towards an end.4 For instance, on

September 30, 2007, approximately 1,244,449,601 users were connected to the Internet

worldwide, which means that nearly 18,9% of the world population had access to an

extraordinarily wide range of information. Taking into account that between 2000 and

2007 internet usage has grown by 244.7%, one can assume that online interconnectedness

is likely to intensify in the future.5 In this way, the Internet constitutes both as an indicator

and as a factor of globalisation.6 This phenomenon defined as “the process whereby social

transactions of all kinds increasingly take place without account for national or state

boundaries”.7 Amongst the common changes associated with this

1 Audrey Baty holds an undergraduate degree from Laval University and Passau University in International

Studies and Modern Languages, with a concentration in Politics. She also completed a MA in International

Conflict Analysis at the Brussels School of International Studies.

2 Keohane, R. O. & J. S. Nye; Power and Interdependence, New York: Harper Collins, 1989, p. 3.

3 Ibid., p. 3. 4 Krasner, S.D. “Rethinking the Sovereign State Model”, in M. Cox, T. Dunner & K, Booth (eds.), Empires,

Systems and States: Great Transformations in International Politics, Cambridge: Cambridge Press

University, 2001, p. 17. 5 “Internet Usage Statistics: The Internet Big Picture”, Internet World Stats (December 2007), available:

http://www.internetworldstats.com/stats.htm

6 Engel, C. “The Internet and the Nation State”, in C. Engel & K.H. Keller (eds.), Understanding the Impact

of Global Networks on Local, Social and Cultural Values, Baden-Baden: Nomos, 2000, p. 213.

7 Hobden, S. & R. W. Jones, “Marxists Theories of International Relations”, in J. Baylis, S. Smith & P.

Owens (eds.), Oxford: Oxford University Press, 2005, p. 245.

Vol. 4 [2007] Brussels Journal of International Studies 35

globalisation are the increasing relations between national economies as well as the

communication revolution, which facilitates the emergence of a global consciousness.

Considering the above, one can ask to what extent the Internet influences or

modifies the role of states, perceived within the realist and liberal traditions as the “main

units of analysis in international relations”.8 In order to answer this question, this article

will argue that, contrary to widespread beliefs, the impact of the Internet on states as

international actors involves both positive and negative aspects. The argumentation will

be divided into two main sections. First, the article will analyse the repercussions of the

Internet on the sovereignty of the state. The analysis will be based on Krasner’s four

patterns of sovereignty: the international legal sovereignty, the Westphalian sovereignty,

the domestic sovereignty and the interdependence sovereignty.9 This first section will

examine how the emergence of the Internet represents both a tool for the enforcement of

the sovereignty, as well as a threat to it. Secondly, the article will study, through a neo-

Gramscian approach, how the Internet (a priori an instrument of the hegemon) can

decelop into an independent non-state actor in order to launch counter-hegemonic

movements within the areana of international politics.

INTERNET VS. STATE’S SOVEREIGNTY: SIMULTANEOUS EROSION AND

ENFORCEMENT

In his work Turbulence in World Politics James Rosenau stipulates that “the basic

nature of the international system is changing”.10

According to the author, “the scope of

activities over which states can effectively exercise control is declining”.11

Knowing that

sovereignty is considered to be the “distinguishing feature of the states”,12

this main

section will examine one of the effects of the Internet on the state as an international

actor; the simultaneous erosion and enforcement of their sovereignty. Considering the

length of this article, the analysis will focus on 2 of the 4 models of sovereignty detailed

by Krasner in his work Sovereignty Organized Hypocrisy: the international legal

sovereignty and the interdependence sovereignty.

Krasner’s Analytical Kinds of Sovereignty: Analysis of Internet’s Impact

This first sub-section will demonstrate, through the concepts of international legal

sovereignty and interdependence sovereignty, how the impact of the Internet on the

state’s sovereignty can be both positive and negative.

Internet vs. Enforcement of International Legal Sovereignty

8 Walt, S. M. “International Relations: One World, Many Theories”, Foreign Policy, Spring 1998, No. 110

(1998), p. 38. 9 For more information, see Krasner, S. D.; Sovereignty: Organized Hypocrisy, Princeton, N. J.: Princeton University Press, 1999, p. 3-26.

10 Rosenau, J. N.; Turbulence in World Politics: A Theory of Change and Continuity, Princeton, N. J.:

Princeton University Press, 1990, p. 13.

11 Ibid., p. 13. 12 Brown, C. & K. Ainley; Understanding International Relations, Basingstoke: Palgrave Macmillan, 2005, p. 3.

Vol. 4 [2007] Brussels Journal of International Studies 36

Sovereignty may initially refer to “international legal sovereignty”. This analytical

concept refers to the practices linked with “mutual recognition, usually between territorial

entities that have formal juridical independence”.13

While this type of sovereignty is

mainly concerned about matters of authority14

and legitimacy, issues of control are not

central.15

The following lines will argue that the Internet has a positive impact on states’

sovereignty, since the World Wide Web (WWW) may serve as an efficient tool for states

to receive and promote an international recognition and, thus, facilitating the process

toward their international legal sovereignty.

As examined in Brunn and Cottle’s article Small States and Cyberboosterism, the

creation and rapid expansion of the World Wide Web provides states with the

opportunity of introducing themselves to the entire world.16

For instance, in addition to

reaching the “global club” of sovereign nations, the Internet extends the audience

beyond them and empowers the states in equally reaching individuals, world capitals,

global and regional organizations as well as multinational corporations.17

Besides being

a useful tool for individual countries to increase and strengthen international recognition

through self-promotion on the international scene, it is convenient to add that the

Internet also provides States with the ability to decide how they want to be recognised.

Brunn and Cottle’s argue that sovereign states can for example manipulate the

information that is available on the web in order to “construct” their desired identities. In

fact, the web constitutes a space where states can decide who and what they would like

to present to the rest of the world. For instance, does a state with several cultures wish to

shed light on its multicultural character and its diversity, “(...) or [expose] only (...) a

small vested elite, recent colonizers, or (...) the dominant majority?”.18

Also, does a state

wish to present itself as a growing regional or global political power? Ultimately, the

Internet allows states to situate themselves “where” they want to be seen on the globe,

since they can use the information to the extent that they do not seem peripheral and

marginalized anymore.19

To conclude, regarding the international legal sovereignty, one can affirm that the

Internet has a positive impact on states’ sovereignty, given that it constitutes a strategic

tool to display their “constructed identities” to global audiences, a process which pertains

to the consolidation of their legitimacy as well as the achievement of international

recognition.

13 Krasner, S. D.; Sovereignty: Organized Hypocrisy, Princeton, N. J.: Princeton University Press, 1999, p. 3.

14 “Authority involves a mutually recognized right for an actor to engage in specific kinds of activities”.

Ibid., p. 10.

15 “Control can be achieved simply through the use of brute force with no mutual recognition of authority at all.” Ibid., p. 4.

16 Brunn, S. D. & C. D. Cottle, “Small States and Cyberboosterism”, Geographical Review, Vol. 87, No. 2 (1997), p. 240.

17 Ibid., p. 240.

18 Ibid., p. 242. 19 Ibid., p. 242.

Vol. 4 [2007] Brussels Journal of International Studies 37

Internet vs. Erosion ofInterdependence Sovereignty

An additional type of sovereignty, the interdependence sovereignty, refers to the

capacity of “public authorities to regulate the flow of information, ideas, goods, people,

pollutants, or capital across the borders of their state”.20

While this model of sovereignty is

not concerned with questions of authority, control constitutes a key element. The

following chapter will argue that the Internet challenges, contrary to the previous case, the

interdependence sovereignty. In order to make such an argument the analysis will focus on

three areas that are influenced by the emergence of the Internet: the flow of information,

ideas and capital across national borders.

In the past, even without the Internet, countries have never enjoyed absolute

control on their internal and external flow of information. Indeed, people have been

crossing bordelines through a variety of community tools: telephones, direct-transmission

satellites and even propaganda distribute in the shape of flyers by aircraft.21

However, with

the emergence of the World Wide Web, the spread of information across borders has

become easier than ever. In fact, “the idea of a state’s sovereignty on information no

longer makes much sense”.22

Besides of its completely international infrastructure, which

transcends national frontiers, the impact of the Internet on the flow of information has

been further increased with the rise of satellite transmission. This new way of diffusion

constitutes firstly, a real challenge for the states struggling to control the flow of

information within their borders23

and secondly, provides users with information even in

countries that have completely isolated themselves from the global flow of information.24

Among all sovereign states, authoritarian regimes are especially aware that the Internet

can destabilize their internal order and act as an accelerator of the modernisation of their

society by challenging their capacity to control the information flow across their borders

and thus, eroding their interdependence sovereignty.25

Secondly and as mentioned above, the Internet poses an obstacle in the

management of the flow of ideas, values and capital. For instance, if one takes into

consideration the “uncontrolled” diffusion of information that it provides, it is reasonable

to think that the web also constitutes a virtual space to spread values and maybe obtain a

global consent on principles26

and norms27

. This observation has triggered among social

scientists one vital question that has not been answered so far. To what extent can the

United States manipulate and use the Internet as a vehicle to strengthen the “global

20 Krasner, S. D.; Sovereignty: Organized Hypocrisy, Princeton, N. J.: Princeton University Press, 1999, p.

4.

21 Engel, C. “The Internet and the Nation State”, in C. Engel & K.H. Keller (eds.), Understanding the Impact of Global Networks on Local, Social and Cultural Values, Baden-Baden: Nomos, 2000, p. 244.

22 Ibid., p. 244. 23 China and Singapore belong to this group of states. Ibid., p. 220.

24 This is the case, among others, of North Korea and Myanmar. Ibid., p. 219.

25 Ibid., p. 249. 26 According to Krasner, principles are defined as “beliefs of fact, causation and rectitude”. Krasner, S. D. “Structural Causes and Regime Consequences. Regimes as Intervening Variables”, in S. D. Krasner (ed.), International Regimes, London: Cornell University Press, 1983, p. 2. 27 Norms are defined as “standards of behaviour defined in terms of rights and obligations”. Ibid., p. 2.

Vol. 4 [2007] Brussels Journal of International Studies 38

monoculture of English” and spread values of the “American Way of Life”?28

In the same

way, as it does break down the state’s borders when one speaks of free flow of

information, the Internet challenges the state authority in monitoring the flow of ideas and

values and hence, violates again the interdependence sovereignty.

Thirdly, vis-à-vis the control on capital across the national borders, the World

Wide Web embodies a further challenge to this specific kind of sovereignty. For instance,

the Internet eases direct foreign investments. Indeed, people wishing to make an

international investment no longer have to deal with the state’s authorities and can avoid

the state’s control since they do not have to limit themselves to portfolio investments

anymore.29

In short, because of the facilities provided by the Internet, the states’ control

regarding the flow of capital across their border is directly undermined. Thus, its

interdependence sovereignty has been violated once more.

In conclusion, it has been demonstrated that the Internet is a strategic tool in

disseminating information, ideas and values, as well as capital without having to cope

with the national borders and state control. Within this previous chapter one could find

that the Internet poses a threat to the interdependence sovereignty of a country, since it

facilitates its erosion. This idea has been clearly expressed by Post who states that “events

in cyberspace [...] do not cross geographical borders [...], they ignore the existence of

borders altogether”.30

To conclude, this first sub-section has argued that the World Wide Web

simultaneously has positive and negative repercussions on fundamental features of the

state as an international actor; its sovereignty. While the Internet can be instrumentalised

by states willing to consolidate and promote their recognition on the international scene, it

involves also a serious breach to sovereignty. It makes it much more difficult for

countries to regulate and control the transactions across their borders and ultimately

within their sovereign territory. In other words, as the Internet is useful in achieving

international legal sovereignty, it entails at the same time concrete risks for the

interdependence sovereignty. The following section will take a deeper look into a second

impact of the Internet on states: their loss of power as the sole international actor.

INTERNET VS. STATE AS INTERNATIONAL ACTOR: NEO-GRAMSCIAN

ANALYSIS

The previous section has argued that the Internet can, both, cause the erosion of a

state’s sovereignty and at the same time strengthen a state’s sovereignty. The following

section will analyse a second area in which the role of the state has been modified since

the emergence of the Internet: the loss of status as sole international actor through the

creation of new elements such as civil society groups. In order to examine how the World

28 Engel, C. “The Internet and the Nation State”, in C. Engel & K.H. Keller (eds.), Understanding the Impact of Global Networks on Local, Social and Cultural Values, Baden-Baden: Nomos, 2000, p. 246.

29 Ibid., p. 240. 30 Post, D. G., “Governing Cyberspace”, Wayne Law Review, Vol. 43 (1996), p. 155.

Vol. 4 [2007] Brussels Journal of International Studies 39

Wide Web invalidates a state-centric approach of international politics,31

this analysis will

be based on Gramsci’s legacy of hegemony and counter-hegemony. This article will first

analyse how the Internet constitutes a tool for the hegemon, here referred to as the

dominant western capitalist state, in order to consolidate and protect cultural hegemony as

well as to increase power. Then, it will be examined how the Web can be used by non-

state actors in order to undermine the prevailing hegemony and launch a counter-

hegemonic struggle, thus the emergence of new influential actors within international

relations. Finally, critical theory’s concept of emancipation, based on communication and

dialogue, will be used to make a critique of the neo-Gramscian analysis, since the former

approach has equal explanatory power in terms of the Internet.

Internet: Tool of the Western Hegemonic States & Source of Power

This section will examine how the Internet can be used as a strategic tool and

source of power for dominant global state powers hoping to strengthen their hegemony.

Recalling that this dissertation aims to consider the impact of the Internet on the state as

the main international actor, Cox’s (neo) version of Gramsci’s theory will be used since it

refers to the international level, instead of the domestic one.

Like in the realist and liberal traditions, the Gramscian paradigm affirms that states

are the basic entities of global political dynamics, the “main unit of analysis in

international relations”.32

For the Gramscian theorists however, world order is not seen as

imposed by a “predominantly influential single state”, but rather a “transnational alliance

of elites”.33

In the same way, today’s world hegemony, embodied by the “Western

collective hegemon”,34

approximates the notion of Gramsci’s “historic bloc”.35

According

to the Italian theorist, a historic bloc is formed by the “mutually reinforcing and reciprocal

relationships between the socio-economic relations (base) and the political and cultural

practices (super-structure)”.36

The interaction between these two elements is fundamental

because it underpins a given order. When shifts occur in world order or in international

power relations, this means therefore that a fundamental change has taken place within the

social relations.37

While the historic bloc is seen, at the national level, to produce and

reproduce the values of the ruling class, at the international level, it functions as a network,

composed of international institutions, supporting the interests of

31 State —centric view of the international relations focus on the states as the “primary units of international-political systems”. Waltz, K. N; Theory of International Politics, London: Addison-Wesley

Pub., 1979, p. 93.

32 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996, p. 134.

33 Puchala, D. J., “World Hegemony and the United Nations”, International Studies Review, Vol. 7 (2005), p. 576.

34 Puchala argues that world hegemony is within the hands of the “West”, defined as a multinational entity formed of seven main states: United States, United Kingdom, Japan, Italy, Germany, France and Canada.

Ibid., p. 578.

35 Ibid., p. 577. 36 Hobden, S. & R. W. Jones, “Marxists Theories of International Relations”, in J. Baylis, S. Smith & P.

Owens (eds.), Oxford: Oxford University Press, 2005, p. 236.

37 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996,

p. 133.

Vol. 4 [2007] Brussels Journal of International Studies 40

the “liberal world economy”, hence the capitalist values of the Western hegemon, to the

extent that these become perceived as legitimate through the world.38

Now, by applying these previous notions of the historic bloc and hegemony to

the case of the Internet, one can argue that the dominant capitalist states may use the

web to strengthen the impact of the historic bloc which supports and reproduces their

system of values. Firstly, an analysis of the statistics on the use of the Internet sheds

light on how the English and Western World remain dominant in the cyberspace. For

instance, in 2007, English was still the main language used with more than 377 millions

users. In addition, the United States of America was the country with the greatest

number of Internet users with its 211 million users, compared to 162 million in China,

closely followed by Japan and Germany.39

Taking into account this data, it is legitimate

to state that the information shared on the World Wide Web mainly vehicles western

(neo-liberal) values. Combined with the fact that all UN speciali2ed agencies are

Northern or Western creations, as well as the international economic institutions ( IMF,

WTO and World Bank),40

one can argue that the Internet is a supplementary instrument

in consolidating the current prevailing neo-liberal system of values, hence a modern

tool of the capitalist states.

In addition to providing the Western states with a vehicle to widespread their

values and thus, strengthening their hegemony, the Internet has a second repercussion on

the state as international actor; since the WWW can be seen as a source of power, such as

defined in the Gramscian theory. Indeed, if one considers that, like Machiavelli, Gramsci

described power through the metaphor of a “centaur: half man, half beast, a necessary

combination of consent and coercion”,41

the Internet can be viewed as a platform on which

the dominant capitalist states strengthen their position by consolidating the consensual

aspect of their power. By globally spreading their neo-liberal ideology on the Internet,

there is a possibility that it becomes so “familiar” that most societies adopt capitalist

values as a commonsense and stop questioning their legitimacy.

As suggested by Owens and Nye, IT and the Internet serve what they see as

“America’s greatest power, its power over content, its “soft power,” and the leverage [...]

to get other groups to want what Americans want”.42

This Gramscian analysis provides

therefore the Internet with a significant role in international relations; since the theory

stipulates that if hegemony wants to prevail, consent must remain in the forefront, while

38 Ibid., p.138. 39 “Internet Usage Statistics: The Internet Big Picture”, Internet World Stats (December 2007), available: http://www.internetworldstats.com/stats.htm

40 Puchala, D. J., “World Hegemony and the United Nations”, International Studies Review, Vol. 7 (2005),

p. 571.

41 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996,

p. 127.

42 Wilson III, E. J.; Globalization, Information, Technology, and Conflict in the Second and Third Worlds:

A Critical Review of the Literature, New York: Rockefeller Brothers Fund, 1998, p.27. For further

information see Owens, W. A. & J. S. Nye “American Information Edge”, Vol. 10, No. 2 (1996)

Vol. 4 [2007] Brussels Journal of International Studies 41

coercive power is to be used only in marginal or isolated cases.43

Taking into account that

hegemony, which is based essentially on consent, is fundamental to maintaining stability

in international relations,44

one can thus affirm that in today’s world the Internet is

strategic for international stability.

As argued above, the web can be seen as a source of power for the states in

international relations because it influences the consent of the civil society, a pillar of

power in the Gramscian approach. It is however convenient to notice that for Gramsci and

Foucault, knowledge constitutes a second feature that influences directly the power. In

fact, for both theorists power and knowledge are perceived to be “inseparable”.45

Such an

interpretation of power has a further implication for the Internet and its impact on the

individual state and global politics, because by its primary nature the Internet can be

viewed as a modern and global instrument of knowledge. For instance, while electronic

surveillance and monitoring constitute as one of the major uses of the web, information

sharing occupies an important place in the activities that take place in the Internet.46

Hence, the Internet provides the capitalist states with a second source of power: an

accessible and cheap source of knowledge.

