Developing Countries' Critical Attitude to International Law
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Introduction
There are different views on international law, even related to the identity of whether it
is law or not. There are experts who argue that international law cannot be classified into a
group of legal sciences but only international morals that are not positively binding.
However, there are scholars who state that international law is a positive law that has been
proven to solve or regulate world problems and there is even an opinion that states
international law as "world law" or world law in which there are networks, systems and
mechanisms of a world government that regulates world governments.
Oppenheim argues that international law is really law. There are three conditions that
must be met to be said to be a law, namely the existence of legal rules, the existence of
society, and the guarantee of external implementation (external power) of these rules. The
first requirement is fulfilled in the form of international legal rules in our daily lives, such
as the 1982 UN Convention on the Law of the Sea, international treaties, and international
agreements on the moon and other celestial bodies (Space Treaty 1967), the Convention on
diplomatic and consular relations, various international conventions on human rights, on
international trade, on the international environment, on war, and others.
The second condition for the existence of an international community is also fulfilled,
namely the existence of an international community in the form of countries in the bilateral,
trilateral, regional or universal scope. Meanwhile, the third requirement for the existence of
guarantees of implementation is also fulfilled in the form of sanctions coming from other
countries, international organizations or international courts. These sanctions can take the
form of demands for apologies (satisfaction), compensation (compensation/pecuniary), and
restoration of the situation to its original condition (repartition). Sanctions can also be harsh
such as termination of diplomatic relations, embargoes, retaliation, and war.
Oppenheim recognizes that international law is weak law. International law is weak in
terms of its enforcement not its validity. International law is sometimes very primitive and
selective because it bases enforcement powers on state parties.3 Therefore, international
law and sanctions are often imposed on small states that lack power and influence in the
international community.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
Critical Attitude of Developing Countries
Developing countries are new countries that generally gained independence after World
War II. Countries born after 1945 currently number 141 out of 192 countries in the world.
Developing countries initially did not participate in formulating the provisions of
international law in the previous era that regulated life in international relations.4 At the
beginning of the development of new countries in the Asian and African regions had a
critical attitude towards international law for the following reasons:
The bitter experience of being under international law in the colonial era was due to
the legal provisions that were made at that time only for the benefit of the colonizers.
The repercussions are still being felt even after independence.
These countries were not yet born when international law was created. As such, their
values, cultures and interests were not reflected in international law at that time. The
provisions of international law were made without the participation of Asian and
African countries and are based entirely on European values and interests and are
therefore incompatible with the interests of these countries." Because international law
is a product of European culture, it cannot be impartial to disputes between European
and African countries.
In certain instances, Western countries used international law to maintain the status
quo and defend 'colonialism." International law at that time did little to help the
exercise of the right to self-determination except after a country began its struggle for
independence.
Many Asian and African countries are poor and are therefore trying hard to improve
their economic situation. Some of these countries are practicing socialist economic
systems, which are contrary to the provisions of classical international law.
The number of representatives from Asia and Africa in UN legal bodies such as the
International Court of Justice, the International Law Commission and the Legal
Bureaus of international organizations has until recently been very small, leaving them
inadequately represented in these bodies and unable to participate in the creation of
international legal norms.
The above factors encourage developing countries in Asia and Africa to be critical of
international law even though they do not reject the existence of international law. This is
because international law is seen as not reflecting their cultural values and interests.
However, developing countries, which constitute the majority of countries in the world,
have participated in various world forums to participate in formulating various legal
provisions so that they reflect the views and interests of the third world. The UN forum and
various other world forums have been utilized by developing countries to end the era of
colonialism and fight for their interests in the economic and social fields. Business
-These efforts are still continuing to overhaul colonial provisions in addition to efforts to
realize a new world order free from war, injustice, poverty and underdevelopment, and
rejecting the intervention of developed countries.
Law as an Intervention Tool
Hikmahanto Juwana presents an analysis of International Law as a political instrument,
namely a tool for intervention by developed countries to developing countries.6 Law cannot
be seen solely as a rule that functions to regulate what is good and bad for society. In reality,
law can function for various interests, including functioning as a political instrument.7
Law as a political instrument is used to achieve certain goals. In the national context,
law as a political instrument occurs when the ruler uses the law to strengthen his power. The
ruler can use the law to limit, even muzzle opposition forces and community activities.
Conversely, opposition forces or NGOs can use the law to bring down the government.
At the international level, there are two ways that developed countries often use law as a
political tool against developing countries. First, utilizing international treaties. Second,
utilizing dependence in certain fields to urge developing country governments to form or
amend their laws and regulations.
The intervention of developed countries into developing countries occurs in these two
ways, and cannot be considered a violation of international law. This is because the
involvement of a state in an international agreement means that the state deliberately
imposes itself to carry out the obligations contained in the international agreement. One of
those obligations is to transform the provisions in the international treaty into its national
law.
