The Need to Fight for International Law: Reflections from the Rohingya-Aceh Conflict Discourse

Image source: Antara Aceh/Rahmad

Few months ago, a substantial portion of Indonesians had unwittingly made themselves the cynosure of the international community when they flaunted to the latter their sense of indignation at the growing presence of Rohingya refugees in Aceh. The Rohingya, being barred by virtue of the genocidal acts of the Myanmar government from residing in their own ancestors' lands, were understandably in such a deprived state that they were in no position to offer any resistance to their Indonesian hosts’ indignation whatsoever. It was apparent that the rhetoric employed was animated by the spirit of bringing about the Rohingya’s expulsion from the Indonesian territory, with some on the extreme end even playing around with the idea that the Indonesian government should return them to Myanmar.

Felicitously, for those of us concerned with its trends and developments, international law, with all its sovereignty-moderating faculties, occupied a huge portion of this discourse. Indeed, some mention of Indonesia’s supposed obligations under international law was made and debated upon. The discourse was centered on the question of whether Indonesia was encumbered by any such obligations to take in and keep the Rohingyas in their territory. However, the supposed core of the international protection of refugees (at 15) was effectively vitiated by the mostly laymen interlocutors to the debate; there were no indications from that whole ruckus that the Indonesians had even attempted to argue within the framework of the wider international refugee law. The discourse seemed to stop at asking the question of whether Indonesia has ratified the 1951 Refugee Convention, which, to be fair, is indeed the most authoritative instrument in the framework. Its most salient norm, however, the custom of non-refoulement, which cannot be said to be any less important than the Convention, had disappointingly successfully evaded the arguments of the Indonesian interlocutors. There were indeed some who at least tried to temper the foul spirit in the discourse by trying to direct the expulsion of the Rohingya in other directions which are not sure to spell doom for them. Yet the fact that this segment of people still advocates for the removal of the Rohingya at all, seemingly without due regard to the risks that it may present for them, an obligation indirectly imposed by other international instruments to which Indonesia is a party, remains a cause for concern. The fact that many of them outright called for their refoulement is but a damning prognosis of an absence of respect for international law.

The International Lawyer’s Existential Anxiety and Their Corresponding Professional (and Traditional) Duties to Assuage It

This was but the latest addition to the long list of events which call into question the power of international law as the controlling norm of international relations. Positive auguries were on the horizon for the jus gentium in the 1990s – the “decade of international law”, which saw it and its enforcement institutions at their most potent  -and in the following years, which saw a general zeitgeist of optimism for its continuing potency flourishing (Roberts, at 14).  We observe today, however, that the relentless barrage of attacks to undermine its existence, which dates back to the days of Austin and his brand of sovereign-centered positivism, has persisted and made itself even more prominent, facilitated by the widespread skepticism -or downright ignorance- of its very existence by a majority of people. This negative momentum can be attributed to the far-right, parochial, and oftentimes xenophobic zeitgeist that has come to infect Euro-American politics, which resulted in a general sense of denunciation against most forms of internationalism. 

Such skepticism is also often buttressed by the general ignorance that the laymen usually have of international law’s benefits for their collective lives. In our case, for instance, there has been a popular call (although thankfully no action by the government was done to effectuate it) to oppose the continued presence of the UNHCR as the main agency observing the treatment by the Indonesian government of the refugees, who, at the same time, bears the general responsibility of their welfare. We observe that one of the main rhetorics fuelling the proliferation of such sentiment is the purported lack of benefits that the UNHRC has accrued to Indonesia for the span of their presence in the country. This, of course, is entirely unfounded, since the UNHCR had actually aided Indonesians in recovering from the rubbles of the tragic tsunami that befell it in 2004. To add further to the irony, these were the people of Aceh, the very people at the center of this story. The popular call in the United Kingdom a few years back to withdraw themselves from the European Convention on Human Rights system, similarly animated by an ignorance of the benefits it has accrued to them, also comes to mind. The irony which also presents itself in that has sufficiently been addressed elsewhere though. 

The international lawyerly profession has by no means been blind to all this song and dance of skepticism. An anxiety to prove international law’s relevance in international politics has deeply affected how its scholars conceive of its very nature. Indeed, Professors Brierly (at 67) and Lauterpacht (at 3–4) have each lamented the minuscule relevance of law in international relations during their respective eras, and the corresponding need to change that status quo. The combined efforts of multiple generations of international lawyers have culminated in the realization that international law is, as is the case with any other man-made law, contingent. 

Indeed, international law is historically – and essentially – a project started by that clique (or, as Oscar Schachter calls it, “an invisible college”) of several cosmopolitan-minded 19th-century lawyers determined to see to it that intercourse between states is conducted in an order governed by the rule of law instead of pure anarchy where the Hobbesian bellum omnium assumption; a reality where might makes right, would be the way of life in the society of nations (Koskenniemi, at 5). The instrument that resulted from that endeavor is thus a manifestation of a liberal stance in viewing international politics (Koskenniemi, at 5), which rejects such an assumption in favor of a system where the actions of each member of the society are subject to a series of legally binding norms.

It follows from that proposition that the continuation of the project of international law entails also the belief in the fundamental pillars of such liberal views of international relations. A further corollary of this is that those who “subscribe” to the international law project cannot at the same time be adherents of the pessimistic, anarchistic, and ultimately Hobbesian worldview that is commonly espoused by those scholars of the “realist” school of international relations theory, which regards international law as not much of a law at all (Scott, at 7). The continuing potency of international law is, therefore, something that is entirely contingent upon a healthy dose of belief in it and an active effort – be they political, academic, or otherwise – to inculcate and promulgate it into humanity’s collective consciousness.     