Several non-capitalist countries are aware of this reality and fear the Net because

they understand the implications of this interconnectedness between power and

knowledge. They are fully aware of the Internet’s emancipatory capabilities and they

know the extent to which the Net promotes western values; since it is predominantly used

by the Occident.47

In respect to the Gramscian approach thus, the Internet represents a

strategic tool for the world dominant states because it is a source of power in two ways:

while it is useful in establishing and consolidating the consent of a society towards their

set of values, the Internet is also a global source of knowledge and therefore may lead to

greater emancipation the “western way”.

To conclude, this sub-section has argued that, according to a neo-Gramscian point

of view, the World Wide Web is used by the ruling “stratum” of international politics, the

dominant western states, in order to spread their ideology of neo-liberalism on a global

scale. Linked both to consent and knowledge, the Net constitutes also an instrument of

power for the states in international relations. While this sub-section has analysed how the

Internet is instrumentalised by the western states to endure their world hegemony, the up-

coming sub-section will shed light on how non-state actors also use the Internet to launch

counterhegemonic movements at the international level.

Internet vs. Non-State International Actors: Tool of Counter-Hegemonic Struggles

43 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996,

p. 127. 44 Hobden, S. & R. W. Jones, “Marxists Theories of International Relations”, in J. Baylis, S. Smith & P.

Owens (eds.), Oxford: Oxford University Press, 2005, p. 237.

45 Warf, B. & J. Grimes , “Counterhegemonic Discourses and the Internet”, Geographical Review, Vol. 87, No. 2 (1997), p. 262.

46 Ibid., p. 262.

47 Ibid., p. 262.

Vol. 4 [2007] Brussels Journal of International Studies 42

As it has been examined in the previous sub-section, the Internet constitutes a

means for the dominant capitalist states in consolidating their hegemonic position and

thus promoting the international stability. Being one of the most modern manifestations

of Western power, Huntington defines the Internet and the Information Technologies (

IT) as “a major source of the resentment and hostility of non-Western peoples against the

West”.48

Until now, the argumentation has sustained that the states were still to be taken

as the main actors in international relations. Although the image of a collective hegemon

has been used, states still remain the constitutive elements of the collective and

transnational ruling elite. However, this sub-section will analyse how the Internet can also

provide non-state actors with the possibility to be heard in the arena of international

politics. To do so, Gramsci’s concepts of war of position and counterhegemony49

will be

used to explain the role of the Internet in the rise of new international actors.

In the Gramscian tradition, the military analogies of “war of position” and “war

of movement” characterise the type of counter hegemonic strategy used by a dominated

class or group willing to establish a new order. While a war of movement refers to an

armed revolution, a war of position consists in building up “the strength of the social

foundations of a new society” through propaganda and persuasion.50

This latter type of

emancipation process can be useful in understanding the role that the Internet can display

in international relations in providing non-state actors with possibilities to create an

alternative state and society that will challenge the established hegemony of the

dominant capitalist states.

Indeed, contrary to the widespread belief that the cyberspace is the “uncontested

domain of rugged individualists”, the Internet is profoundly rooted in society and can be

instrumentalised by the powerless and “marginalized” in order to achieve specific “anti-

establishment” goals.51

The virtual counterhegemonic movement, in the same way as the

Gramscian war of position, rises from groups or individuals that oppose the adoption of

the existing dominant ideologies. Among the progressive users of the Internet, subgroups

of national society and non-state actors like human and civil rights advocates, religious

movements, anarchists and supporters of ethnic or national identities (i.e. Irish

Republican Army and ETA) use the Internet to promote their own alternative agendas and

political interests.52

Thanks to a simple access to e-mail, chat rooms and forums, the

Internet gives them opportunity to communicate and exchange their views with “like-

48 Huntington, S. P.; The Clash of Civilizations and the Remaking of World Order, New York: Simon & Schuster, 1996, p. 59.

49 Counterhegemony refers “to an alternate normative interpretation of the functioning of social, economic

and political institutions”. Hobden, S. & R. W. Jones, “Marxists Theories of International Relations”, in J.

Baylis, S. Smith & P. Owens (eds.), Oxford: Oxford University Press, 2005, p. 236.

50 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996, p. 128.

51 Warf, B. & J. Grimes , “Counterhegemonic Discourses and the Internet”, Geographical Review, Vol. 87, No. 2 (1997), p. 259.

52 Ibid., p. 263.

Vol. 4 [2007] Brussels Journal of International Studies 43

minded or sympathetic audiences”, while publicizing struggles that are generally

overlooked again and again by the Media and thus the rest of the world.53

A further example of non-state actors using the Internet to challenge the Western

hegemony is the jihadist movement.54

Since 2000, the number of jihadist websites has

increased from less than 20 to approximately 4,000.55

Looking for a sense of community,

the majority of jihadis feel marginalized and deprived. When these people meet on jihadi

websites they often become part of the propaganda to counter what they see as a “global

evil”,56

the “satanic westerners”.57

The emergence of this “decentralized global jihadi

community” willing to fight against the “international ruling evil” poses a new threat for

the international security and can be seen,58

to some extent, as a Gramscian war of position

in order to destabilise what these groups perceive as the cultural predominance of the

“sweet, lethal poison of the Westoxication”.59

This jihadi counterhegemonic movement

attempts by using the Internet to persuade or make propaganda to increase the number of

people supporting their views on the “West hegemonic order”. From a neo-Gramscian

point of view, if these non-state actors, who develop inside the super-structure

characterised by the domination of the coercive capitalists and their neo-liberal ideology,

manage to achieve a point where this new alternative structure is strong enough, a

revolution will occur and a new historic bloc will develop.60

To conclude, this second sub-section has analysed, through Gramsci’s concepts of

war of position and counter-hegemonic struggle, how the Internet provides non-state

actors with a possibility to be heard and influence world politics. The emergence of the

Internet modifies thus, according to this previous analysis, the role of states in

international relations since these cannot be seen as the only significant actors. In order to

avoid a narrow analysis of the Internet and its impact in international relations, the

following sub-section will make a critique of the use of Gramsci’s concept of

emancipation - through war of position - by analysing how the Critical Theory’s approach

of emancipation is equally appropriate in regarding the role of the Internet.

Internet vs. Emancipation: Critique through Critical Theory’s Concept of Radical

Democracy

53 Warf, B. & J. Grimes , “Counterhegemonic Discourses and the Internet”, Geographical Review, Vol. 87, No. 2 (1997), p. 260.

54 Refers to “Islamic Holy War movement”. Appleby, R. S.; The Ambivalence of the Sacred: Religion, Violence, and Reconciliation, Oxford: Rowman & Littlefield, 2000, p. 92. 55 Atran, S. & J. Stern, “Small Groups find Fatal Purpose through the Web”, Nature, Vol. 437, No. 7059 (2005), p. 620.

56 Ibid., p. 620. 57 Appleby, R. S.; The Ambivalence of the Sacred: Religion, Violence, and Reconciliation, Oxford:

Rowman & Littlefield, 2000, p. 92.

58 Atran, S. & J. Stern, “Small Groups find Fatal Purpose through the Web”, Nature, Vol. 437, No. 7059 (2005), p. 620.

59 Appleby, R. S.; The Ambivalence of the Sacred: Religion, Violence, and Reconciliation, Oxford:

Rowman & Littlefield, 2000, p. 92.

60 Cox, R. W. & T. J. Sinclair; Approaches to World Order, Cambridge: Cambridge University Press, 1996, p. 131.

Vol. 4 [2007] Brussels Journal of International Studies 44

If Gramsci’s concept of emancipation is relevant in understanding the

repercussions of the Internet on a certain class or group of a civil society, Habermas’s

vision of emancipation, with communication in its central place, provides an alternative

approach to this analysis. A closer look will help one to see how the Internet can be a tool

of emancipation but from a Critical Theory point of view.

Having in mind that critical theorists’ “most important contributions [...] (are) their

explorations of the meaning of emancipation”, the following analysis will be based on

Habermas’ approach of emancipation, which stresses the importance of dialogue and

communication in the emancipation process.61

Basically, this critical theorist argues that

the way to achieve emancipation is through radical democracy. This latter concept consists

of “a system in which the widest possible participation is encouraged (...)”.62

According to

Habermas, democracy has to be guaranteed and therefore, social, cultural and economic

barriers to participation have to be surmounted. Besides, participation must not be

confined within the borders of a specific sovereign state, because obligations and rights

are viewed as universal and expanding beyond the borders.63

Taking into account this approach of emancipation, one can affirm that, through

the perspective of critical theory, the Internet constitutes a tool for emancipation since it

facilitates the emergence of radical democracy, such as defined previously. For instance,

if one takes the case of the developing countries, where corruption and the manipulation

of information are two known plagues of the society, some defend the idea that the

Information Revolution and the Internet are determining in opening the processes

occurring within the governmental apparatus to the citizenry and to some extent,

international politics. In other words, in these developing states, but also in developed

countries, the Internet facilitates the emergence of direct democratic processes because it

reduces the interference of the state and avoids its entire control on the information.64

In

the same way, similar to the analysis of Habermas, “the development of capitalism

produced a new public engaged in political discussion through access to relevant

information”.65

The following quotation summarises the link between radical democracy

and the Internet, and the way the World Wide Web eases the emergence of a bottom-up

democratic expression:

Where our existing information systems seek to choke the flow of information through

[...] costs and restrictions, the new digital world celebrates the right of the individual

61 While classical Marxists “locate the potential of emancipation in [...] the realm of production”, Habermas

believes that a better society depends on “the realm of communication”. Hobden, S. & R. W. Jones,

“Marxists Theories of International Relations”, in J. Baylis, S. Smith & P. Owens (eds.), Oxford: Oxford

University Press, 2005, p. 241.

62 Ibid., p. 241. 63 Ibid., p. 241. 64 Wilson III, E. J.; Globalization, Information, Technology, and Conflict in the Second and Third Worlds: A Critical Review of the Literature, New York: Rockefeller Brothers Fund, 1998, p.27. For further information see Owens, W. A. & J. S. Nye “American Information Edge”, Vol. 10, No. 2 (1996), p. 10.

65 Cox, G., “The Digital Crowd: Some Questions on Globalization and Agency”, Design Issues, Vol. 15, No. 1 (1999), p.20 For further information see Habermas, J.; The Structural Transformation of the Public

Sphere: An Inquiry into a Category of Bourgeois Society [Strukturwandel der Offentlicheit] , Cambridge:

Polity, 1989.

Vol. 4 [2007] Brussels Journal of International Studies 45

to speak and be heard — one of the cornerstones behind... democracy. [...] this online culture offers the means for individuals to have a genuine say in the decisions that affect their lives.66

Nevertheless, one nuance must be made. In fact, even if the Internet is a perfect

vehicle for information sharing and democratic participation, the mere access to

information does not ensure a “good” participation.67

In fact, such as argued in the section

on the western hegemony, the Internet overwhelmingly remains controlled by the

capitalist states. Keeping this in mind, one can argue that the cyber space constitutes a

virtual world that is constructed and which still represents the interests of a specific group

of actors: the dominant capitalist ones. In other words, one can analyse that liberal states,

through manipulation of information, are able to influence discourses to the extent of

making them dominant or subjugated on a global scale. Indeed, as argued by Pickles, the

World Wide Web is “a cultural product pregnant with relationships and subjects to the

uses and misuses of power”.68

Therefore, if the so-called “third-world” wants to make

sure to be heard at an international level and avoid coping with a further source of

“cultural imperialism perpetuated by the corporate first world”, it will have to take part,

rapidly, in the development of the Internet.69

From the point of view of the Critical theory, hence, the Internet can be seen as an

instrument that promotes radical democracy and emancipation since it facilitates

dialogue, communication and helps to overcome the obstacles to democratic participation

at a global level. Nonetheless, the democratic character of the Internet has to be nuanced

because neo-liberal states still control much of its content and, thus, its represents and

vehicles the interests of a small but powerful group.

To conclude, this second chapter has made a neo-Gramscian analysis of the

impact of the Internet on the state as an international actor. In order to do so, the

argumentation has been divided into three sub-sections. Firstly, the Internet has been

approached as a tool for supporting the hegemony of the Western capitalist states as

well as a source of power for them. However, in the second sub-section, it has been

argued that the Internet is also a strategic instrument for counter-hegemonic

movements, allowing non-state actors to rise and take part, next to states, in

international politics. Finally, an analysis of the Internet, but from a Critical Theory

angle, demonstrated that Habermas’ concept of emancipation through radical

democracy can be used to understand the role of the Internet for some class or group of

states in international relations.

66 Wilson III, E. J.; Globalization, Information, Technology, and Conflict in the Second and Third Worlds:

A Critical Review of the Literature, New York: Rockefeller Brothers Fund, 1998, p. 10. 67 Cox, G., “The Digital Crowd: Some Questions on Globalization and Agency”, Design Issues, Vol. 15,

No. 1 (1999), p. 16.

68 Warf, B. & J. Grimes, “Counterhegemonic Discourses and the Internet”, Geographical Review, Vol. 87,

No. 2 (1997), p.261. For further information see Pickles, J.; Ground Truth: The Social Implications of

Geographic Information Systems, London: Guilford Press, 1994

69 Warf, B. & J. Grimes, “Counterhegemonic Discourses and the Internet”, Geographical Review, Vol. 87,

No. 2 (1997), p. 264.

Vol. 4 [2007] Brussels Journal of International Studies 46

CONCLUSION

This paper has argued that the emergence of the Internet modifies, in two main

ways, the “traditional” role of states in international relations. In the first section, it has

been argued that the Internet involves both advantages and disadvantages for a key feature

of the state, its sovereignty. Based on the classifications of Krasner, it has been

demonstrated that the web can be strategic in promoting the process towards international

legal sovereignty, while undermining the interdependence sovereignty. The second section

has argued that the Internet equally transforms another traditional aspect of the states, their

status as the only significant actors in international relations. In order to make the

argumentation, the analysis has been mainly based on Gramsci’s concept of hegemony,

power, counterhegemony and the historic bloc. Through a neo-Gramscian approach, this

section has first demonstrated how the Internet, a priori an instrument of the hegemonic

capitalist states, constitutes as a way for non-state actors to launch counter-hegemonic

struggles and thus, stands next to states in the arena of world politics. Finally, a brief

critique has been made to shed light on the pertinence of Habermas’ concept of radical

democracy and the relative potential of the Internet in the process towards emancipation

based on communication and dialogue. The word relative has been stressed because, even

if the Internet appears to bring promises of global democracy, until now, it remains almost

fully within the hands of the dominant capitalist states.

Vol. 4 [2007] Brussels Journal of International Studies 47

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Vol. 4 [2007] Brussels Journal of International Studies 49

The Wall. A Breach of Israel’s Erga Omnes Obligations: Consequences

on Third Parties

Olivier Marquais1

This work identifies the construction of the wall/fence in the Occupied Palestinian

Territories (hereafter OPTs) as a breach of Israel’s obligations to comply with the

Palestinian erga omnes right to self-determination. It results in an accumulation of

violations under international humanitarian and human rights law which interfere with

the exercise of their erga omnes right. Because of the special character of the breach, the

international wrongful acts flowing from Israel’s action engage its responsibility and

involve third parties. States are under the obligation not to further the violations and to

deter them. Individual and collective positive actions may take place through

international organizations or political entities, and also involve financial measures

hindering the state’s commercial competitiveness. Nevertheless, third party action calls

for extreme prudence. ‘Secondary wall infrastructure’ may become permanent and

further Israeli discriminatory strategy while causing violations of principles of

international law that the ICJ aims at defending in its Opinion.

INTRODUCTION

Since the beginning of the second and ongoing intifada in September 2000,

violence and human rights violations on the part of both parties have reached a level

unprecedented in the 36 years of Israel’s occupation of the Palestinian territories.2

Regardless of its duration, occupation “gives rise to a myriad of human, legal and political

problems.”3 Resulting from a great number of government-made decisions aiming at

preventing the infiltration of Palestinians into Israel, the cabinet in June 2002 consented to

the construction of a “security fence.”4 Allegedly aiming at preventing terrorists acts

emanating from within the West Bank5, it separates a large portion of the

1 Olivier Marquais is currently a Law student enrolled in the Civil Law Faculty of the University of

Ottawa. He received his French Baccalaureate from the Lycee Francais de Los Angeles in Economics and Social Sciences in 2001, and his undergraduate degree from the American University of Paris in

International Communications and International Politics in 2006. He completed an LL.M with

‘Distinction’ in Public International Law at the Brussels School of International studies in 2008. While

studying under the supervision of Dr. Kobtzeff and Dr. Gardner as an undergraduate student he specialized

in Human Rights and Middle Eastern affairs. He came to the BS IS to research the various Human Rights

violations taking place in the Occupied Palestinian Territories resulting from the occupation, and more

specifically the International Human Right to Water in the West Bank in relation to the Israeli policy since

the Six-Day War.

2 Amnesty International, Israel and the Occupied Territories: The Place of the Fence/Wall in International

Law (AI Index: MDE 15/016/2004, 19 February 2004)

3 Separate Opinion of Judge Elaraby

4 For a list of the decisions taken by Israel and leading to the separation-barrier plan, see B’Tselem, Behind

the Barrier: Human Rights Violations as a Result of Israel’s Separation Barrier, (March 2003).

5 According to Israeli authorities, “the Security Fence is a central component in Israel’s response to the wave of Palestinian terrorism. It is a defensive measure, designed to block the passage of terrorists,

Vol. 4 [2007] Brussels Journal of International Studies 50

occupied West Bank from Israel proper6, running from the north to the south of the West

Bank, and around Jerusalem.7 The General Assembly requested

8 the International court of

Justice9 to render an advisory opinion concerning the legal consequences arising from the

construction of the wall.10

The Court acknowledged the previously declared illegality of

the wall11

, which would not have been illegal if it had been built on Israeli territory. Its

illegality derives from its geographical placement and the resulting harm inflected upon

Palestinian people as a whole.12

In the Advisory Opinion on Legal Consequences of the

construction of a Wall in the Occupied Palestinian Territory of 9 July 200413

, some

ambiguities in the question posed to the Court remain flagrant. The General Assembly did

not specify whether it meant consequences for all States, for international organizations, or

for the two parties alone.14

The question to be answered is the following: how is the

construction of the wall a breach of the obligations incumbent upon the state and which

special character imposes further action by third parties? This analysis will deal with the

identification of the breach by Israel of the erga omnes obligations incumbent upon it. We

will then consider the legal consequences of Israel’s violations on third parties — that is

international organizations and other States, deriving from IHL and HR law, and due to the

erga omnes character of the breach. In chapter one

I will consider the construction and location of the wall as part of a broader Israeli

isolation and discriminatory policy. I will then assess its effects on the exercise of the

Palestinian right to self-determination under the two legal frameworks. The second

chapter will provide a legal and critical discussion of the erga omnes character of the

violation identified in chapter one, and of the resulting obligations on third parties, taking

into consideration some influential factors.