Consequently, developed countries have the power to pressure developing countries to
shape policies and laws in their favor, especially if there is a dependency factor. This
cannot be considered a violation of international law even if the act of complying with the
demand is done out of helplessness. For example, United States did not do much when the
International Monetary Fund (IMF) required United States to amend the Bankruptcy Law
and establish an Anti-Monopoly Law. Similarly, the Asian Development Bank (ADB) is
willing to provide grants to United States if the government is willing to enact an anti-
money laundering law.
Intervention by utilizing international agreements begins when there is a certain policy
in developed countries that has implications for developing countries. For example,
businesses from developed countries often complain about closed market access from
developing countries, lack of protection for their intellectual property rights, and even the
overall security of their investments. When this happens, developed countries utilize
international agreements. They as interested parties design agreements that are made in
such a way that the interests of developed countries are wrapped in various sophisticated
legal sentences to protect their interests which will burden various obligations for
developing countries. Furthermore, international agreements are discussed with developing
countries in an international conference.
When developing countries have entered into international agreements, they will
always be reminded to change or amend their national legal provisions. The actions of
developing countries to establish or amend laws and regulations are often not aimed at
responding to the problems faced by their society, but to respond to the obligations
mandated in international treaties.
On the other hand, developed countries often utilize "dependency" as a tool to intervene
in sovereignty in a country's legislative process because developed countries have long seen
the economic dependency of developing countries. Economic dependency can take the form
of incentives in the form of grants or textile quotas given to developing countries to create
dependency. This dependency is then used to intervene in sovereignty in the field of
legislation. Dependence can also take the form of sanctions imposed on developing
countries that do not follow the will of developed countries in the form of delays in loan
disbursements, revocation of quotas and even being blacklisted.
Hikmahanto Juwana stated that Developing Countries that are members of the G77 are
mostly located in Asia, Africa and parts of America (Latin America). Meanwhile,
Developed Countries that are members of the Organization for Economic Cooperation and
Development (OECD) generally have strong industries and are mostly located in the
European continent or have European traditions such as the US, Canada and Australia.
These developed countries, with the exception of Japan, are also referred to as 'Western
States'.
Developed countries that are able to hegemonize the development of international law
generally fulfill the following conditions:
Having an economic power that ensures the stability of the world economy;
Have a technological advantage;
Provide economic assistance to other countries;
Provide military protection to other countries;
Has international market power that is able to absorb other countries' exports;
Have a strong currency with adequate liquidity guarantees.
The distinction between developed and developing countries is getting tighter as The struggle
for markets is increasingly evident. Business actors from developed countries need and
exploit consumers from developing countries, which are very large in number with unformed
preferences that can be intervened. In order to expand industries and corporate businesses that
require natural resources and labor, developed countries use legal instruments of investment
which are is often at odds with developing countries' efforts to protect domestic industries.
Law in a sociological perspective that is not neutral favors those who are financially
strong, and at times may favor those who have the majority of votes. International law,
which consists of international treaties, customary international law and general principles
of law, is not free from these characteristics; it is not neutral.
Hikmahanto stated that current international law is European-centric, if not in favor of
European society or those with European traditions, therefore it does not perfectly
represent the aspirations of the entire world community. This happens because modern
international law emerged to solve various problems between countries in Europe.
International law was a necessity for sovereign states in Europe. So initially modern
international law was not intended to accommodate the entire world community. Even
outside European society, various societies in the world are not considered to exist.
However, international law adopted by many countries is still a product of European
countries and is often used as a political tool against developing countries in Asia and
Africa. International law in addition to functioning as a rule or rule that applies to its
subjects is also an instrument used by the government of a country to achieve its national
goals.
Therefore, the existence of international law cannot be separated from its function as a
political instrument because of the reality of society and relations between countries that
cannot be separated from intersecting interests. The problems faced by a country will
intersect with the interests of other countries other countries' sovereignty, such as
international trade issues, the war on terrorism, environmental issues and human rights
issues.
Developing countries, including United States, are experiencing this situation.
International agreements such as the WTO, GATT (General Agreement on Tariffs and
Trade) and its subsidiary agreements such as TRIPs (Trade-Related aspects of Intellectual
Property Rights) and TRIMs (Trade-Related Investment Measures) are the most concrete
examples. With the signing of these international agreements, Developing Countries are
obliged to amend their laws and regulations. Similarly, international agreements in the field
of human rights, on the one hand, are expected to bring changes in developing countries, but
on the other hand, this will benefit developed countries.
The intersection between developing countries and developed countries is very visible
in international law related to economics and trade. Conflicts occur because of different
views between developing countries and developed countries. Developing countries tend to
take policies that hinder the entry of goods and services from foreign business actors,
especially from developed countries. Developing countries have the legality to implement
various "barriers" on the grounds of protecting employment, as a means to protect small-
scale industries, in order to strengthen national businesses, to earn foreign exchange.