International Law: Eminent Once in A Bloody Moon, and How to Make it Not So 

Recourse to international law has always been a popular move amongst laymen interlocutors (such as journalists, television political pundits, and social media users) whenever revolting injustices, such as that suffered by the Rohingya in our (Indonesians) hands, on the international plane happens (Gamble & Dirling, at 211-212). This can also be seen in the multitude of news reports by international news outlets on Israel’s actions against the Palestinians in the ongoing war which almost invariably, in one way or another, assess Israel’s actions against international norms (here, here, and here, just to cite a few by the most popular outlets).           

The nature of such referencing practice, however, has thus far been merely “episodic and subordinate”. The sparse gaze afforded to it by that segment of the globe only once in a bloody moon; when a revolting amount of blood or worse has been spilled on the front pages of global news outlets, is but the supreme corroboration of this proposition. Such is the cause for the general conception among international lawyers that popular, and sometimes even legal media, do not do international law justice. Reflecting upon this, it is clear that a good chunk of the populace does not have a good understanding of international law, and as is clearly manifest from the plague of skepticism against it, that lack of understanding does not only exist on the dogmatic plane, but on the existential one as well. The impediment towards a proper understanding of it by the populace is thus twofold: ignorance of the law, and the belligerence against it. I therefore posit the two tasks that encumber every international lawyer, or anyone with an internationalist political inclination, for that matter, for the survival of the grand project of international law. 

Firstly, when passing on their knowledge to the next generation, they must go beyond merely dogmatic inculcation of international norms, and venture as well to the realm of its underpinnings; to the philosophical and political. Approach international law as it is: a normative science (Koskenniemi, at 183); a science which presents informations that are based on an assumed, usually unstated, policy preference (Lackey, at 38) . This approach would unlock the understanding that its very potency thus lies at the normative will of those who have a stake in its observance by its chief subjects, the states, for such a scenario can only reasonably be conceived of if enough pressure is mounted on those sovereigns from within and without (Dimitropoulos, at 67-68). Such an understanding of its nature is very important to be imparted upon the minds of law students, or other beneficiaries of the international lawyer's erudition, so that they may finally come to the realization that international law is something whose very existence itself they must actively defend in the intellectual realm so that its potency can manifest itself in the realm of reality.

Secondly, they must constantly remind humanity of the good that international law has brought upon their collective wellbeing. Just in the case of Indonesia, for example, international law has brought us untold benefits in terms of protecting our maritime sovereignty by endowing upon us the ability to be the masters of a very good chunk of our own waters, that is to say, those seas which link our islands into an archipelago (archipelagic waters). Another example, which would be of a higher degree of proximity to our subject of discussion, is the aforementioned UNHCR aid towards Indonesia in the Aceh Tsunami of 2004. If these are forgotten, then how would our interests as nations in this modern world best be protected vis-à-vis each other if not by coalescing to the grim Hobbesian assumption of bellum omnium contra omnes? 

From Quiver to Potency: Realising an International Law Relevant to the Masses

With the burgeoning rise of far-right politics on a global scale on the horizon, it is only logical to predict, although our hopes surely lie the opposite way, that the adversity being shown thus far against international law would take a turn for the worse, and thus also the apathy of a majority of the world’s populace against it. 

It is surely well-understood that now of all time is one of the most inopportune moments for such an important cog in the machinery of international politics to fail, with many discontented people falling prey to injustices that are perpetrated by states, be it another, such as that which has been and continues to be endured by the Palestinians, or their own, such as that which has been endured by the Rohingya. Not to mention the constant cries of systemic injustice and imbalance in the relations between states, surely the role of international law in acting as the pacifying and moderating norm for states’ power is as important as ever. The urgency to undertake a crusade against such an apathy, which contains international law’s normative relevance down to nothing more than a quivering impetus behind the actions undertaken by the international community and its members, has thus never seemed so palpable and felt as it is today. 

Reflecting upon the impossibility of arguing any given law’s binding nature within its internal framework (Spiermann, at 40), it would be an unfruitful and counterproductive use of the international lawyer's time and energy, vis-à-vis the mission to safeguard international law’s potency, to exclusively dwell within the realm of legal terminologies and concepts when they deal with the general populace, or even when addressing their pupils from behind the academic pulpit. Rather, what should constitute an indispensable undertaking for them in this project is to go out of their comfort zones and, following the outlines as elaborated upon above, to convince the populace to accept the internationalist’s worldview by convincing them of international law’s practical use in the daily and the mundane. 

To conclude, it is undoubtedly of the essence for international lawyers to get out of their professional silos, increase their engagement with the masses, and spread the word of international law with a missionary zeal. To be an international lawyer in this day and age is thus to be the man (or woman) in the arena, who willfully roll up their sleeves and fight for international law’s rightful place as a potent force of change in this world.

Muhammad Raihan Sjahputra is a final year law student at the Faculty of Law of Universitas Gadjah Mada (UGM), currently serving as an executive editor for the student-based law journal Juris Gentium Law Review (JGLR). His research interests cover topics such as International Human Rights Law; the Theory and History of International Law; the World Trade Organization (in particular its dispute settlement system); and critical legal scholarship, especially the Third World Approaches to International Law (TWAIL) movement.