IDENTIFYING ISRAELI BREACH OF ITS OBLIGATIONS

General discussion of the wall

The act: the construction of the wall

weapons and explosives into the State of Israel and thus save lives, and not to annex territory.” See Israeli

Ministry of Defence on 31 July 2003. 6 Herb Keinan, Cabinet Okays ‘Security Concept,’ Jerusalem Post [JM. Post], June 24, 2002, at 1

7 Amnesty International, (2004)

8 In accordance with Article 96 of the UN Charter, “The General Assembly or the Security Council may

request the International Court of Justice to give an advisory opinion on any legal questions” And did so at

its Tenth Emergency Special Session on 8 December 2003 adopting resolution ES-10/14

9 Pursuant to Article 65 of the Statute of the Court

10 The exact question asked to the Court was: “What are the legal consequences arising from the

construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory,

including in and around East Jerusalem, as described in the report of the Secretary-General, considering the

rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant

Security Council and General Assembly resolutions?” See Wall Opinion, para. 1

11 See General Assembly resolution ES-10/13 which “demanded Israel to stop and reverse construction of the wall [...] in contradiction to relevant provisions of international law”

12 Richard A. Falk, Towards Authoritativeness: The ICJ Ruling on Israel’s Security Wall, The American

Journal of International Law, Vol.99, No. 1 (Jan., 2005)

13 We will refer to it hereinafter as the ‘Wall Opinion’

14 Amnesty International, (2004)

Vol. 4 [2007] Brussels Journal of International Studies 51

The wall built by Israel is not being constructed on the 1948 armistice line15

; about

90% of its route is on Palestinian territory inside the West Bank. At the time of writing of

the opinion it was running for more than 650 kilometers, with an average width of 60 to

80 meters16

. The centerpiece is the wall itself but consists of chain-link fencing in most

parts.17

Moreover, on the basis of that route, 975 square kilometers or 16.6% of the West

Bank lie between the Green Line and the wall, the area being home to 237,000

Palestinians.18

Since the beginning of the project, and as it appeared necessary in the building

process considering the chosen route, Palestinian homes and infrastructure were

demolished, lands, orchards and olive groves were rendered unusable, and “over 100,000

civilian non-combatants have been rendered homeless and hapless.”19

An estimated

100,000 dunums of the West Bank’s most fertile land was confiscated and destroyed only

during the first phase of the project.20

The construction then directly led to encirclement

of Palestinian towns and villages, homes to 160,000 Palestinian Arabs21

, cutting off

communities and families from each other, separating farmers from their land and

Palestinians from their places of work, education and health care facilities and other

essential services.22

Beyond the act: general Israeli strategy

At the time of writing the ICJ did acknowledge some references made of Israel’s

planned construction of the wall “following the Jordan Valley along the mountain rage to

the West.”23

It is now safe to assume, almost four years later and considering the recent

changes in the route of the wall24

that this policy of external closure is indeed being

implemented. Its length has increased considerably when defining more and more

accurately the borders of the isolated area. The first modification, as shown by the map

below, concerns the incorporation in the Israeli side of the two settlements of Nili and

Naaleh. The second and most interesting modification for this analysis is a new section

added in the Dead Sea and encircling the West Bank a little more; it deprives Palestinians

15 The Green Line hereinafter

16 It consists of barbed wire at the perimeter, ditches, strip of sand to detect footprints, large trace paths and tank patrol lanes on each sides of the fence/wall, as well as additional buffer zones/no-go areas of varying depths. The fence is outfitted with electronic sensors, and depths barriers may also be added. Amnesty International, (2004), Wall Opinion, 82, and Geoffroy R. Watson, The “Wall” Decisions in Legal and Political Context, The American Journal of International Law, Vol. 99, No. 1. (Jan., 2005).

17 Ibid.

18 Wall Opinion, para. 84

19 Separate Opinion of Judge Elaraby

20 Wall Opinion, para. 133

21 Ibid, para. 122

22 Amnesty International, (2004)

23 Wall Opinion, para. 80

24 The two clearest maps showing the route of the wall as approved in The Government Decision of 30 April 2006, and as revised as of April 2007 were made available by the non-profit organization the Applied

Research Institute-Jerusalem at http://www.poica.org/editor/case_studies/view.php?recordID=1154 For the

official map as released by the Israeli Ministry of Defense, see

http://securityfence.mfa.gov.il/mfm/web/main/missionhome.asp?MissionID=45187&

Vol. 4 [2007] Brussels Journal of International Studies 52

of a surface of 71 Km2 for no obvious strategic reason. It is nevertheless important to

consider it a perpetuation of the Israeli isolation policy to cut off the OPTs from the rest

of the world. Clearly further advancements gradually encircle the whole of the territory,

aiming at separating the West Bank from Jordan in the same way Gaza is separated from

Egypt, and creating a “perfect ghetto”.25

For security reasons the government of Israel has for long considered “plans to

halt infiltration into Israel from the central and northern West Bank”26

. As the project was

then taken to further steps, the route of the fence became clearer; the works planned27

with

its associated regime resembled the creation of a “fait accompli” likely to provoke

permanent modifications on the ground.28

This appears even more plausible considering

the rapid advancements and the continuation of construction regardless of the

consequences. The project, part of a general discriminatory policy, integrates Israeli

settlements and their means of access, and could only be efficient if the construction was

not hindered by third parties concerns. Consequently a considerable part of the works had

already been completed less than two years after the cabinet’s decision.29

This also

25 Richard Ben Cramer, How Israel Lost: The Four Questions at the Heart of the Middle East Crisis, Free

Press, (London, 2004), p. 68

26 Wall Opinion, para. 80

27 Or already completed at the time of the Opinion

28 Wall Opinion, para 121

29 At the time of the Opinion Phase A and B were nearly completed, Phase C having begun as early as of 25,

January 2004. Wall Opinion, para 81

Vol. 4 [2007] Brussels Journal of International Studies 53

explains the lack of transparency regarding its route.30

When the Israeli human rights

organization B’Tselem requested a copy of the map of the route of the separation barrier

after the cabinet approved its construction, the demand was immediately rejected.31

Although the ICJ made very few references to Israeli security or the larger goals pursued

by Israel in its construction of the wall32

, reluctance to provide information on the part of

Israel leads to criticism concerning the possible motivations behind the construction of the

wall. 33

So does the fact that Israeli reasons for choosing such a geographical placement,

which hinders the Palestinian right to exercise self-determination and statehood,

have always remained unexplained. 34

The wall: a breach of Israel’s obligations under I HL and HR law

Now that we have identified the construction of the wall as part of a broader

Israeli policy, we shall now consider how this conduct constitutes a breach of its

international legal obligations to respect Palestinian rights. The applicability in the OPT

of the 3rd

and 4th areas of international law — humanitarian and human rights law -- is

unquestionable. Since the Palestinian territory between the former eastern border of

Palestine under the British Mandate and the armistice line is occupied by Israel35

,

humanitarian law therefore does apply.36

With respect to human rights law, the Court

considered applicable to the OPTs the ICCPR37

, the ICESCR38

and the CROC39

.

The Wall and International Humanitarian Law

30 This “violates the ruled of proper administration and hampering informed public debate on a project on

the long term.” B’Tselem, (2003). 31 The “Publication of the map had not [yet] been authori2ed”, and “Information cannot be provided other

than what has appeared in the media”. See Letter of 2 January 2003 from Defense Ministry Spokesperson

Rachel Nidak-Ashkenazi, Letter of 17 February 2003 from A. Barak, senior assistant for public complaints. As stated in B’Tselem, (2003).

32 Adam M. Smith, Good Fences Make Good Neighbors?: The ‘Wall Decision’ and The Troubling Rise of

the ICJ as a Human Rights Court, Harvard Human Rights Journal / Vol. 18, Spring 2005.

33 It is interesting to consider that “the Court lacked many relevant facts bearing on Israel’s construction of

the wall because Israel failed to present them”, and then argued that the Court should decline to hear the case for the same reason. See Declaration of Judge Buergenthal, para. 10

34 Victor Kattan, The Wall, Obligations Erga Omnes and Human Rights: The Case for Withdrawing the

European Community’s Terms of Preferential Trade with Israel, The Palestine Yearbook of International Law, Vol. XIII, 2004/2005, pp. 71-89

35 See Art 42 of the Hague Regulations

36 Although Israel is not a party to the Fourth Hague Convention of 1907 to which The Hague Regulations

are annexed, the Court considers its provisions part of customary international law. Also, having ratified GC

IV in 1951, both Israel and Jordan were parties to the Convention when the conflict broke out. The Israeli

Supreme Court recently reaffirmed the applicability of both instruments in its Beit Sourik Judgment of 30

May 2004. Wall Opinion, para. 89, 91, 100 and Beit Sourik Village Council v. Israel (June 30, 2004), para. 23

37 “In respect of acts done by a State in the exercise of its jurisdiction outside its own territory” Wall Opinion, para. 112

38 Since the territories have been subject to Israeli territorial jurisdiction as the occupying power for over 37

years. Wall Opinion, para. 112

39 Since this one applies to “each child within their jurisdiction”. Wall Opinion, para 112

Vol. 4 [2007] Brussels Journal of International Studies 54

It is most significant to consider the Court’s assumptions concerning Palestinian

rights as a central argument in the Wall Opinion.40

The principle is enshrined in the UN

Charter and reaffirmed in resolution 262541

. Its treatment of Palestine as a state entity42

clearly shows the existence of a Palestinian people as an entity entitled to apply the self-

determination principle. Recalling that the focus of the request revolves around the law of

belligerent occupation, it is essential to note that the wall is being built on Palestinian land

for most of its route, and that its construction constitutes a de facto annexation of land

contrary to international rules and principles.43

Clearly it considerably “interferes with the

territorial sovereignty and consequently with the right of the Palestinians to self-

determination”. Also, as a direct consequence of its geographical placement as discussed

earlier, the wall effectively fragments the territory over which the Palestinian people are

entitled to exercise the right of self-determination.44

Clearly, the route chosen by Israeli authorities also implied the destruction or

requisition of Palestinian property for reasons other than the absolute necessity imposed

by military operations.45

It therefore contravenes articles 4646

and 52 of the Hague

Regulations and 53 of GC IV that provides that the “destruction by the occupying power

of real or personal property [...] is prohibited”.

When reaffirming the applicability of the Fourth Geneva Convention in resolution

446 of 1979, the Security Council focused on the absence of the “legal validity” of the

Israeli settlements47

that it then declared a “flagrant violation” of the Convention48

since

the beginning of the conduct of the policy49

in 1977.50

According to the Fourth Geneva

Convention, “the Occupying Power shall not deport or transfer part of its own civilian

population into the territory it occupies”.51

The Settlements are ipso facto in violation of

international rules and principles.52

For this analysis it is most relevant to consider the

40 The existence of the “Palestinian people is no longer an issue” and has also been recognized by Israel when Yitzhak Rabin stated that “the Government of Israel has decided to recognize the PLO as the

representative of the Palestinian people”. It is also important to note that the Israeli — Palestinian

agreements refer to the “legitimate rights” of the Palestinian people. Wall Opinion, para. 118.

41 “Every State has the duty to refrain from any forcible action which deprives peoples referred to [...] of their right to self-determination”. Security Council Resolution 2625 of 27 October 1970

42 Palestine was also allowed to take part in the hearings and was able to co-sponsor the draft resolution requesting the advisory opinion, and was then allowed by the Court to submit a written statement within the

given time-limit. Wall Opinion, para. 4 - 5

43 As condemned by resolution 242 and 2625, and as stated by the Court in the Nicaragua v. United States of America Case. Wall Opinion, para 74, 87, 117, res 242 and 2625, ICJ Judgment of 26 November 1984.

44 Wall Opinion, para. 115

45 Wall Opinion, para. 132

46 This one provides that private property must be respected and may not be confiscated.

47 Security Council Resolution 446 of 22 March 1979

48 Security Council resolution 465 of 1 March 1980.

49 Israel has always allowed and encouraged Israeli citizens, motivated by religious and national sentiments, to establish their homes in the territories. Daphne Barak-Erez, Israel: the security barrier — between

international law, constitutional law, and domestic judicial review, International Journal of Constitutional

Law, 2006. 50 Wall Opinion, para. 120

51 It was also reiterated in Art 85(4a) of the Additional Protocol of June 8 1977

52 Declaration of Judge Buergenthal, para. 9

Vol. 4 [2007] Brussels Journal of International Studies 55

wall as a measure taken by the occupying power to plan and organize the transfer of parts

of the Israeli population to the occupied territory. This practice is also forbidden by the

same article.

The route of the wall clearly allows the perpetuation of the already declared illegal

policy, and serves to encompass the great majority of Israeli settlements.53

Some 54

Israeli settlements in the West Bank and 12 in East Jerusalem, amounting to 80% of the

Israeli settlers54

, or some 320,000 individuals55

, are located in the “Closed Area”.56

Not

only do settlers greatly benefit57

from Israel’s discriminatory policy, but the reinforcement

of settlements also considerably changes the demographic composition of the West Bank.

Since this leads to the departure of Palestinian populations from certain areas, the

Palestinian ability to exercise self-determination clearly “has been materially affected by

the combination of the wall and the change in population.”58

The Wall and International Human Rights Law

As we have established earlier, the route of the wall may lead to a total isolation of

the West Bank from both Israel and Jordan. The policy of external closure imposed upon

West Bank residents is also accompanied by a policy of internal closure, largely enhanced

by the route chosen. It becomes most important to consider the associated effects from the

construction of the wall, which lead to the creation of a “Closed Area”59

as a means to

enforce a general discriminatory policy. Residents of the area must not remain in it, nor

can non-residents enter it.60

It imposes restrictions on freedom of movement of Palestinian

Arabs that can only access the area through gates, opened “infrequently and for short

periods” 61

, in violation of Art. 13 (1) of the Universal Declaration of Human Rights62

,

and Art. 12 paragraph 1 of the ICCPR.63

The consequences of the route of the wall are

even more disastrous when certain enclaves are

53 As shown by the maps of the wall and considering that the most recent changes in the route of the wall

concern the integration of the settlements of Nili and Naaleh in the Israeli side, Israel’s policy appears more

current than ever. 54 Wall Opinion, para. 119

55 Wall Opinion, para 112

56 Amnesty International, (2004)

57 Israel made available “statistics indicating the enjoyment of the rights enshrined in the [ICESCR] by

Israeli settlers in the occupied territories” when “the Palestinian population within the same jurisdictional

areas were excluded from [...] the protection of the Covenant”. Wall Opinion, para. 112

58 Susan C. Breau, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

International & Comparative Law Quarterly, 2005

59 It is established in the part of the West Bank lying between the Green Line and the Wall

60 Israeli citizens on the other hand are allowed to immigrate in, move freely to, from, and within the Closed

Area without a permit. Wall Opinion, para. 85

61 Wall Opinion, para. 85

62 It provides that “everyone has the right to freedom of movement and residence within the borders of each

State”

63 This one provides that “everyone lawfully within the territory of a State shall, within that territory, have

the right to liberty of movement and freedom to choose his residence.”

Vol. 4 [2007] Brussels Journal of International Studies 56

subject to more extreme restrictions on the freedom of movement of residents.64

Therefore,

as a consequence of the wall and of its associated regime, a significant number of

Palestinian Arabs have had no other choice but to leave the area65

, even though the66

first

generation of human rights guarantees them the right to choose their residence.

Stemming from the destruction and requisition of Palestinian land, the vast amount

of property that West Bank residents are deprived of consists of the most fertile

agricultural land, fruit and olive trees, wells, and hothouses upon which tens of thousands

of Palestinian Arabs rely for their survival.67

In the region that Postel described as “the

most concentrated region of [water] scarcity in the world”68

, and where 25% of the whole

West Bank population is employed in farming69

, Palestinian access to the most essential

means of survival, such as water, is considerably hindered by construction of the wall that

cuts Palestinian Arabs from the most important water wells of the region.70

West Bank

residents must mainly rely on rain water and water tankers. These tankers are often unable

to reach the populations in need71

due to the limited freedom of movement and internal

closures. Furthermore, the construction of the wall resulted in the separation of “30

localities from health services, 22 from schools, 8 from primary sources of water and 3

from electricity networks.” Impeding the freedom of movement results in a decline in

production and employment72

; according to some sources, unemployment has risen to over

50% and more than half of the Palestinian population now lives considerably below the

poverty line.73

By hindering the right to work74

the wall hits the economic foundations of

the Palestinian society and thwarts changes for the durable development of a functional

Palestinian State while simultaneously violating of a large number of human75

rights

provisions.

64 According to Special Rapporteur, “Qalqiliya, a city of 40,000, is completely surrounded by the Wall and residents can only enter through a single military checkpoint open from 7 a.m to 7 p.m.” Wall Opinion,

para. 133

65 Wall opinion, para. 133

66 The restrictions of freedom of movement are similar with respect to Palestinian access to holy places, hindered by the route of the wall in violation of the provisions contained in the 181 resolution, the 1949

Armistice agreement, and the more recent Art 9 paragraph 1 of the 1994 Peace Treaty between Israel and

Jordan. Wall Opinion, para. 129

67 Wall Opinion, para. 133

68 Postel, S., Last oasis: facing water scarcity. W.W. Norton & Co., (New York, 1992)

69 B’Tselem, (2003). 70 Wall Opinion, para 133.

71 B’Tselem, Not Even A Drop, The Water Crisis in Palestinian Villages Without A Water Network, 2001.

72 Sufyan Alissa, The Economics of an Independent Palestine in Where Now for Palestine? The Demise of

the Two-State Solution, Zed Books, (London, New York, 2007)

73 Amnesty International, Israel and the Occupied Territories: Surviving Under Siege: The Impact of Movement Restrictions on the Right to Work, September 2003 (AI Index: MDE 15/001/2003)

74 It is worth noticing the common direction taken by both human rights and humanitarian law with respect

to unemployment. The right to “gain his living by work” is put forward in Art 6 and 7 of the ICESCR, and

Art 52 of GC IV forbids “all measures aiming at creating employment or at restricting the opportunities offered to workers in the occupied territory”.

75 Right to protection (and assistance accorded to family and to children and young persons) under Art 10 of

the ICESCR, right to adequate standard of living, including adequate food, clothing and housing and to be

“free of hunger” (Art 11), Right to health (Art 12), Right to education (Art 13 and 14) The Croc contains

similar provisions in Articles 16, 24, 27, 28. Wall Opinion, para. 131, 133.

Vol. 4 [2007] Brussels Journal of International Studies 57

Human rights violations go hand in hand with the humanitarian violations assessed

above, and highlight the absence of respect for some provisions of the law of occupation.

Today’s illegal annexation of land is based on previous crucial and illegal Israeli practices

such as the 1967 acquisition of territory by war, and the perpetuation of these violations

clearly amount to impeding Palestinian exercise to self-determination. According to Judge

Al-Khasawneh, “what prevents this right of self-determination from being fulfilled is

Israel’s prolonged military occupation with its policy of creating faits accomplis on the

ground.”76

The construction of the wall therefore involves serious breaches of Israel’s

obligations incumbent upon it under both humanitarian and human rights law77

to respect

Palestinian entitlement to the liberation principle. The international wrongful acts

stemming from Israel’s action78

engages its responsibility79

, but also involves third parties

because of the special character of the breaches. LEGAL / CRITICAL DISCUSSION OF ERGA OMNES OBLIGATIONS FOR 3

RD

PARTIES

Since the beginning of its construction the wall has been the subject of great

controversy and has prompted intense protests on the part of the Palestinian Authority and

many states around the world.80

Considering the issue of general concern and a “threat to

international peace and security”81

and also witnessing the inefficiency of the SC82

, many

UN Member States thus pushed for the GA to address this matter. The nature of the

opinion issued by the ICJ at the behest of the GA and of its advisory character does not

preclude binding legal consequences on third parties; in fact the Wall Opinion is a

“declarative law destined to all subjects of international law.”83

Based upon the findings

of the previous discussion of the violations of its international obligations, we will now

consider the erga omnes character of Israel’s breaches, and the resulting legal

consequences of the international wrongful acts flowing from Israel’s act84

, for third

parties, deriving from IHL.