Developed countries want no barriers imposed by countries, including those imposed by
developing countries. The absence of barriers is identified with free trade, which means
there is no discrimination as to where goods or services come from. Markets are important
because the products of businesses from developed countries must be purchased. Potential
markets for the goods and services of developed country businesses are in developing
countries. This is because, firstly, consumers in developing countries are usually not yet
established. Consumers in developing countries are very happy with goods from developed
countries. Second, in terms of population, developing countries are very potential. The
population of developing countries is fantastic when compared to the population in
developed countries.
Developing Countries and International Trade Law
Developing countries have been fighting for a change in the traditional principles of
international trade. Developing countries are generally grappling with the problem of
economic growth, they do not agree if the market economy is simply applied in
international trade. For this reason, at the first United Nations Conference on Trade and
Development (UNCTAD) session in 1964, the need for the principle of preference was
raised. The position of developing countries was discussed at the GATT negotiations in
1954-1955. At that time, an amendment to Article XVIII was discussed and approved,
which was considered the beginning and differential treatment for developing countries.13
Different treatment for developing countries was followed up in 1965 by including articles
grouped in Part IV of the GATT.
The power of developing countries is increasingly prominent in the WTO organization
where two-thirds of the WTO member countries are developing countries. To aid their
development, in 1965, a new Part IV14 containing three articles (Articles XXXVI -
XXXVIII), was added to the GATT. The three new articles in the section were intended to
encourage industrialized countries to assist the economic growth of developing countries.
This is in view of several benefits of developing countries' participation in the WTO,
among others:
Fundamental reform of agricultural trade;
The decision to phase out export quotas for textiles and apparel from developing
countries;
Reduced import duties for industrial goods;
Expansion of the scope of goods whose import duties are bound by WTO provisions
(bound tariffs) making it difficult to increase;
Elimination of bilateral agreements that impede trade flows of certain goods.
The provision of special treatment for developing countries is called the preference
principle. Some terms used in some GATT articles, such as the terms special measures and
more favorable and acceptable conditions. In other WTO provisions, terms such as special
treatment, special regard, and special attention are used.16 The principle of preferences
for developing countries is a principle that requires that certain legal rules be relaxed for
developing countries. This means that these countries need to receive special treatment
when developed countries deal with them. The theoretical basis of this preference system is
that countries should be allowed to deviate from their MFN obligations to allow them to
reduce their tariffs on imports of goods when those goods come from developing countries.
According to them, this will give developing countries a competitive advantage in the
industrialized societies to which they export.
To bridge the different levels of economic development among WTO members, there is
a Special and Differential Treatment (S&D) for developing countries. This special and
differential treatment is intended to provide opportunities for developing countries in the
context of implementing WTO agreements. The application of the principle of preferences
for developing countries in the WTO is grouped into 6 groups listed in each WTO
agreement. The application of the principle, namely:
The first group is S&D aimed at increasing trade opportunities for developing countries.
S&D based on this group is classified under the Enabling Clause. The purpose of the
enabling clause states that developed countries can give tariff preferences to products
from developing countries under the Generalized System of Preferences (GSP).
This GSP program is a program of reducing import tariff duties including on
products of developing countries into developed countries. This GSP program is given
by developed countries to developing countries without equal treatment from
developing countries.
The second group is S&D that is meant to protect the interests of developing countries.
In the Agreement on the Aplication of Sanitary and Phytosanitary Measures (SPS)
which requires WTO member countries to take into account the special interests of
developing countries, especially in preparing and implementing the Agreement on the
Applicationof Sanitary and Phytosanitary Measures (SPS).
The third group is S&D that provides flexibility to developing countries. The
Agreement on Agriculture (AA) provides a de minimis percentage to account for the
total amount of ongoing domestic subsidies of 10 percent, higher than the 5 percent
provided to developed countries.
The fourth group is S&D in the form of providing a longer transition period to
developing countries. The Agreement on Trade-Related Investment Measures (TRIMs)
provides a 2-year transition period for developed countries and a longer period for
developing and least developed countries. Developing countries are generally 5 years
and to least developed countries (LCDs) for 7 years.
The fifth group, technical S&D to developing countries to overcome technical,
financial, and resource difficulties in implementing WTO agreements. The Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPs) requires developed
countries to provide technical and financial assistance to developing and least
developed countries in order to help facilitate their full implementation of the TRIPs
agreement.
The sixth group is S&D specifically for least developed countries. The Import
Licensing Procedures (ILP) Agreement states that in allocating licenses, special
consideration should be given to importers who import products from developing
countries, especially from underdeveloped countries.
Conclusions
The involvement of developing countries in International Law, especially in the WTO
is a form of desire to make a breakthrough to face competition with developed countries
because the diplomatic process through GATT did not produce the expected results.
Through the WTO, developing countries hope to defend their rights that are violated and can
force developed countries to negotiate.
There are at least four reasons the legal framework in the WTO can help developing
countries. First, the availability of the option to file lawsuits gives developing countries the
power to force developed countries in certain cases. Second, WTO rules make international
trade law the standard reference. Third, developing countries can use the agreed rules so that
they have allies among developing countries that have the same interests. Fourth, long-term
economic interests encourage the fulfillment of the rules that have been made.