The erga omnes character of Israel’s violations

Palestinian self-determination as erga omnes obligation

76 Separate Opinion of Judge Al-Khasawneh, para. 9

77 Wall Opinion, para, 137

78 Wall Opinion, para. 154

79 Wall Opinion, para 147

80 Amnesty International, (2004)

81 Wall Opinion, para. 17

82 In October 2003 the US vetoed a draft SC resolution condemning the wall as illegal. The `Quartet’

(representatives of US, EU, Russia, and the UN) then obtained Security Council approval for their

`Performance-based Road Map to a permanent Two-State Solution’ although it said nothing about the wall.

Neither did res 1515. See SC Res 1515 (Nov. 19, 2003), Wall opinion, para. 22, 30, 31, Amnesty

International, (2004)

83 UN Meeting on Question of Palestine Discusses Responsibility of Government in Upholding

International Law, GA/PAL/981, 10 March 2005

84 Wall Opinion, para. 154

Vol. 4 [2007] Brussels Journal of International Studies 58

Different from regular rules, the erga omnes rule creates obligations which the ICJ

has previously recognized in many instances.85

The legal consequences of these obligations

“are due to the normative character of a rule [rather than] to its binding character.”86

Since

“states may have a general interest [...] in the maintenance of an international regime

adopted for the common benefit of the international society”87

, erga omnes obligations

pertain to the enforcement of rules of international law which violation “is deemed to be an

offense against all members of the international community.”88

Subscribing to a rather

broad view89

, recalling that it declared the right of peoples to self-determination to be an

erga omnes right in the East Timor case90

, and that “every state has the duty to promote

[it]”91

, the Court’s biggest concern appears to be the use of the wall as a means to

perpetuate a policy in flagrant violation of Israel’s duty to respect Palestinian rights. Since

the necessary protection of human rights for the exercise of the liberation principle is not

ensured, and many provisions of humanitarian law have been violated, the Court declared

some of the obligations violated by Israel to be of erga omnes character. The failure to

respect the Palestinian right to self-determination and some obligations incumbent upon the

Jewish State under international humanitarian law92

are part of “a great many rules [...] so

fundamental to the respect of the human person and ‘elementary considerations of

humanity, [...] that are to be observed by all States whether or not they have ratified the

conventions.”93

In the Barcelona Traction case, the Court indicated that by their very

nature, such obligations are the concern of all states,94

and that they can “be held to have a

85 See Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime

of Genocide of May 28 1951, Judgment of the Case Concerning The Barcelona Traction, Light and Power

Company, Limited, of 5 February 1970, the ICJ Judgment on Nuclear Tests Case of 8 July 1996. 86 Alexander Orakhelashvili, Legal Consequences of the Construction of a Wall in the Occupied Territory:

Opinion and Reaction, Journal of Conflict & Security Law (2006)

87 Dissenting Opinion of Judge Jessup in the South West Africa Cases (Second Phase) as stated in Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Oxford University Press, (New York,

2000), p 8

88 Victor Kattan, The Wall, Obligations Erga Omnes and Human Rights: The Case for Withdrawing the European Community’s Terms of Preferential Trade with Israel, The Palestine Yearbook of International

Law, Vol. XIII, 2004/2005

89 The Court does not mention jus cogens norms in the Opinion, and considered as a whole that the

obligations erga omnes “do impose substantive obligations on third states.” See Iain Scobbie,

Unchart(er)ed waters?: consequences of the advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory for the responsibility of the UN for Palestine,

European Journal of International Law, 2005

90 The Court based its judgment upon its jurisprudence (see Legal Consequences for States of the

Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council

Resolution 276 (1970), Advisory Opinion, ICJ. Reports 1971, para. 52-53 and Western Sahara, Advisory Opinion, ICJ. Reports 1975, paras. 54-59), and described as “irreproachable” Portugal’s assertion that “the

right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has

an erga omnes character”. See Wall opinion, para. 156, Judgment of 30 June 1995 of the case concerning

East Timor, para. 29. 91 Security Council Resolution 2625 of 27 October 1970

92 Wall opinion, para. 155

93 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 8 July 1996

94 This eventually led to the writing of the new Article 48 on state responsibility of the ICL, according to

which states can invoke responsibility from the violation of an obligation erga omnes although they have suffered no injury. Edith Brown Weiss, Invoking State Responsibility in the Twenty-First Century, The

American Journal of International Law, Vol. 96, No. 4. (Oct., 2002)

Vol. 4 [2007] Brussels Journal of International Studies 59

legal interest in their protection.”95

The construction of the wall in occupied Palestinian

territory thus has legal consequences for the State of Israel, clearly enumerated in detail96

,

but also for other States97

and the United Nations.98

The resulting obligations on third parties

The obligation of every State party to the Fourth Geneva Convention to ensure

compliance by Israel of international humanitarian law99

flows from the Court’s

interpretation of humanitarian rules and insistence using the language “to respect and to

ensure respect for the present Convention in all circumstances.”100

The deliberate

language used in Common Art 1 can be seen as a “conventional precursor to the erga

omnes principle enunciated in Barcelona Traction.”101

Common Article 1 may indeed

reflect customary law;102

it grants the High Contracting Parties a ‘legal entitlement’ to

demand respect and observance for the Convention. It is the common interest “in

compliance with humanitarian treaty rules [that is being] recognized and translated into a

legal mechanism.”103

Given the special character of the obligations violated, the Court set out two

negative obligations. In conformity with Art. 16 of the Draft Articles on Responsibility of

States for Internationally Wrongful Acts, it took the view that States are under an obligation

not to recognize the illegal situation arising from the construction of the wall, and not to

render aid or assistance in maintaining that situation it created.104

Considering the positive

obligations, it becomes the responsibility of third parties to ensure Israel’s compliance with

humanitarian law and to see that “any impediment resulting from the construction of the

wall to the exercise [...] of self-determination is brought to an end” through lawful means.105

Such obligation clearly lacks specification, and “leaves much to be desired in the way of

fulfilling this judicial imperative.”106

According to Art 14(2)107

95 Judgment of 5 February 1970 concerning The Barcelona Traction, Light and Power Company, Limited. para. 33. It is relevant to note that the passage on obligations erga omnes attracted the support of all judges,

For more, see Maurizio Ragazzi, (2000), p 11

96 Wall Opinion, para 145, 149-153

97 In his Separate Opinion, Judge Kooijmans admitted some similarities with Art 41 of the International

Law Commission’s Articles on State Responsibility which provides that “States shall co-operate to bring to

an end any serious breach [of obligations arising under a peremptory norm of general international law], not

recognize [...] nor render aid or assistance in maintaining that situation”. 98 Wall Opinion, para 144

99 Wall Opinion, para 158, 159

100 This is a notable development of international law that led to the emergence of an opinio juris which did

not exist at the time of writing of the Geneva Conventions. Juan Manuel Gomez-Robledo L’ Avis de la C.I.J sur les Conséquences Juridiques de l’Edification d’un Mur dans le Territoire Palestinien Occupe: Timidité

ou Prudence? Revue de Droit International Public, Tome 109, 2005 101 Theodor Meron, The Geneva Convention as Customary Law, The American Journal of International

Law, Vol. 81, No. 2. (Apr., 1987) 102 Ibid. 103 Antonio Cassese, International Law, 2nd edn, Oxford University Press, (New York, 2005) 104 Wall Opinion, para. 159 105 Wall Opinion, para. 146, 158-159 106 Ardi Imseis, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, The American Journal of International Law, Vol. 99, No.1 (Jan., 2005)

Vol. 4 [2007] Brussels Journal of International Studies 60

of the Draft Articles on Responsibility of States for Internationally wrongful Acts108

, this

obligation imposed upon third parties continues to apply as long as Israel persists in

occupying the territory in violation with humanitarian law, and refuses to bring to an end

the unlawful act of construction of the separation barrier greatly interfering with the

Palestinian right to self-determination.109

If it has become a duty to promote and to respect

for third parties, as laid out in common art 1 or ICCPR and ICESCR110

, State practice on

common Art 1 remains insufficient and “not rich enough to determine the upper limits of

how a State may ‘ensure respect’ for the Fourth Geneva Convention.”111

Although there is

no mechanism for the full application of the Geneva Conventions or Additional Protocols

I and II112

, it does not mean that residents of the West Bank are fully deprived of their

rights; it is arguable that they would have been entitled to even fewer rights in the absence

of the Geneva Conventions.113

Some factors explaining the ruling of the Court

Special relationship between UN and Palestine

The previous acknowledgements by the Court concerning the rights of the

Palestinian people as a whole, the broadness of the question asked to it and its

ramifications raise the interesting issue of the special relationship between the UN and

Palestine. The origin of this question is found in the Mandate and Partition Resolution,

and has been manifested by the adoption of a large number of UN resolutions.114

Before

the Wall Opinion, “no organ had ever requested the International Court of Justice to

clarify the complex legal aspects of the matter under its purview.”115

The broadness of the

question asked to the Court and the unknown nature of the legal scope of its consequences

can be understood mostly when considering the “United Nations’ historical and legal

responsibility towards Palestine.”116

Since it is the first time that the Court has been

consulted by a UN organ with respect to Palestine, and that the UN has a clear

responsibility towards the establishment of a Palestinian State, it appears normal that an

Advisory Opinion of far reaching consequences was to be expected.117

107 It provides that “the breach of an international obligation by an act of a State having a continuing

character extends over the entire period during which the act continues and remains not in conformity with

the international obligation”. 108 Although the text only concerns state entities, the Court’s consideration of the Palestinian people as a whole, the special relationship between the UN and Palestine as discussed earlier and common sense, call

for its application on moral grounds. 109 Victor Kattan, (2004/2005) 110 Wall Opinion, para. 88 111 Marco Sassoli & Antoine A Bouvier, Hoes does Law Protect in War? International Committee of the Red Cross, (Geneva, 1999), p. 231. 112 The meetings of High Contracting Parties created in accordance with Art 7 of API and the International

Fact-Finding Commission created in accordance of Art 90 of the same text have proven useful to facilitate

the implementation of the Conventions. Juan Manuel Gomez-Robledo (2005) 113 And according to a panellist at the UN Meeting on Question of Palestine. 114 Wall Opinion, para. 49. 115 Separate Opinion of Judge Elaraby 116 Separate Opinion of Judge Elaraby 117 Juan Manuel Gomez-Robledo nevertheless deplores that such fundamental norms of humanitarian law have not yet been raised to a status of jus cogens. See Juan Manuel Gomez-Robledo (2005)

Vol. 4 [2007] Brussels Journal of International Studies 61

Third parties reaction v. construction speed & info crisis

As we have already discussed, Israel’s refusal to share the necessary information

and its concern for fast construction gives away part of its general policy. If its purpose is a

permanent modification on the ground, it is safe to assume the goal of this strategy was to

leave limited time and knowledge for third parties to assess its consequences and react to

its construction. Considering Israel’s speedy and cautious construction policy, common

sense dictates that the carefully planned obstacles to Palestinian self-determination should

impose an obligation on third parties to reestablish the previous equilibrium.

The future of the Wall Opinion

The UN and the Wall Opinion

Since the Court’s reply to the request of the General Assembly is only of advisory

character with no binding force, and that Israel continues to build the wall regardless of the

Court’s Advisory Opinion, Palestinians seem entirely deprived of legal protection.118

Clearly the High Contracting Parties are only guided by the necessity to co-operate with the

United Nations.119

As a primary role of international law to is “to provide all international

actors, including States, with guidance as to agreed standards of behavior”120

, this is a

“healthy development for central organs [which] may be in a better position to recommend

or authorize individual or joint action by States against the delinquent State.”121

Also, it is

undeniable that there has been a relatively good practice of implementation of humanitarian

law by the Security Council in the last decade.122

Considering the special relationship

between the UN and Palestine, and given that for the first time the United Nations were

provided with “a judicial determination of essential aspects for the purpose of reaching a

negotiated settlement between the two conflicting parties123

, the United Nations were also124

under a clear moral obligation to “contain and resolve [the] dispute”, as well as “promot[e]

and develop international law.”125

Inaction on the part of the international organization

118 Factsheet: Canada and the ICJ Decision on the Wall, Canada for Justice and Peace in the Middle East, December 2005. 119 In accordance with Art 89 of API. 120 Richard A. Falk, (2005) 121 Example must be made of the economic sanctions taken against Southern Rhodesia in 1966, of the Security Council decision to suspend all contracts with Iran in 1979, of the economic and other sanctions taken against South Africa in 1986, against Iraq (1990-1), the Federal Republic of Yugoslavia (1992), Libya (1992-9), Liberia (1993-4), Haiti (1993). Antonio Cassese, (2005) 122 Juan Manuel Gomez-Robledo (2005), and Antonio Cassese, (2005), p 264-5 123 Juan Manuel Gomez-Robledo, (2005) 124 Involving “parallel or shared responsibilities” between the two organs, The Court called for the General Assembly and Security Council to redouble efforts to bring the conflict to an end since it poses “a threat to international peace and security”, and “consider what further actions is required to being to an end the illegal situation” emanating from the construction of wall. Wall Opinion, para 160, Separate Opinion of Judge Kooijmans, para. 38 125 Rosalyn Higgins, Problems and Process: International Law and how we use it, Oxford University Press, (New York, 1994)

Vol. 4 [2007] Brussels Journal of International Studies 62

would constitute an internationally wrongful act and thus entail its international

responsibility.126

The resulting General Assembly resolution of 20 July 2004 acknowledged the

Court’s Advisory Opinion, and tasked member states to comply with their legal

obligations as stated in the Opinion.127

This resolution was adopted by 150 States and 25

members of the European Union.128

In the absence of coercive means at the disposal of

the General Assembly to implement its resolutions, and given that members are liable for

the obligations incumbent upon their organizations129

, it is also conceivable to see States

making unilateral decisions.130

Clearly the Advisory Opinion concerns Members States of

the European Community which are also Members of the United Nations.131

It has also

been clearly established in both the Senator Lines and Eurocontrol cases that States

cannot “evade their international obligations by hiding behind the independent personality

of an international organizations of which they are members.”132

The EU and the Wall Opinion

Therefore, resulting from the Court’s findings, a number of panelists133

have

discussed the responsibility of governments and intergovernmental organizations in

protecting these “super-rules”134

of customary international law. If it appears in the text

that the obligation of states to deter the violations caused by the wall is unquestionable, it

remains unclear what the means of deterrence should be. Taking the view that States,

international organizations and most specifically financial institutions must refrain from

contributing to the breaches of international law, it is essential to begin by cutting off the

funds used for the construction. It was argued that the free trade system of the European

Union, since it does not restrict materials exported to Israel, provided considerable

126 According to Draft Article 3 adopted by the International Law Commission during its 55th session (2003). See International Law Commission, Report of the Work of its 55th Session, UN Doc.A/58/10, at 45- 59;G.

Gaja, First Report on Responsibility of International Organizations, UN Doc. A/CN.4/532 (26

Mar.2003), at 20-21, para. 39, and Iain Scobbie, (2005 127 It also recalled that “both Israel and the Palestinian Authority are under an obligation scrupulously to observe the rules of international humanitarian law.” 128 Victor Kattan, (2004/2005) 129 C.F. Amerasinghe, Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent, The American Journal of International Law, Vol. 85, No. 2. (April., 1991) 130 After having openly critici2ed the project, The United States canceled U.S.$289.5 million in loan guarantees to Israel. This amount was meant to reflect a portion of the construction of the wall. See Steven

R. Weisman, U.S. Rescinds Part of Loan Guarantees to Israel, N.Y. Times, Nov. 26, 2003, at A12, as stated

in ICJ Advisory Opinion on Israeli Security Fence, The American Journal of International Law, Vol. 98,

No. 2. (April 2004) 131 Victor Kattan, (2004/2005 132 As acknowledged by General Advocate Tesauro, and as stated in Iain Scobbie, (2005); See also Decision of 4 July 2000 on the case concerning Senator Lines v Member States of the European Community. 133 During the United Nations Geneva International Meeting on the Question of Palestine of 9 March 2005 134 The existence of these ‘super rules’ and their consequent ‘collective guarantees’ at a certain moment of the development of the international community is the logical consequence of the importance given to these rules, and also corresponds to the evolution of human rights law. Juan Manuel Gomez-Robledo, (2005)

Vol. 4 [2007] Brussels Journal of International Studies 63

benefits to Israel when importing construction materials used for the expansion of the

wall. According to the jurisprudence of the European Court of Justice, the obligations

violated are binding upon the European Community; it is necessary to take positive and

collective action.135

Efforts must then be made to urge the EU, “a far bigger trading and

commercial partner than the US”136

, to implement the necessary legal actions.137

As a

relevant actor with respect to the present analysis138

, it has the same obligations States do,

to bring to an end Israel’s violations, and should first refrain from continuing granting

Israeli preferential access to the common market.139

The example must be made of the 9

CEE members taking measures against Iran on 22 April 1980140

, and the coercive

measures taken in 1982 in relation to the Falklands/Malvinas conflict.141

At the domestic

level it is most important to consider the public opinion as a potential driving force which

can play “an important role in putting pressure on respective States to act in accordance

with international law”.142

General remarks regarding international aid

Careful consideration of appropriate behavior to be adopted by the international

donor and aid community operating in the OPT is crucial, and the obligations on third

parties caused by the erga omnes character of the violations could very well lead to

further breaches of IHL. “Mitigation measures” that aim at “offsetting and countering the

effect [of the wall] on the Palestinian civilian population” create a so-called “secondary

wall infrastructure”. These measures would be unnecessary in the absence of the wall, and

could consequently include the construction of public infrastructure such as health clinics

and road networks. It is arguable that supporting such construction would create

permanent infrastructure on the ground, dependent on the current placement of the wall,

and in violation of the principles of IHL the opinion aims at defending.143

This would

undoubtedly reinforce the possible permanent status of the wall as a new border, when

clearly furthering the Israeli discriminatory policy.144

CONCLUSION

135 Victor Kattan, (2004/2005) 136 Ian Williams, Israel up against the wall, Asian Times, Jul 14, 2004 137 UN Meeting on Question of Palestine 138 In the Costa v. ENEL case, the European Court of Justice acknowledged that the transfer of the sovereign powers from the Member States to the European Community came with the responsibility resulting from the erga omnes character of some international humanitarian rules. Judgment of the European Court of Justice, Flaminio Costa v ENEL, of 15 July 1964, para. 157 139 Victor Kattan, (2004/2005) 140 Although the CEE was Iran’s strongest commercial partner in 1978 (providing 43% of its importations and absorbing 36% of its exportations), and was the CEE’s second largest oil supplier (17%), the 9 members had agreed on embargo measures directly aiming at conflict resolution possibilities. The measures were very similar to the ones adopted by the Security Council on 13 January 1980, and that the Soviet Union had vetoed. Read Revue Générale de Droit International Public, 1980, 2, p 884 141 The EC suspended the import of goods from Argentina for its attack on the island. See Antonio Cassese, (2005), p 264 142 As stated in UN Meeting on Question of Palestine and according to Professor Georges Abi-Saab. 143 Ardi Imseis, (2005), p. 117 144 Ibid.

Vol. 4 [2007] Brussels Journal of International Studies 64

Adding to the doubtful moral character of the general policy behind the

construction of the wall as discussed in the first chapter, its placement, consequences on

the ground and purpose vis-à-vis settlers led the Court to consider that its construction and

ramifications did impede the erga omnes right of peoples to self-determination. Not only

does it seriously “reduce the size of the self-determination unit within which that right is

to be exercised”145

, but is also an “expression in loco” of Israel’s settlement policy.146

The

consequent de facto annexation of a significant portion of the West Bank is an incentive

that allows the perpetuation of Israel’s ‘drop by drop’ policy of settlement. The illegality

of the wall, as well as the suffering of many Palestinians living in that Territory147

is

indisputable. Clearly the ruling constitutes a powerful reminder that the question of

Palestine, in all its aspects, is subject to international law148

. That the harm done to West

Bank residents amounts to a breach of Israel’s obligation to respect the erga omnes right

of a people entitled to exercise self-determination is unquestionable.149

In the Wall

Opinion, self-determination is the major obligation erga omnes imposing responsibilities

on third parties150

. Not only has it been declared an erga omnes right, it has also become

a duty for other States to promote, and for the UN to implement. Some humanitarian

provisions also place third parties under the obligation to ensure the reestablishment of

the previous equilibrium. As the very character of the violation makes it of general

interest for the international community, we are now moving towards a system in which

states “have the right to hold other states accountable for breaching obligations owed to

the international community as a whole.”151

A careful and considerate implementation of

the decision, whether it implies individual or joint measures, must be based on the

guidance provided by the United Nations organs. Member States of the EU and the UN

must bear in mind that they must refrain from aiding the Israeli State as a violator of

central tenants of international law; this does not only mean cutting off the funds used for

the construction of the wall. As it has been agreed that many measures, on the long term,

may work against the benefit of the victim state in violation of some provisions of IHL, it

is crucial to leave the United Nations organs the role of carefully assessing the possible

acts of deterrence and their legal consequences on the short and long term.

145 Report of 8 September 2003, E/CN.4/2004/6, 8, para 15, Report of 27 February 2004, E/CN.4/2004/6/Add.1, 13-13, para 131, and Alexander Orakhelashvili, (2006) 146 Geoffroy R. Watson, (2005). 147 Separate Opinion of Judge Buergenthal, para. 2 148 UN Meeting on Question of Palestine Discusses Responsibility of Government in Upholding International Law, GA/PAL/981, 10 March 2005 149

Geoffroy R. Watson, (2005). 150 Iain Scobbie, (2005) 151 Edith Brown Weiss, (2002)

Vol. 4 [2007] Brussels Journal of International Studies 65

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26, 2003, at A12

Ian Williams, Israel up against the wall, Asian Times, Jul 14, 2004

Websites

The Israel Ministry of Defense and the Israel Defense Forces ( IDF) have completed the

first stage of the Security Fence project, Israel’s Security Fence, on time., 31 July

2003. http://www.seam2one.mod.gov.il/Pages/ENG/news.htm#news5

Factsheet: Canada and the ICJ Decision on the Wall, Canada for Justice and Peace in the

Middle East, December 2005.

www.cipme.ca/documents/En%20 ICJ%20Decision%20v.1.pdf

Cases

CJ Advisory Opinion on Legal Consequences of the construction of a Wall in the

Occupied Palestinian Territory of 9 July 2004.

CJ Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons of 8 July

1996.

CJ Judgment on Military and Paramilitary activities in and against Nicaragua

(Nicaragua v. United States of America) of 26 November 1984.

CJ Judgment of the case concerning East Timor (Portugal v. Australia) of 30 June 1995

ECJ Judgment on the case concerning, Flaminio Costa v ENEL, of 15 July 1964

Decision on the case concerning Senator Lines v Member States of the European

Community of 4 July 2000

Judgment of Israeli Supreme Court of Justice on the case concerning Beit Sourik Village

Council v. Israel of June 30, 2004

Other

Letter of 2 January 2003 from Defense Ministry Spokesperson Rachel Nidak-Ashkenaz

Letter of 17 February 2003 from A. Barak, senior assistant for public complaints

Vol. 4 [2007] Brussels Journal of International Studies 69

Sino-Burmese Relations As Viewed Through Three Lenses

Brooke Storer1

Although possibly cliché, it can be strongly argued that a theory is only as strong as its

weakest point. With that in mind, this paper examines the historically-rooted and evolving

relationship between China and Burma to demonstrate the importance of employing

multiple theories when examining such relations. The argument starts from a neorealist

standpoint, explaining each state’s interest in maximizing power, and moves on to a

neoliberal institutionalist explanation for the cooperation that seems unexplainable by

Neorealism. However much can be understood through these rationalist lenses is coloured

by the deeper understanding offered by Constructivism. With a look at both the history of

jade trade between the two states and a shared perception of Western exploitation, this

final theory points to shared understandings which may account for behaviour that is

misinterpreted by other theories. In this way, three theories are used to demonstrate the

importance of incorporating a multi-theoretical approach in order to paint a more

brilliant picture of interstate relations.

INTRODUCTION

Today, there are 192 member states of the United Nations2, an organisation

formed to facilitate cooperation in an international system boasting no form of

government higher than the sovereign state. In such a system of anarchy, what is the

motivation of states to come together? What factors play a role in determining a state’s

interests and how does it go about meeting those interests? Do states take similar

approaches to provide for their security and, ultimately, their survival in an anarchic

international order?

Theories of International Relations have evolved to address this ever-growing

wave of questions. Cooperation of sovereign states in an international organisation gave

rise to the theory of Neoliberal Institutionalism where Realism could not account for such

cooperation. Constructivism rose from the inability of rationalist theories focused on a

state’s constant pursuit of power to explain a rather anti-climactic end to the cold war.3

The constructivist notion of shared meanings formed through a process of interaction

between states has given rise to countless other theories which examine the very nature of

a system taken as exogenous by Classical Realism.

1 Brooke Storer holds a MA in International Relations from the Brussels School of International Studies,

University of Kent. Before moving to Brussels, she spent two years living and working in both southern

Thailand and Korea in preparation for her studies. 2 “United Nations Member States.” United Nations website. http://www.un.org/members/list.shtml.

3 Fierke, K.M. “Constructivism.” International Relations: Discipline and Diversity. Tim Dunne, Milya

Kurki, and Steve Smith, Eds. US: Oxford University Press, 2007. P. 167.

Vol. 4 [2007] Brussels Journal of International Studies 70

In this way, it becomes apparent that certain events or evolutions of behaviour

may be not be explained completely by one theory. If no one theory may explain

everything, it could be reasoned that a great deal more can be learned by demonstrating

flexibility between multiple theories. To illustrate the value of such an approach, this

essay examines the relationship between China and Burma, represented in this essay by

the enduring military junta. By employing several theories, it will demonstrate the

flexibility necessary to illuminate aspects of the states’ relationship that might be

misunderstood or missed altogether by the application of only one theory.

To do this, first, Neorealism will be employed. It will shed light on the Burmese

junta’s interest in increasing power capabilities by soliciting military weaponry and

infrastructural development support from China. More so, it will act as a framework for

exploring China’s use of Burma as a means of gaining power through expansionist

tactics and increased power capabilities. Second, Neoliberal Institutionalism will be

used, briefly, to address the states’ cooperative interaction unexplainable by Realism.

Third, the relationship will be discussed in terms of shared meanings and understandings

that are born out of a process of continuous interaction. Here, by addressing identities

and interests as evolving features, Constructivism is employed to explain the possible

motivations for continuing a relationship that may shape and even define both states’

interests, but also hinder China’s projection of a positive identity to the international

community.

Through these steps, this essay will argue that an examination of the relationship

between China and Burma requires the application of multiple theories; that a uni-

theoretical approach to this relationship is inadequate and inept in explaining the

historically-rooted and multi-layered relationship. A truly rigorous study of the

relationship between the two demands the application of several theories, each

highlighting and expanding upon a certain aspect of their interaction. In this way, by using

Sino-Burmese relations as a case study, this essay will conclude that a multi-theoretical

approach is imperative, for both understanding cases and testing theories, when addressing

the complexities and continuing evolutions of the international system.

THE PURSUIT OF POWER

Before expanding on the relationship between China and Burma through the lens

of Neorealism, it is important to clarify the basic assumptions of this theory. Neorealism

reverses the bottom-up analysis of Classical Realism, explained by neorealist John

Mearsheimer when he writes, “...it is the structure or architecture of the international

system that forces states to pursue power,”4 rather than the nature of humankind filtering

up to shape state behaviour. In this system, states are unitary actors seeking out power as

4 Mearsheimer, John J. “Structural Realism.” International Relations: Discipline and Diversity. Tim Dunne,

Milya Kurki, and Steve Smith, Eds. US: Oxford University Press, 2007. P. 72.

Vol. 4 [2007] Brussels Journal of International Studies 71

a means of survival, rather than as an end in itself, and the states themselves are the

constituent units of that system.5

There are two schools of thought within Neorealism as to how much power is

necessary for survival. While defensive Realism posits that too much power could cause

security instability and a threat to survival, offensive Realism argues that survival is only

secured by an abundance of power.6 Mearsheimer, an offensive realist, expresses this idea

of relative power by writing that world leaders “should pursue security policies that

weaken their potential enemies and increase their power relative to all others.”7 One

method of doing this would be to maximize power in an expansionist way in an attempt to

reach regional hegemony. For the purposes of this essay, Neorealism will be used as a

term reflecting the assertions of offensive Realism.

In a system such as the one described above, what are the positions of China and

Burma? From its 1948 independence from Britain through 1988, Burma’s approach to

foreign policy was one of non-involvement and isolation. All interaction with other states

was minimalised, including security alliances and cooperation of all types. There was little

concern during that time for strengthening or projecting Burma’s military strength beyond

its borders. The focus was much more inward.8

While Neorealism cannot necessarily account for Burma’s lack of outward focus, it

can shed light on what happened once the State Law and Order Restoration Council

(SLORC) seized power in 1988. After the military junta led a violent coup, killing

thousands, Burma was increasingly cut off from the foreign investments and resources it

had maintained through, and despite, its isolation.9 Hungry to ensure its survival, and

limited by its lack of internal development, SLORC looked outside Burma for new and

alternative financial resources. It found China. Since then, China has become a “major

source of weapons, military training and infrastructural support” for the junta.10

While exact figures for Burma are inconsistent and unreliable, it has been reported

that its military hardware is significant, from radio equipment to missiles, from aircraft to

naval ships, all from China. Beyond military equipment, China has contributed largely to

the development of Burmese infrastructure, rebuilding and upgrading rail and roadway

5 Waltz, Kenneth N. “The Origins of War in Neorealist Theory.” Classic Readings of International Relations. Phil Williams, Donald M. Goldstein, and Jay M. Shafritz, Eds. California: Wadsworth

Publishing Company, 1994. P 41.

6 Dunne, Tim and Schmidt, Brian C. “Realism.” The Globalization of World Politics: An Introduction to International Relations. John Bayliss and Steve Smith, Eds. New York: Oxford University Press, 2006. P.

170.

7 Lamy, Steven L. “Contemporary mainstream approaches: neo-realism and neo-liberalism.” The

Globalization of World Politics: An Introduction to International Relations. John Bayliss and Steve Smith, Eds. New York: Oxford University Press, 2006. P. 210.

8 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey. Vol. 37, No. 6. June 1997. P. 534.

9 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian

Survey. Vol. 34, No. 5. (May, 1994). P. 448.

10 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June 1997. P. 533.

Vol. 4 [2007] Brussels Journal of International Studies 72

systems from Yunan in South China to several ports along the Burmese coast.11

As C.S.

Kuppuswamy describes, “The strategic location of Myanmar as an entry point to the

Indian Ocean and the ostracization of this nation by the West since the military takeover

in 1988 has been taken full advantage of by China to make it virtually a China satellite in

the Indian Ocean.”12

The author goes on to describe China’s approach to Burma as one of

coddling the junta by offering military hardware at a “friendship price” in order to

ingratiate itself and receive a warmer welcome for entry into Burmese borders.13

While Burma gains from this interaction with China, and its motivation for

interaction can be explained by gains in the form of financial and developmental support,

Neorealism also lends itself, perhaps to a greater degree, to explaining China’s

motivations. China’s offering of aid allows for its increased involvement in Burma’s

economy and development. That involvement is allowing for Chinese expansion, which

reflects the notion that “the ultimate goal of the great powers, according to offensive

realism, is to gain hegemony, because that is the best guarantor of survival.”14

So how does expansion into Burma lend itself to Chinese regional hegemony? It

lends itself with outposts, aid and development. China develops Burmese dependency on

it while using Burmese resources for its own benefit. China gets timber and revenue for

manufactured goods while securing contracts for future development and revenues.15

It

secures freedom of movement for Chinese people to Burma, not Burmese people to

China, by opening the Burmese economy and helping to establish pathways to it. In

recent years, over 200,000 Chinese people have reportedly entered Burma to establish

business in Mandalay and other cities in northern Burma.16

In these ways, China gains

power, both from what it takes out of Burma and from what it puts into Burma. This

would reflect the neorealist notion that the balance of power is in favour of the initiator, if

it is accepted that China initiated this move into Burma. It can be argued, however, that

China merely responded to Burma’s looking outward for new sources of income and, in

that way, Burma initiated such a dynamic. For the purposes of this argument, it will be

noted here that the argument could be made from either side, but that the reach for

regional hegemony by China is a conclusion that is supported by evidence, regardless of

the moves that made it possible.

Supporting the argument that China is indeed pursuing regional hegemony is a

statement by the foreign minister of China, Qian Qichen, in February of 1993. During a

visit to reinforce positive relations, he was reported as having “promised increased

military and economic aid to the Burmese military regime in exchange for access to the

11 Kuppuswamy, C.S. “Myanmar-China Cooperation: Its Implication for India.” South Asia Analysis Group. Paper No. 596. February 3, 2003. http://www.saag.org/papers6/paper596.html

12 Ibid.

13 Ibid.

14 Mearsheimer, John J. “Structural Realism.” International Relations: Discipline and Diversity. Tim Dunne,

Milya Kurki, and Steve Smith, Eds. US: Oxford University Press, 2007. P 83.

15 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian

Survey. Vol. 34, No. 5. (May, 1994). P. 451.

16 Kurlantzick, Josh. “China, Burma, and Sudan: Convincing Argument.” The New Republic Online, May

11, 2006. Carnegie Endowment for International Peace. Visited November 22, 2007.

Vol. 4 [2007] Brussels Journal of International Studies 73

Indian Ocean through naval bases in Burmese waters.”17

This statement can be taken as a

reflection of China’s interest in and attempt to influence that territory in such a way as to

inch closer to India and access the Bay of Bengal, for both trading and strategic reasons.

India is one of China’s only neighbours capable of matching it in population and power.

Credibility is given to the supposition that China desires regional hegemony, or at least

to the realist idea that China’s advancement into Burma creates security issues for

neighbouring states, by India’s reaction to the Sino-Burmese relationship. In recent

years, in tandem with increasingly warm relations between China and Burma, India has

shifted its support away from opposition movements within Burma and towards the junta

itself, in an attempt to cement stronger ties.18

It does so because it is made insecure by

China’s relative gains. In a neorealist conceptualisation, China is reaching for regional

hegemony as it seeks as much power as possible in order to secure its survival.19

In

India’s alarm is support for the argument that China’s increased power would be a threat

to India’s interests and pursuit of power in a system where each state must protect itself

in order to survive.

India’s response to China’s moves are typical of what Kenneth Waltz describes

when he writes, “Excessive strength may prompt other states to increase their arms and

pool their efforts against the dominant state.”20

In this way, China could be attempting to

acquire too much power. To avoid arms races and coalitions of opposition, defensive

realists like Waltz argue that it is best for states to gain an “appropriate amount” of

power.”21

While an arms race between India and China is largely speculative, it is merely

meant as a demonstration of what could happen as a result of India’s real fear that China

is reaching for regional hegemony through Burma.

COOPERATION FOR ABSOLUTE GAINS

China, however, is not conquering or absorbing Burma. The two states are

working in a very cooperative fashion. Both give, both gain. China maintains strong

relations with the ruling junta there and blocks interference in Burmese affairs by the

international community on the grounds of sovereignty. In that way, China is helping

Burma, or at least the ruling junta, survive in the face of protests against it. Why, in an

anarchic system of states vying for survival, would such cooperation happen?

As demonstrated, Neorealism can explain many aspects of the relationship

between China and Burma. It cannot, however, account for Burma’s continuing to give

away to China its valuable natural and economic resources. Neoliberal institutionalism,

17 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian

Survey. Vol. 34, No. 5. (May, 1994). P. 450. 18 “China’s Ambitions in Myanmar.” Asia Pacific media Services Limited. First published: IISS Strategic Comments, July 2000.

19 Mearsheimer, John J. “Structural Realism.” International Relations: Discipline and Diversity. Tim Dunne,

Milya Kurki, and Steve Smith, Eds. US: Oxford University Press, 2007. P 72.

20Waltz, Kenneth N. “The Origins of War in Neorealist Theory.” Classic Readings of International

Relations. Phil Williams, Donald M. Goldstein, and Jay M. Shafritz, Eds. California: Wadsworth Publishing

Company, 1994. P 41. 21 Ibid., p. 41.

Vol. 4 [2007] Brussels Journal of International Studies 74

with its focus on absolute gains rather than relative gains, can better explain this

phenomenon. With regard to absolute gains, Burma is only interested in what it can gain

from China, not what China can gain from it or what they can gain relative to one

another.22

It follows that the revenue Burma receives from China for those resources is

more highly valued by the junta than are the resources themselves.

Like Neorealism, Neo-liberal Institutionalism holds that the international system is

one of anarchy, in which states are rational actors trying to maximise their interests. In so

doing, however, states are more interested in absolute gains than relative ones and they are

likely to cooperate if they realise mutual interests.23

To widen the understanding of Sino-

Burmese relations, it is necessary to examine the ways in which they cooperate.

In May 1993, along with Thailand and Laos, China and Burma expressed a commitment

to building a “Golden Square Highway Network.” This network would link the four

countries on the grounds of their having a mutual interest in the illegal drug trading that

happens along those borders.24

The countries agreed to approach the Asian

Development Bank, the World Bank and the UN Development Programme jointly in

order to secure loans and assistance for the project.25

This reflects neo-liberal

institutionalist notions, as summarised by Graham Allison, that “one of the

consequences of the globalisation of security concerns like terrorism, drug trafficking,

and pandemics like HIV/AIDS is the realization that threats to any country’s security

cannot be addressed unilaterally. Successful responses to security threats

require...regimes that promote cooperation among states and the coordination of policy

responses to these new security threats.”26

While no cooperative institution was

established per se, the willingness shown by these states to address shared issues does a

good deal to establish an “institution” of cooperation. This willingness was reiterated

and reinforced by China’s foreign minister, Qian Qichen, during his February 1993 visit

to “reaffirm the symbiotic Sino-Burmese relationship maintained over the past four

years.”27

According to official reports, meetings during that visit secured border trade

and economic cooperation at all levels, especially in regards to eradicating opium

production and trafficking between the two states.28

Trade is an important aspect of the states’ cooperation. Border trade between the

two countries has been estimated at close to $1 billion USD annually and has been

22 Brown, Chris with Ainley, Kirsten. Understanding International Relations. New York: Palgrave MacMillan, 2005. P. 47.

23 Lamy, Steven L. “Contemporary mainstream approaches: neo-realism and neo-liberalism.” The Globalization of World Politics: An Introduction to international relations. John Bayliss and Steve Smith,

Eds. New York: Oxford University Press, 2006. P. 214.

24 Muang, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian

Survey. Vol. 34, No. 5. (May, 1994). P. 450. 25 Ibid., p. 451.

26 Lamy, Steven L. “Contemporary mainstream approaches: neo-realism and neo-liberalism.” The Globalization of World Politics: An Introduction to international relations. John Bayliss and Steve Smith,

Eds. New York: Oxford University Press, 2006. P. 213.

27 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian Survey. Vol. 34, No. 5. (May, 1994). P. 450. 28 Ibid., p. 450.

Vol. 4 [2007] Brussels Journal of International Studies 75

thriving since formal legalisation of trade in 1989.29

Free2ing of aid from the West and

Japan in 1988 allowed China to become the largest donor of “official development

assistance” to Burma, which, in turn, gave it the strongest hand in dictating the type and

direction of its development.30

This allowed China to take an upper hand in driving funds

toward infrastructure that supports and ensures trading ease. In July 1993, Burma and

China signed six new agreements for trade and infrastructure development. As dictated by

these agreements, Burma agreed to sell timber to China, along with committing to

purchase from it 30,000 tons of rail, locomotive and spare parts and $2 million USD worth

of car parts. In exchange, China agreed to construct hotels in Rangoon and a hydroelectric

plant near the Chinese border.31

Despite the absence of an official international institution meant to govern such

teamwork, China and Burma are cooperating in areas of mutual interest for absolute

gains. Some may note an observable balance leaning in China’s favour, which would

suggest a nod back to Neorealism. To clarify, China gets timber, revenue for

manufactured goods, construction contracts, and secured future revenue from an

economy that stands open to Chinese investors and migrants. China does financially

compensate Burma, but the hotels and the hydroelectric plant could be seen as beneficial

to China as much as they are to Burma, since so many Chinese cit izens are employed

through these constructions in Burma. And as such, the financial benefit to the junta

through tourism and trade will indirectly benefit China.

This unequal distribution of gain is expressed by Donald Seekins as being

“reminiscent of relations between a European metropole and an Asian colony during the

20th

century.”32

China secures a constant Burmese demand for its products, holding Burma

captive to its supply through trade agreements, while receiving valuable resources such as

timber and precious stones. In this scenario, the cooperative agreements do allow each

country to gain what it wants, but the inequality of that gain harkens back to a neorealist

explanation of relative gains and the possibility that China is quite a bit more interested in

gaining power through expansionist moves than it is in supporting Burma for the sake of

cooperation.

With a leap back to Neorealism, it is easier to see the weaknesses of Neo-liberal

Institutionalism in explaining certain aspects of the Sino-Burmese relationship. This

weakness is only furthered by the absence of any intergovernmental institution designed to

oversee cooperative initiatives. In its defence, a neoliberal institutionalist lens speaks to

both states’ willingness to work together towards their common interests and to address

common problems. This theory also speaks to the pursuit of absolute gains,

29 Ibid., p. 449.

30 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June

1997. P. 531.

31 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian Survey. Vol. 34, No. 5. (May, 1994). P. 451.

32 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June

1997. P. 529.

Vol. 4 [2007] Brussels Journal of International Studies 76

rather than relative ones, and so explains why Burma would give so much of its value to

China or continue to participate in such an arrangement. By playing between Neorealism

and Neo-liberal Institutionalism, it becomes more obvious that a stronger evaluation is

possible if one demonstrates the flexibility necessary to incorporate understandings from

multiple theories.

FROM RATIONALISM TO CONSTRUCTIVISM

As Peter J. Katzenstein writes,

“Neorealist and neoliberal perspectives focus on how structures affect that

instrumental rationality of actors. Neorealists emphasize that the competitive

pressure of an anarchic international system is a constant in history; it determines

important types of state behaviour such as balancing. In an interdependent world, neoliberals insist, international institutions provide an alternative structural context

in which states can define their interests and coordinate conflicting policies. But the

assumption of unified state actors and a focus on an anarchical, systemic context of

states are common to both.”33

This focus on structural constraints on states’ interests does little to explain

variations in those interests over time, or deviations from predicted behaviour. Within a

scheme in which the internal dynamic of a state is irrelevant, a state’s interests are

determined solely by its position. Explaining the relationship between China and Burma

in terms of the pursuit of power, as this essay has done thus far, can explain neither the

idiosyncrasies of the relationship, nor the complexities of it.

Shedding more light on those aspects is Constructivism, a theoretical approach

that examines the socially constructed nature of the international system and its

constituent parts. Constructivists hold the idea that both Neorealism and Neoliberal

Institutionalism are `undersocialised’ in the sense that “they pay insufficient attention to

the ways in which the actors in world politics are socially constructed.”34

The way actors

see themselves and the way they see each other is not a result of an exogenous system,

meaning an objective reality separate from the actors, but rather a result of the world they

construct through shared understandings born of the process of interacting.35

In that way,

the identities of those actors and their interests change and evolve over time.

Through their interaction, actors define and understand their world. The

implication here is that knowledge, “...that is, symbols, rules, concepts, categories, and

meanings, shapes how individuals construct and interpret their world.”36

This knowledge

33 Katzenstein, Peter J. “Introduction: Alternative Perspectives on National Security.” The Culture of

National Security: Norms and Identity in World Politics. New York: Columbia University Press, 1996. Chapter 1 (no page numbers noted).

34 Wendt, Alexander. Social Theory of International Politics. Cambridge: Cambridge University Press,

1999. P. 4.

35 Barnett, Michael. “Social Constructivism.” The Globalization of World Politics: An Introduction to

international relations. John Bayliss and Steve Smith, Eds. New York: Oxford University Press, 2006. P. 259. 36 Ibid., p. 259.

Vol. 4 [2007] Brussels Journal of International Studies 77

can be divided into brute facts and social facts. A brute fact is one that does not depend

on human acceptance or agreement, like a rock or a tree; it exists regardless of what it is

called. A social fact, conversely, does depend on agreement. The boundary lines

marking territories between China and Burma are social facts because they are

dependent on each state’s recognition and acceptance. Because individuals view social

facts as granted and objective, accepting them nearly as brute facts, they work to

constrain actors’ behaviour.37

Instead of the idea that actors are free to make choices, the implication within

constructivist thinking is that, through the process of interacting, actors make choices that

“bring historically, culturally, and politically distinct ‘realities’ into being.”38

Thus, actions

may be interpreted not only in terms of power and the idea of an objective world system,

but also as a result of and shaped by interactions, both historical and present. In this way,

the relationship between China and Burma may be explained by looking at the history of

their interaction and the identities that each state has formed as a result of those

interactions.

SHAPING IDENTITIES THROUGH A PROCESS OF INTERACTION

Interactions between China and Burma began centuries ago with the start of the

jade trade. Chinese interest in Burmese jade can be traced to the seventeenth century when

the Qing Dynasty extended its domain into the territory of Burma. Since that time, the link

between Burmese jade traders and Chinese merchants has never been broken. As Mya

Maung explains, “To Chinese, jade is a symbol of protection health, and strength,

something fortunate to own and felicitous to give and has been carved into ritual objects

and ornaments for close to 7000 years.”39

Furthermore, Chinese interest in Burmese jade

“has been and will remain one of the main determinants of the symbiotic Sino-Burmese

relationship.”40

The action of the jade trade, then, and even more so the action of trade

itself, from a constructivist standpoint, works to shape the identities and interests of both

states.

Jade is not the only link between the two states that defines their relationship.

What can be called a shared common view of the world, or a shared perception, is

central to the relationship. Both leaderships of China and Burma have placed “defense of

national sovereignty and independence” as foundational to their respective foreign

policies, while the “urgency of these priorities has promoted a siege mentality that

combines autocratic rule at home with extreme defensiveness abroad” for both states.41

37 Barnett, Michael. “Social Constructivism.” The Globalization of World Politics: An Introduction to international relations. John Bayliss and Steve Smith, Eds. New York: Oxford University Press, 2006. P.

259.

38 Fierke, K. M. “Constructivism.” International Relations: Discipline and Diversity. Tim Dunne, Milya Kurki, and Steve Smith, Eds. US: Oxford University Press, 2007. P. 169.

39 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian Survey. Vol. 34, No. 5. (May, 1994). P. 452.

40 Ibid., p. 452.

41 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June

1997. P. 532

Vol. 4 [2007] Brussels Journal of International Studies 78

Also, the “isolation and condemnation experienced by both countries in the wake of the

Yangon massacre of 1988 and the violent suppression of the Tiananmen Square protests

the following year helped to draw them closer together.”42

After these similar

experiences, a potential ally in China was spotted by SLORC, which moved quickly to

establish with China a relationship of “relatives born together (swemyo pauk hpaw).”43

A commonality between the two rests not only in the shelter they may provide one

another from the international community, but also in a shared perception of personal

history. Beijing’s position cites foreign exploitation as the reason China has fallen behind

in the contemporary world, while Burmese leaders “have viewed the period of British

colonial domination from the 19th century as the source of most of the country’s

contemporary problems, ranging from poverty and underdevelopment to ethnic

conflict.”44

While no formal colonisation took place in China, the perception of such is

reflected in the words of Rong Yiren, Vice President of the People’s Republic of China,

in a keynote address given in October 1994:

“In the history of human development, the Chinese nation has made many brilliant contributions to world civilization. In modern times, however, China was reduced to a

colony and semi-colony for a time, as a result of the decadence and incompetence of the government as well as the aggression and bullying of imperialist big powers.

Consequently, China lagged behind the developed countries...”45

With these perceptions noted, there are some similarities. There is a shared history,

perceived or actual, of colonial domination and exploitation by the West, contributing to a

common worldview between both China and Burma.46

Both regimes have tried to fend off

international criticisms of their domestic affairs by “arguing the inappropriateness of

Western-style concepts of human rights and democracy to the Asian context.”47

A defence

of different norms and understandings of the concept of human rights and of

appropriateness are used to preserve sovereignty and to prevent international intrusion into

domestic affairs. More than that, though, that defence suggests that these two states are

united by what they are commonly not. Their identities or narratives constitute their

interests, on the basis of which both states will make choices.48

The norms accepted by

China and Burma are shared “not only because of the benefits and

42 “China’s Ambitions in Myanmar.” Asia Pacific media Services Limited. First published: IISS Strategic Comments, July 2000. http://www.asiapacificms.com/articles/myanmar_influence/

43 Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper Burma.” Asian

Survey. Vol. 34, No. 5. (May, 1994). P. 448. 44 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June

1997. P. 532.

45 Yiren, Rong. “China: Moving towards the twenty-first century.” China in the Twenty-First Century: Politics, Economy and Society. Fumio Itoh, Ed. Tokyo: United Nations University Press, 1997. P. 4.

46 Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey, Vol. 37, No. 6. June 1997. P. 531.

47 Ibid., p. 533.

48 Wendt, Alexander. “Anarchy is what States Make of it: The Social Construction of Power Politics.”

International Organisation, Vol. 46, No. 2 (Spring, 1992). P. 366.

Vol. 4 [2007] Brussels Journal of International Studies 79

costs for doing so but also because they are related to a sense of self.”49

As a result, it is

appropriate for China to defend Burma against international intervention, and vice versa,

because their shared history, perceptions and norms, resulting from their interactions,

have become an embedded part of each state’s identity and interest.

However, as China seeks further economic development through increased

interaction with the international community, its identity is torn between that part which

identifies with Burma and that part which identifies itself as a legitimate great power in

the international system. While one could argue that, as a great power, a state is

impervious to external influence, the reality is that China may become more susceptible

to insinuations that turmoil in Burma relates to turmoil for the Chinese economy. If China

were to believe that it could be affected financially by despair in states where it is heavily

invested, the greater the likelihood that Beijing would “try to rein in its nasty client

states.”50

There are already signs of this happening. As SLORC has become more

unpredictable, Chinese officials have contacted human rights activists working on

Burmese issues, as well as attempted to discuss reform with junta officials themselves.

China has also begun to push the junta to improve dialogue with opposition members

within Burma. By demonstrating a willingness to nudge the junta in these ways, China is

acting as the liason between Burma and the rest of the world, in concert with its “us”

identification with Burma, as well as moving towards identifying with its aspirations to be

a major world power by demonstrating that it also identifies with the norms and meanings

accepted and understood on the international stage.

In this way, the relationship between China and Burma is a springboard for an

intentional transformation of identity. China’s interest is to be seen as a more legitimate

and powerful player in the international system and so its actions are intentional, seen as

such because “actors can engage in self-reflection and practice specifically designed to

transform their identities and interests.”51

Reaching out to human rights groups in Burma

and discussing reform with leaders there can be seen as a product of China’s narrative as

well as the evolution of its identity. Not only contributing to a reshaping of its own

identity, China is also functioning to reshape the realm of appropriate interaction between

the two states by expanding the methods by which they interact and the issues in which

they engage one another. It is certain that identities are evolving, although it remains to be

seen what sort of impact Chinese actions will have on Burmese officials, or to what extent

Burma’s identity and interest will shift in time with China’s. More time will be needed to

evaluate the implications of shifts in behaviour within the process of interaction between

the two states.

49 Barnett, Michael. “Social Constructivism.” The Globalization of World Politics: An Introduction to

international relations. John Bayliss and Steve Smith, Eds. New York: Oxford University Press, 2006. P. 267.

50 Kurlantzick, Josh. “China, Burma, and Sudan: Convincing Argument.” The New Republic Online, May

11, 2006. Carnegie Endowment for International Peace. Visited November 22, 2007.

http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=18329&prog=2ch,2gp&proj=2sa 51 Wendt, Alexander. “Anarchy is what States Make of it: The Social Construction of Power Politics.” International Organisation, Vol. 46, No. 2 (Spring, 1992). P. 419.

Vol. 4 [2007] Brussels Journal of International Studies 80

CONCLUSION

In Mearsheimer’s anarchic neorealist system, China and Burma are pursuing

power in order to gain advantageous positions. China provides Burma with military

supplies and the economic means to develop; increasing Burma’s strength. Burma

provides China with resources for its growing population and strategic positions towards

the Bay of Bengal. As China uses Burma towards its goal of regional hegemony, India

reacts to the perception of a security threat by shifting its relations with the Burmese

junta from cold to much, much warmer. While China’s actions may be more aptly

described by Neorealism, the theory does lend itself to understanding both China’s move

into Burma and Burma’s involvement with China.

But, Neorealism cannot account for the amount of cooperation that goes on

between the two states. Despite the absence of an intergovernmental institution as such,

these two states co-exist in a supportive fashion, addressing common problems and

designing trade agreements. Here, Neoliberal Institutionalism strengthens an

understanding of this relationship, as it posits that these two states would indeed work

together cooperatively if and when they recognise that doing so would be beneficial. And

so, opening the door to a second theory enables a deeper understanding of the relationship

by explaining nuances that cannot be explained by the first.

Building upon rationalist suppositions by suggesting that the very world they

describe is one constructed through social interactions of states, rather than one of an

objective reality, Constructivism exposes the shared meanings and perceptions between

Burma and China. These shared understandings act as a foundation for interaction,

shaping it through a process over time. These meanings and definitions act as a bond,

unifying the states with similar identities and contributing to the evolution of those

identities and their interests.

Historically rooted in the trading of gems and a common perception of foreign,

Western exploitation, the symbiotic relationship between China and Burma is one that

cannot be fully understood without examining how those roots serve to define parameters

for appropriate behaviour between the two states. A study of their interaction is much

better informed by an exploration of the possibility that each state might act for reasons

beyond strict motivations for power. Better still, a truly rigorous study is developed by

considering that aspects beyond the pursuit of power may not only shape a state’s

behaviour, but also define what a state considers power, how it determines its interests or

how it operates in relation to other states when pursuing them.

As with the evolution of International Relations theories themselves, the dynamics

of interaction shift with each new turn; reinforced or weakened, reshaped or redefined. By

drawing upon multiple theories, more light is shone on the dynamics between state

identities, state interests and state interactions. Even more than that, light is shone on the

strengths and weaknesses of the theories themselves. Theories, such as international

system theories, are not exogenous to scholars, but, in fact, designed by them, framed by

the same shared meanings and understandings that create the system in which they live.

For this reason, it can only be considered academically responsible to apply the most

Vol. 4 [2007] Brussels Journal of International Studies 81

rigorous and flexible application of theory, to test each theory, even to question the

theory’s legitimacy and normative functions, in order to further a truly enlighting

examination of the international system.

Vol. 4 [2007] Brussels Journal of International Studies 82

Bibliography

Brown, Chris with Ainley, Kirsten. Understanding International Relations. New York:

Palgrave MacMillan, 2005.

Barnett, Michael. “Social Constructivism.” The Globalization of World Politics: An

introduction to international relations. John Bayliss and Steve Smith, Eds. New

York: Oxford University Press, 2006. P. 252-269.

“China’s Ambitions in Myanmar.” Asia Pacific media Services Limited. First published:

IISS Strategic Comments, July 2000.

http://www.asiapacificms.com/articles/myanmar_influence/

Dunne, Tim and Schmidt, Brian C. “Realism.” The Globalization of World Politics: An

introduction to international relations. John Bayliss and Steve Smith, Eds. New

York: Oxford University Press, 2006. P. 162-183.

Fierke, K. M. “Constructivism.” International Relations: Discipline and Diversity. Tim

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Katzenstein, Peter J. “Introduction: Alternative Perspectives on National Security.” The

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Columbia University Press, 1996. Chapter 1 (no page numbers noted).

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Republic Online, May 11, 2006. Carnegie Endowment for International Peace.

Visited November 22, 2007.

http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=18329&p

rog=2 ch,2gp&proi=2sa

Kuppuswamy, C.S. “Myanmar-China Cooperation: Its Implication for India.” South Asia

Analysis Group. Paper no. 596. February 3, 2003.

http://www.saag.org/papers6/paper596.html

Lamy, Steven L. “Contemporary mainstream approaches: neo-realism and neo-

liberalism.” The Globalization of World Politics: An introduction to international

relations. John Bayliss and Steve Smith, Eds. New York: Oxford University

Press, 2006. P. 207-224.

Maung, Mya. “On the Road to Mandalay: A Case Study of the Sinonization of Upper

Burma.” Asian Survey. Vol. 34, No. 5 (May, 1994). P. 447-459.

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Mearsheimer, John J. “Structural Realism.” International Relations: Discipline and

Diversity. Tim Dunne, Milya Kurki, and Steve Smith, Eds. US: Oxford University

Press, 2007. P. 71-87.

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Online. http://www.atimes.com/atimes/Southeast Asia/EF20Ae02.html

Seekins, Donald M. “Burma-China Relations: Playing with Fire.” Asian Survey. Vol. 37,

No. 6 (June 1997). P. 525-539.

“United Nations Member States.” United Nations website.

http://www.un.org/members/list.shtml

Waltz, Kenneth N. “The Origins of War in Neorealist Theory.” Classic Readings of

International Relations. Phil Williams, Donald M. Goldstein, and Jay M. Shafritz,

Eds. California: Wadsworth Publishing Company, 1994. P. 39-47.

Wendt, Alexander. “Anarchy is what States Make of it: The Social Construction of Power

Politics.” International Organisation. Vol. 46, No. 2 (Spring, 1992). P. 391 -425.

Wendt, Alexander. Social Theory of International Politics. Cambridge: Cambridge

University Press, 1999.

Yiren, Rong. “China: Moving towards the twenty-first century.” China in the Twenty-

First Century: Politics, Economy and Society. Fumio Itoh, Ed. Tokyo: United

Nations University Press, 1997. P. 3-10.

Vol. 4 [2007] Brussels Journal of International Studies 84

An Analysis of the United States’ Freedom of Navigation Program in

relation to International Regimes. Norms and National Interest

Nkeiru Joe1

Especially focusing on the International Law of the Sea, where a positivist approach to

International Law methodology is an established mode of analysis, this paper in

addressing the tension between International law and International relations will argue

that the two are not mutually exclusive. This essay not only highlights this symbiosis but

also shows how inseparable a discourse in the separate branch of the International Law

of the Sea is to International Relations. The author will argue that both must exist in

concomitance for the development as well as appreciation of both disciplines.

INTRODUCTION

Judge Alvarez in the Corfu Channel case posited that law and politics exist in

concomitance and a consideration of one without the other is a great disservice to law and

politics. Pure law does not exist: law is the result of social life and evolves with it; in

other words, it is, largely, the effect of politics especially of a collective kind-as practised

by the States.2 This policy-orientated view will be the focus of this essay’s analysis. The

author will examine a case where there is no palpable distinction between legal and

political issues. This inseparability is one that raises interesting issues in the area of

International law and International relations.

President Carter’s Freedom of Navigation (FON) Program of 1978 epitomises this

situation. In looking at the FON program, this essay will analyse the relationship between

the main actors and the political environment at that time. The author’s levels of analysis

will take a top down approach from the international political system to the state level, the

societal apparatus and the individual level. Whilst the point of this essay is not a

comprehensive analysis of these four levels, it will suggest a few ways of interpreting the

actions taken by the two main actors in this analysis. The author will create two groups of

actors in this discourse for simplicity and to highlight issues relevant to this discourse.

The first group is the United States of America (United States). This is because the United

States is the originator of the FON Program.

The second group is the United Nations Convention on the Law of the Sea

(UNCLOS). This is because the UNCLOS is a recognised international institution or

1 Nkeiru Joe holds an LLB in Law and is currently pursuing an LLM in International Law and International

Relations at BS IS where she has developed an interest in Maritime Law.

2 The Corfu Channel Case (Merits) International Court of Justice 1949 WL 1 ( I.C.J.), 1949 I.C.J. 4

§41-42 “Jurists, imbued with traditional law, have regarded international law as being of a strictly juridical

character; they only consider what they describe as pure law, to the entire exclusion of politics as something

alien to law. We must therefore beware of considering law and politics as mutually antagonistic. Each of

them should be permeated by the other”.

Vol. 4 [2007] Brussels Journal of International Studies 85

international regime.3 Note that instead of just looking at this international institution as

an actor, this essay, in seeking to analyse the nature of UNCLOS, will also analyse some

rules, norms and principles promoted by this institution. This warrants an examination of

how these norms, rules and principles influence the behaviour of units in the international

system. This grouping of actor and international regime is necessary because the FON

program by its very nature challenges the efficacy and enforceability of the UNCLOS as a

multi-lateral treaty. The FON program aims to ensure that principles such as the freedom

of navigation and the right of innocent passage are enforced unilaterally by the United

States. The UNCLOS on the other hand with its institutional, substantive and procedural

features designed to guarantee high sea freedoms4 amongst other sovereign rights to its

members conflicts with the United States’ unilateral stance in relation to law of the sea

principles. This treaty by creating guidelines in relation to delimitation of a coastal state’s

Territorial Sea, the Contiguous Zone and the Exclusive Economic Zone highlights a

growing interdependence amongst states. As well as granting navigational rights, fishing

rights to landlocked countries and a res communis regime, UNCLOS is unique because

not only does the treaty disallow reservations, but also states can initiate third party

arbitration unilaterally in the event of a dispute. The United States FON program was

formulated to exist outside the UNCLOS regime so the discourse that frames the United

States’ decisions must be examined separately.

The first section will ascertain what discourse best frames the action of the actors.

At this stage, the essay will take a rationalist approach. This ensures that one in looking at

the international system notes the behaviour of the authors as determined by the world, its

resources, capabilities and size. The material world takes precedence in a rationalist

enquiry.5 This is because a rationalist enquiry starts by posing a hypothesis about the

international system and then submitting it to a systematic enquiry.6 In looking at the

material world, the causal effect is the main concern and this will be the main concern of

this essay in examining the FON program. The essay will use the perspective of Neo-

realism with the aim of understanding why the actors made key policy decisions. Theories

that support or propose an alternative will support this analysis.

The next section will look at the tensions apparent from the Neo-realist approach.

Any weakness in that perspective will be highlighted vis-à-vis the FON program whilst

considering any tensions. The aim of this section will be to determine the extent to which

an important factor in this tension affects the other.

3 W Calsnaes et al, Handbook of IR, Sage Publishers, 2006. In pg. 195 Beth Simmons notes that currently

in International Relations scholarly literature the word Institutions has replaced regimes. As I will be

looking at literature where institutions are referred to as regimes, these terms will be used interchangeably

in this essay.

4 Sohn, L. & Noyes J (2004) Cases and Materials on the Law of the Sea. Transnational Publishers. Pg. 44

The principle of freedom of the high seas is generally recognised as the encompassing the six specific

freedoms in Art 87 UNCLOS. They include: The freedom of navigation, over flight, fishing, laying of

submarine cables, the right to construct artificial islands and the right to engage in scientific research.

5 Keohane, Robert., (1989) International Institutions and State Power; Essays International Relations

Theory. Westview Press. At page 160 Keohane in analysing how rationalist theory and reflective

approaches examines international institutions notes how a rationalist approach deterministic and contextual.

6 Ibid.

Vol. 4 [2007] Brussels Journal of International Studies 86

Thirdly, as the FON program operates to protect and enforce International Law

principles and norms, a look at the program using international law approaches is

warranted and so this section will focus upon a determination of the effects of agreements

and treaties in relation to international politics.

In conclusion, this essay proposes to contribute to my study of international law

and international relations by using contemporary theories of international relations to

look at a situation that took place during the cold-war era. The aim of this will be to

highlight the need to examine issues using various lenses and to show that mutatis

mutandis, international law and international politics are not mutually exclusive.

ANARCHY AND POWER

In interpreting the causal effects of a state’s actions, neorealism starts from the

assumption that the international system is one that is anarchic and that because of this, a

state in the international system is in a constant struggle to further as well as protect its

interests.7 If sovereignty is the constitutive element of International politics, a Neo-realist

perspective will argue that a state’s interest is vital to maintain sovereignty within the international system.

8 This interest guarantees relative gains in relation to other states.

Relative gains are necessary because the state in comparing its capabilities with other

states will ask the question “who will gain more?”9 Grieco argues that the object of this

question is power.10

The concern here is how much power and influence other states might

achieve in any cooperative endeavour.11

A state will use any means possible to ensure the

other state gains less.12

The importance of power as a tool to guarantee these gains cannot

be overemphasised. Power here becomes an indispensable tool in the relations between states and power being an essential tool of government is only feasible if it is organised

nationally.13

Having posited that state power is power par excellence, the best example of

power in the international environment is military power.14

Every state is concerned with

its military power in order to ensure that it will not falter in the event of a

7 Grieco M. Joseph (1988) Anarchy and the limits of Co-operation: A Neo-realist critique of the newest

Liberal Institutionalism. International Organisation, Vol., 42 No 3 pp 485- 507 at Page 488. Citing Waltz’s

Man State and War pp 224-238). 8 Krasner Steven (1982) Regimes and the Limits of Realism: Regimes as Autonomous variables.

International Organisation Vol. 36 No 2, 1982 Pg. 10. Here Krasner, in highlighting the inadequacies of the

Neo Realist perspective quoted Kenneth Waltz.

9 Waltz Kenneth (1979) Theory of International Politics. McGraw Hill London. Pg. 105

10 John Baylis and Steve Smith (Eds) (2005), The Globalisation of World Politics; an Introduction to International Relations. Oxford University Press. Pg. 210. 11 Ibid.

12 Ibid.

13 Carr, E.H (2001) The Twenty Years’ Crises, 1919-1939. An Introduction to the Study of International

Relations. Palgrave Publishing. Pg., 101. 14 Ibid. Pg. 102.

Vol. 4 [2007] Brussels Journal of International Studies 87

war.15

Conversely, with no threat of war, the power-status of a state with the greatest

military power will be the furthermost in comparison with other states.16

The UNCLOS negotiation took place during the Cold War period and it is obvious

that issues of military interest would have featured primarily during the negotiations. The

United States was particularly keen on ensuring that passage through strategic straits was

unhampered by the coastal state requesting prior notification before entry.17

Internationally, the United States was also keen to ensure that its freedom of navigation

was guaranteed both commercially and strategically. The principle of innocent passage

through territorial waters was also stressed by the United States. A good reason for this is

the relative gains proposition of the Neo-realist approach. The United States in ensuring

its relative gains noted the following:

The Soviet Union is a land power as most of its allies are neighbours.

The United States is different as most of its allies are in Europe and Asia

reachable by sea.

Any measure that inhibits these concerns of the United States will ultimately

affect its security and ultimately its power in the international system.18

A policy that

ensures freedom of navigation also ensures that the United States gains more in relation to

the Soviet Union. From a neo-realist perspective, this sums up the raison d’être of the

FON program. With the United States refusing to be party to the UNCLOS, the FON

program was imperative to ensure that the United States was able to exercise its high seas

freedom of navigation as well as ensuring that states conform to the law in relation to

high seas freedoms.

The decision of the United States to operate outside UNCLOS is understandable

upon examination of the ‘Pre-UNCLOS’ negotiation. The United States albeit in support

of the UNCLOS high seas freedoms disagreed with the UNCLOS on the deep-sea bed

mining stipulations. The UNCLOS in defining the rights of states according to the

international law of the sea also defined rules in relation to deep-sea nodules.19

Under the

UNLCOS system, the deep seabed (the Area) was accorded res communis status meaning

that all states are thereafter to benefit from the exploration and exploitation of such deep-

sea bed nodules. This internationally controlled system meant that developing states could

claim revenues from the exploitation of nodules even when they do not participate in its

exploration.20

The United States as a great power,21

was concerned with this

15 The author acknowledges the indispensability of other forms of power. However due to the fact the FON

program is one that operates mostly using military power, this essay will focus on military power as a

formidable tool in International law and International relations.

16 Ibid.

17 John .N. Moore. The Regime of Straits and the United Nations Conference on the Law of the Sea. 74

American Journal of International Law. 77 (1980) Pg. 83. 18 Ibid. Pg. 82. 19 Ibid.

20 Ibid. Pg.11.

21 Ibid. Carr states that the recognition of a great power is the reward for successfully fighting a large-scale

war.

Vol. 4 [2007] Brussels Journal of International Studies 88

UNCLOS stipulation. By 1967, it came to the forefront of attention that important

minerals lay beneath 220 metres in the Area and the United States had started talks on the

exploitation of the Area. The UNCLOS in making the Area the sole preserve of the

International Seabed Authority (The ISA) implied the following:

The Area cannot be claimed by any states nor can any states exercise sovereignty over it.

22

All rights to the area are vested on to mankind as a whole on whose authority the ISA can act.

23

All exploitation activities in the area shall be organised by the ISA on behalf of

mankind.

As the law in relation to the Area made it impossible for the United States to

ensure that its interests are best served, it showed its censure by opting out of the

UNCLOS. As Neo-realism is deterministic,24

starting from the anarchical international

structure, ‘pre-UNCLOS’ negotiations are evidence that self-interest led to a self-help

mentality and power is an important self-serving tool in ensuring survival.25

At a national

level, the United States intelligence agencies after conducting a study of the extension on

territorial sea claims by coastal states was of the opinion that this posed a threat to the

United States national security and the UNCLOS could not dissipate this threat.26

We

have shown earlier how anarchy in the international system played a part ‘pre UNCLOS’

(absence of authority in the international system ergo anarchy) and ‘post UNCLOS’

(relative gains). With a top down approach, it is evident how the international system

influences the national system all the way down to the individual-in this case President

Carter’s who subsequently announced the FON program. Waltz posits that looking at the

structure of the international system, no state wishes to participate in a structure by which

it will be constrained.27

The UNCLOS structure was one whose very purpose was to

constrain its subscribing parties. This is not acceptable from a neo-realist perspective

because an agreement to be part of this regime is void ab initio.28

States cannot know the

plans of the other states in relation to its interests and this ‘not knowing’ will lead to

cheating and an ultimate collapse of this constraining structure.29

Contradictorily, because

anarchy defines the system, anarchy leads to order.30

As the international system ‘pre-UNCLOS’ lacked an overarching authority in

terms of enforcement of law of the sea principles, the United States was compelled to

play power politics by acting selfishly. The FON program in enforcing these principles

22 The United Nations Convention on the Law of the Sea Article 137. 23 Ibid. Article 137 section 2.

24 Kenneth N. Waltz, Theory of International Politics, 1979. McGraw-Hill London. Pg. 73.

25 John Baylis and Steve Smith (Eds) (2005), The Globalisation of World Politics; an Introduction to

International Relations. Oxford University Press. Pg. 209.

26 William Aceves. The Freedom of Navigation Program. 19 Hastings Int’l& Comp.L.Rev 259 at pg. 278. 27 Kenneth Waltz. Theory of International Politics (1979). Pg. 91.

29 Grieco M. Joseph (1988) Anarchy and the limits of Co-operation: A Neo-realist critique of the newest

Liberal Institutionalism. International Organisation, Vol., 42 No 3 pp 485- 507 at Pg. 487.

30 Kenneth Waltz. Theory of International Politics (1979). pg. 113.

Vol. 4 [2007] Brussels Journal of International Studies 89

had two main functions. Firstly, it was to insure United States freedom of navigation and

over flight. Secondly, it acted as an enforcement body whose duty was to check if states

were adhering to the law in relation to territorial sea claims. This is important because

states can claim excessive territorial sea and as a result effectively close off a sea path for

other states or to pass or impose laws on areas that were hitherto in the high sea

corridor.31

Therefore, in a case where a state has claimed more than 12 nautical miles as

its territorial sea32

two things can happen if states ignore this action. Firstly, the act of

ignoring can be interpreted as custom and silence as tacit agreement.33

Secondly, the state

can effectively close of that part of the high seas thereby hampering freedom of

navigation or making navigation conditional on the coastal state’s legislation. The FON

program prevents any of these outcomes by enforcing the law in relation to navigational

freedom, its claim is that this freedom is already part of international custom and

therefore exists outside the remit of treaty law.

This enforcement aspect of the FON program took two forms. The first was

diplomatic and the second was operational. The operational aspect of the FON further

supports the Neo-realist argument that the distribution of power is the key for

understanding international decisions taken by states. Here the United States -- keen to

assert its military prowess -- sends its ships to areas where states have claimed excessive

territorial sea. These ships sail into these zones in accordance with the rule of innocent

passage, to show that the United States is not in support of the extension and will not be

taken to have tacitly agreed to such claims. However, these operational assertions also

highlights the fact the United States as well as keen to ensure its interests are not

compromised, is also mindful of the importance of legislative International law in relation

to Customary International Law. This positivist view on the principles of international

law is evidenced in the United States administration stressing that the FON program

operates in accordance with already established Customary International Law as codified

by UNCLOS.34

Treaties can become part of customary law if the requirement of Opinio

Juris is met.35

Opinio Juris is the subjective factor where a state acts in the assurance that

its action is supported by the rule of law.36

With this in mind, the US was

31Article 2 & 3 of the UNCLOS state that in relation to territorial sea claims states can only claim a

maximum 12 nautical miles of territorial seas. In instances where a state is less than 24nm in width, High

Sea-lanes, flag state jurisdiction as well as innocent passage is guaranteed under the UNCLOS regime.

32 For Example, in 1947 Peru extended its area of exclusive jurisdiction to 200 nautical miles!

33 The North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; FRG v. The

Netherlands) ICJ Rep 1969 3, International Court of Justice. Para 75- 77. Here the ratio of the judgment

noted that when an act becomes settled practise and states feel that this act is rendered obligatory by law, a

Customary International law is created.

34 Finn Laursen. Security versus Access to Resources: Explaining a Decade of US Ocean policy. World

Politics Vol. 34, NO. 2 (Jan 1982) pp 197- 229. At 201. Here Finn talks about US Submarine launched missile as a major part of US strategic deterrent. A major part of US maritime policy is the free use of the

oceans and due to various strategic reasons, the US argues that this principle has sufficient state practise

thereby making it part of customary international law .This and many more superpower activities makes the

ocean an important strategic tool.

35 M. Akehurst, ‘Custom as a Source of International Law’ (1974-1975) 47 British Year Book Of International Law 53. Para 5.

36 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; FRG V. The Netherlands) ICJ Rep 1969, Pg., 3, Para 77 is the definitive case on Customary international law. This case defined the

two aspects of Custom; State practice and Opinio Juris. Article 38 of the Statute of the International Court

Vol. 4 [2007] Brussels Journal of International Studies 90

keen to ensure that states do not make maritime zone claims that become part of

customary international law.37

Interestingly, International Law in relation to the sea raises factors significantly

different to landed territory. Looking at the deep-sea bed issue, the difference in the

interpretation of issues is noticeable. During the pre-UNCLOS negotiations, state interest

in the nodule in the Area was evidenced in the large-scale investment that was estimated to

take place.38

US companies during the negotiations had started talks on mining rights.

However, financial institutions would not be party of any investment without a law of the

Sea treaty as a guarantee of rights.39

These companies waited for the decision in relation to

the Area before adjourning the signing of contracts. This was due to the importance of

legal title in relation to maritime issues. With regard to territorial disputes affecting land,

where there is a dispute over title to land, both parties must agree to the dispute settlement

procedure.40

Even in third party adjudication like arbitration, the consent of both parties is

still a prerequisite.41

In addition, despite Article 2(4) of the United Nations charter, force

continues to be used in settling territorial disputes or possession of title. Therefore,

although legal title cannot be acquired by forceful possession according to international

law, possession satisfies a prima facie claim of title42

. In maritime law, possession is not an

end in itself. A disputed zone is usually sought because of what it can produce for the

coastal state. In landed territories a states might use its military might to ward off intruders

but third party affirmation is mostly needed in maritime issues.43

A state cannot close off

an exclusive economic Zone (EEZ) based by only possession.44

Only with legal title can a

state market its resources to third party states. In addition, third

of Justice 1945 lists the sources of International law. Customary international law is one of the sources of international law and derives from the practise of states. 3 7 Will iam Aceves. The Freedom of Navigation Program: A Study of the Relat ionship

between Law and Politics, 19 Hastings Int ’l & Comp. L. Rev . 259 pg.284-285.

38 Lea Brilmayer, Natalie Klien. Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator. 33 N.Y.U. J. Int'l L. & Pol. 703.Pg 737. The US mining Industry estimated that seabed-mining companies would need to spend $1 billion per mine site prior to the commencement of commercial recovery.

39 Ibid.

40http://www.icjcij.org/documents/index.phpFp1=4&p2=2&p3=0&PHPSESS

ID=97695b80b3e954425bdb8 a43bd145825#CHAPTERD II .

Visited on January 7, 2007 at 11:41 GMT+1 .Article 36 of the International Court of Justice Statute is clear

on the principle of compromise. Parties must accept and refer a dispute to the court before it can adjudicate. 41 Lea Brilmayer, Natalie Klein 33 N.Y.U.J. Int’l & Pol 703 at pg. 741.

42 Article 2(4) is the UN prohibition on the use of force with self-defence and humanitarian intervention as

the two exceptions to this rule. However, states practise suggest otherwise. There are countless examples

of the use of force in international relations. Israeli occupation of the West Bank and the US invasion of

Iraq all do not satisfy the self-defence exception. Neither has the humanitarian intervention argument

being accepted as state practise. Force has also been used in other contexts. A recent example would be

the dissolution of the SPFRY into states. The states claimed that that they were exercising the principle of

self-determination although the Badinter Commission stated that the roman law principle of Uti

Posssidetis be used to divide the territories by the administrative lines of the old republics. Self-

determination could not be applied here because it called into question the rights of the Bosnians who also sought to establish territory of theirs.

43 Lea Brilmayer, Natalie Klein 33 N.Y.U.J. Int’l & Pol 703 at pg. 741.

44 The EEZ according is the financially rich part of a coastal states maritime zone. The Continental shelf,

which is located in the EEZ, is rich in oil and gas. The rest of the EEZ is rich is living resources like fish.

Article 73 and 83 of UNCLOS govern this area.

Vol. 4 [2007] Brussels Journal of International Studies 91

party power is seen in UNCLOS where states can unilaterally commence proceedings

against a state under the Section 2 Part XV of the treaty. Also worth noting is the

improbability of mutiny. There is no advantage in claiming legal title to an area ruled to

belong another. The whole point of legal title in the law of the sea is for a state to be able

to claim the resources in the zone for mostly economic purposes.45

Once confirmed as the

legal owner, the coastal state can then market the resources. In the law in relation the

Continental Shelf and the EEZ,46

legal title is vital in order to be able to market the living

resources of oil and gas47

or grant licence to non-coastal states interested in those zones.

This highlights two facts. Firstly, without legal title, a state cannot market the resources

and legal title ensures non-encroachment into one’s EEZ by other states. Secondly, third

party opinion does matter in maritime law than in territorial sovereignty as maritime title

means the ability to then sell the resources.48

This is a direct antithesis to the Neo-realist argument about the ineffectiveness of

International Law in international politics. UNCLOS shows that where the legal title of

maritime zones (especially the resource-rich zones) is the issue, states have no qualms

with partaking in rules regulating its use. Looking at law of the sea cases in International

Law, there is a marked difference between cases of continental shelf delimitation and flag

state jurisdiction. Brilmayer comments that the reason for this is not so much the fact that

the marketable title is valuable but that without marketable title maritime areas are of

minimal use.49

THE RECONCILIATION: SYSTEM. ACTORS AND OUTCOMES

The United States albeit a belligerent participant was a major participant in the

UNCLOS treaty negotiation. The hypothesis that self-interest in terms of power is not the

overarching framework for explaining the rationale behind the actions of the actors is

proven by an examination of the outcomes of United States unilateral enforcement of high

sea freedom.5°

The Bumping incident of 1988 is a good example of this. This incident is

one of the confrontations involving the United States whilst carrying out its operational

assertions.51

The United States argued that the Soviet Union had violated the

45 Political and geographical purposes are also necessary but economically the resources benefit the states.

For instance, if there is no economic benefit from the EEZ, states will not be so keen as to exclude or claim

more than they should.

46 Article 56 UNCLOS looks at the rights of the coastal states, its rights to licence the EEZ and Article 61 and 62 looks at the conservation and utilisation of the living resources in the EEZ.

47 The Commission of the Outer Limits of the Continental Shelf established by UNCLOS is obligated to give coastal states recommendation on the limits of their continental shelf. The US recognised in its leasing

treaty of the Western Gap to Mexico the article regarding the continental shelf with emphasis on Article 82.

This article of UNCLOS requires states exploring beyond the limits of its continental shelf to make royalty

payments to be made through the maritime authority.

48 Lea Brilmayer, Natalie Klien. Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator. 33 N.Y.U.J. Int’l. & Pol.703. Pg. 748.

49 Ibid. pg. 761. In addition, delimitation of continental shelf ensures that a state knows which resources belong to it. Flag state jurisdiction deals with sovereignty of the vessel. The importance of delimitation in

comparison to flag state jurisdiction shows what states consider importance in maritime law.

50 This is the Neo-liberal challenge to Neo-realist approaches. 51 The Gulf of Sidar Incident with Libya is another example.

Vol. 4 [2007] Brussels Journal of International Studies 92

customary international right of innocent passage by virtue of the 1983 decree where the

Soviet Union designated specific sea-lanes for warships.52

The Yorktown and Caron ships

in asserting the principle of innocent passage entered Soviet Union’s territorial sea. The

shouldering of the US ships by the Soviet Union caused much consternation between the

superpowers but most importantly lead to both nations signing bilateral agreements in

1989.53

In fact, the incident became a means through which both nations initiated talks for

corporation.54

The two nations afterwards agreed to the Article 19 stipulations in

UNCLOS on the rules of innocent passage.55

It is evident here that contrary to the realist

approach, which in this case would predict more tension between both parties and power

politics, both parties recognised that power can take other forms and is not just the

capabilities of a state but can be seen as control over outcomes.56

The Neo-liberal approach accepts the anarchic state of the international system

but notes that the costs of running the FON program in the light of new claims of

territorial sea and the resulting conflict call for a broader perspective. This

interdependence framework as developed by Keohane and Nye provides us with a

different perspective in this analysis. Starting from the premise that the international

system is anarchic, the Interdependence approach stresses the presence of other actors

and introduces the concept of absolute gains. Applying this to the FON program, the

United States in acknowledging that the principles codified by UNCLOS but having a

different opinion in relation to the Area highlights its sensitivities and vulnerabilities

with regard to the Law of the Sea. With respect to the ocean, bearing in mind that the

increase in oil prices in the 1970s affected the United States economy, its interest in the

Area is a reflection of its sensitivity in terms of raw materials like Nickel, Cobalt and

Magnesium.57

Opting out of the regime highlights the sensitivities of the United States

Even more recent is the 8 January 2008 incident in the Persian Gulf between the United States Navy and the

Iranian Navy. The Pentagon on the 8 January released footage of the altercation between the states’ navies.

The US was on a routine patrol of the region, exercising its right of navigation when the Iranian Navy

threatened them. This altercation did not escalate as the Iranian Navy retreated. 52 John C. Hilt, Oceans Law and Superpower Relations: The Bumping of the Yorktown and the Caron in the

Black Sea. 29 Va. J. Int’l L. 713 at Pg. 728. The Decree set out five traffic separation schemes through

which warships can travel two in the Baltic, two in the Sea of Okhotsk and one in the Sea of Japan. This is a

violation of the right of innocent passage in particular and the freedom of navigation in general.

53 They are the agreement on the Prevention of Dangerous Military Activities and the Uniform

interpretation of the Rules of International Law Governing Innocent Passage.

54 John C. Hilt, Oceans Law and Superpower Relations: The Bumping of the Yorktown and the Caron in the Black Sea. 29 Va. J. Int’l L. 713 at pg. 741.

55 Article 19 UNCLOS states that Passage is Innocent as long as the ship does not threaten the coastal state

with the use of force. Passage is peaceful as long as it is not peace and security to the coastal state. Article 20 states that underwater vessels need to notify coastal states. Article 22 states that sea-lane designation

must be on the recommendation of the International Maritime Organisation.

56 Robert Keohane and Joseph Nye, Power and Interdependence, 2nd edition. Harper Collins. (1989) at page

11.

57Finn Laursen, Security versus Access to Resources: Explaining a Decade of U.S. Ocean Policy. World

Politics, Vol. 34, No. 2. (Jan., 1982), pp. 197-229 at pg. 207 Mr. Larsen notes that the US imports most of

its nickel, cobalt and magnesium therefore its interest in the sea bed issue was to provide itself with national

sources of these minerals thereby reducing its sensitivity and its vulnerability to price hikes. Keohane and

Nye also noted this in Power and Interdependence. If it costs the US more to obtain substitutes to these minerals then the US is vulnerable but if it can reduce its dependence on imports of these minerals then it is

less sensitive to outside influences.

Vol. 4 [2007] Brussels Journal of International Studies 93

even more because the tenure of a maritime zone is one that cannot be achieved

unilaterally.58

We have seen earlier how a state’s maritime zone exists by its very nature

to exclude other states from encroaching on its sovereign rights. With the UNCLOS, the

United States can secure its rights and freedoms without the transactional costs of the

FON program.59

Conversely, it can be argued that the FON program albeit outside the

UNCLOS regime provides an enforcement mechanism for the norm of innocent passage

of ships in particular and freedom of navigation in general. From the inception of the

FON, the United States has consistently stated that the program operates in accordance

with treaty law as codified in the UNCLOS. In fact, in 1983 President Reagan again

outlined the program as initiated by his predecessor as one that will be “consistent with

the balance of interests reflected in the UNCLOS”.60

Supposing, arguendo, that the focus is widened beyond the acceptance of the

international system as a given, the result is a change in outcome. An examination of

these outcomes shows that external factors like rules, principles and norms influence the

behaviour of states in the international system. In examining the discourse that frames the

FON, considerations like economic gains, the growing naval power of developing states

such as China compared to the decreasing power of the United States naval fleet might

highlight among other issues, a system whereby state interest is conditioned by external

factors. We have shown by looking at the FON program and its relationship with

UNCLOS that causal factors such as power and self-interest do not always produce the

predicted result of the domination of power politics. The reason for this cooperation is

necessary to further examine the behaviour of actors. Keohane stresses that cooperation

here does not mean harmony but an instance where the action of separate individuals or

entities are brought into conformity through a process of policy coordination.61

For

example, looking at UNCLOS, cooperation takes place when there is an incentive for

participating states to change their policy in conformity with the rules. In the case of

harmony, there is no incentive. The role of institutions here is key as they exist to

facilitate this cooperation between states. The issue-area is another factor aiding

coordination. The regime of the sea by its very nature is very complicated and needs

coordination.62

This role of institutions in international politics highlights the tension

between power on the one hand and norms on the other.

In explaining why international regimes bridge the gap between the causal factors

and behaviour, Krasner defines regimes as principles, norms, rules, and decision-making

58 Ibid. pg. 208.

59 George Galdorisi. The United Nations Convention on the Law of the Sea: A National Security

Perspective. 89 American Journal of International Law 208 at page 210. Galdorisi listed some of the

transactional costs of the Program stressing the benefits of joining the UNCLOS regime. Since the inception of the FON program, United States averages forty operational assertions per year.

60 Mirian Nash Leigh, In Contemporary Practise of the United States Relating to International law 84

AMJIL 239 at pg. 242. Citing the Dept. of State File No. P89 0125 2147.

61 Robert O. Keohane, International Institutions and State Power: Essays in International Relations Theory, Westview Press.1989. at Pg. 159.

62 John Baylis, James Wirtz et al. Strategy in the Contemporary World. (2002). Oxford University press. At

Page 115. The sea is pivotal to economic development, industrial development and was. Over 70% of the

world’s surface is covered by ocean. More than 90% of world trade travels by sea. The majority of the

world major cities lie within 200km of coastline.

Vol. 4 [2007] Brussels Journal of International Studies 94

procedures around which actor expectations converge in a given issue-area.63

However,

with the promise of gains through cooperation, it is necessary to ascertain what kind of

gains exists. According to the rational functionalist framework, these gains are purely the

transactional costs of international relations.64

This means that ensuring that problems of

trust are mitigated is a good reason for cooperation. Participation in the UNCLOS

regimes leads to situations whereby the job of monitoring, interpretation and enforcement

is transferred to UNCLOS and because the treaty covers various maritime zones, the

parties shift these costs to the regime. The problem with the functionalist perspective is

that it only explains why states might want to be part of the institution. It does not

provide any insight in relation to the effects of these institutions on state behaviour. The

answer is seen in the power of norms. Kratochwil argues that in order to determine

whether norms are able to constrain a state’s behaviour one has to determine the

effectiveness and robustness of a regime or international institution.65

To clarify these

characteristics in terms of UNCLOS, effectiveness is evident where participation in the

regime leads to the realisation of those goals that would not be possible unilaterally.

UNCLOS has a compulsory jurisdiction in relation to the settlement of disputes. States

failing to reach an agreement in the event of a dispute are subject to the compulsory

jurisdiction of the Annex XV Tribunal. This is a gain that is impossible outside the

regime. Robustness is the ability of the regime to withstand challenges of change. The

UNCLOS regime satisfies this criteria in that it has been able to maintain its most

important norm, that of freedom of navigation in the high seas notwithstanding the

inclusion of the new maritime zone of the EEZ.66

POWER VERSUS REGIMES: AN INTERNATIONAL LAW AGENDA

Regimes are arguably a manifestation of power politics. Here the hegemonic

perspective sees the regime as a tool used by a state to ensure that its interests are

protected.67

This hegemonic stability approach lacks substance in terms of evidence in

state practice. The approach assumes that powerful states are part of the regime because of

self-interest but the United States is not party to UNCLOS because the deep seabed

mining rules was against United States interests. This approach will argue that power is

used in the bargaining process to determine the nature of the regime itself. This is not a

sufficient approach for explaining the fact that in the law of the sea regime the landlocked

63 Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables. International Organisation, Vol. 36, No.2, International Regimes (Spring 1982) pp. 185-205 at Pg. 186.

64 Powell Robert (1994) Anarchy in International Relations Theory: The Neorealist- Neoliberal debate. International Organisation Vol., 48 No2 pp 313-344 at Pg. 338.

65 M Byers et al. The Role of Law in International Politics. OUP. 2000. At Page 53, Kratochwill cites Robert

Powell’s definition of the two terms taken from Robert Powell, ‘Anarchy in International Relations Theory’ (1994) 48 International Organisation 313.

66 Before the 1982 UNCLOS, there was no established EEZ zone. This was raised during the UNCLOS 1982 negotiations in the light of the Truman proclamation regarding control living resources in near to United

States coast. The EEZ is now governed by the regime. States are allowed to claim 200 nautical miles from

their baselines as EEZ.

67 Keohane, Robert (1982), Demand for International Regimes. International Organisation Vol., 36 No., 2 Pg. 326. Here Keohane explains the hegemonic approach as an assumption that the concentration of power

in one dominant state leads to the development of a regime with the aim of serving its interest.

Vol. 4 [2007] Brussels Journal of International Studies 95

states gain in terms of fishing rights and navigational rights as well as freedom to lay

pipelines and underwater cables in the maritime zones of coastal states.

The UNCLOS norms determine the interest of states because of its substantive

component as a regime. The core of every international regime is the collection of rights

and rules.68

These rights and rules give the international regime the quality of a legalised

institution and this makes its rules those norms that constrain states. Institutions like the

UNCLOS bind states because they are perceived to be legal. This was the precise point

acknowledged by the United States administration. Both the Carter and Reagan

administration stressed that the FON program was operating on the basis of Customary

International and Treaty law.69

The customary aspect of International Law may be

observed in the United States’ promotion of the right to freedom of navigation and the

right of innocent passage and the treaty law aspect in terms of United States compliance

with the maritime zones as defined by the constitution. The proliferation of adjudicatory

bodies in just the UNCLOS regime alone shows that law, as a constraining force, is

apparent in international politics70

The New Haven School of legal methodology argues

that this power of the law lays in the legal rule71

. This approach moves away from legal

positivism where the emphasis is on the law as it is with states as the main actors,

manifested in terms of treaties and sanctions. The New Haven approach notes that the

regime institution does not fall into the positivist trap because it creates a normative

aspect to international law in which flexibility in the light of new actors in international

politics is a given.72

The New Haven framework views International Law as a process of

decision-making in which actors (not just states) clarify and implement their interests.

Here the emphasis is not just on the action of the actors but also on what the actors say in

their policy statements. This has been particularly helpful in looking at the FON program

where the United States stated its observance of UNCLOS as well as showed compliance

by some of its actions.

CONCLUSION

This essay started by looking at an international relations issue using an influential

principle of international relations discourse. We have seen how this approach has not only

highlighted other issues but has also shown the theory as inadequate in light of outcomes

and non-state actors. This essay showed how a single approach to interpreting the

discourse that frames actor’s actions in international politics is insufficient. Any

68 Oran R. Young, International Regimes: Problems of Concept Formation World Politics, Vol. 32, No. 3. (Apr., 1980), pp. 331-356. Here at Pg. 33 He listed the two components of every international regime as the

substantive component (rights and rules) and the procedural component (social choice, compliance).

69 Article 74 to 83 UNCLOS concerning the EEZ and the Continental shelf has been adhered to by the United States. Regarding the territorial sea, the United States extended its claim of territorial sea to 12

Nautical mile in accordance with Article 3 UNCLOS.

70 In dispute settlement under UNCLOS states can either use the Permanent Court of Arbitration (PCA) if

they have stipulated under ART 282 UNCLOS that the disputes be settled by the PCA. They can also go to

the International Tribunal of the Law of the Sea where prima facie jurisdiction is determined then the

Annex XV compulsory Tribunal looks at the case if both parties have still not reached an agreement.

71 John Baylis & Steve Smith. The Globalisation of World politics. 3rd edition. Pg. 363.

72 Steven Ratner; Anne-Marie Slaughter. Appraising the Methods of International Law: A Prospectus for Readers. The American Journal of International Law, Vol. 93, No. 2 (Apr., 1999), pp. 291-302. Pg. 294.

Vol. 4 [2007] Brussels Journal of International Studies 96

approach used in understanding policy-laden situations like the FON program has to be

applied with the understanding that a more nuanced approach can clarify a myriad of

issues. In the light of the tensions raised by the interpretation using the Neo-realist

approach, this essay then looked at the different contributors to the non-realist outcome

of cooperation. This approach highlighted that a broadening of the ordering principle

will ensure that no aspect in the relationship between the units is taken as a given. As

Krasner notes, the fact that most rational enquiry is contextual means that there is a

strong tendency to arrive at different outcomes using this approach. However, we have

also seen how starting from a given ensures a systemic analysis and the ability to test the

assumptions in the light of new issues. Therefore, the usefulness of looking at a

discourse in using this top-down approach cannot be overemphasised. Conversely, we

have seen in this essay a lacuna in terms of the lack of impersonal factors testable in any

context. Focusing on the international system whilst analysing the United States and the

UNCLOS was insufficient in explaining the reasons for actions taken by the states.

Moreover, starting from the fact that an international system is already determined and

that preferences are fixed is fraught with contradictions. This is because all contradictory

outcomes will be deemed to be a result of the given. This weakness of a rationalist

approach was noted and was widened to accommodate the role of norms. This essay

showed that broadening the discourse using methods of appraising International Law

theories could mitigate this determinism. This is because, as we have seen from the FON

program, International Politics is intertwined with International Legal issues. The

distinctive power of norms is not to be ignored in future discourses on International Law

and international politics as we have noted that norms constrain because it is perceived

as legal. Although not a definitive approach to future discourses, this approach can

definitely lead to an interpretative reflectivity. The balance achieved by a rationalist

enquiry with a policy-orientated framework will provide the discipline with a systemic

given, yet testable using the policy and actions of states.

Vol. 4 [2007] Brussels Journal of International Studies 97

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