STATUS OF INTERNATIONAL AGREEMENTS IN NATIONAL LAW

STATUS OF INTERNATIONAL AGREEMENTS

 IN NATIONAL LAW

by

(Ibrahim R. Professor of the Faculty of Law, Udayana University)

The national legal system has not yet firmly regulated the relationship between national law and international law, both theoretically and practically. How to implement international treaties into national law. Not yet developed the doctrine and practice of international treaties in national law. How, international agreements can be applied to a problem at hand. Is national law higher than international law or vice versa. Whether, Indonesia adheres to the flow of Monism or Dualism or Mixed in the relationship of national law with international law. Indonesian constitutional legal arrangements concerning the status of international treaties. The practice carried out so far, by the Indonesian state.

 Theory and practice are two things that are paired, if not uncommon, both are contradictory, but theory without practice is incomplete, and practice without theory will never be established. To examine the regulation, position and legal position of international treaties in national law, it can be seen from a variety of theories and bases, to foster reflection in practice, namely: The theory of the rule of law (material law states and Welfare Law States), Government Systems Theories (Parliamentary, Presidential and Semi-Presidential), Monism and Dualism, and Theory of Authority.

The association of national legal instruments with international law, uses the theory of monism and dualism. Monism puts national law and international law as part of a unity of the legal system in general, the two are interconnected, the figures Hans Kalsen (1881-1973) and Georges Scelle. Childbirth teachings: (1). Primat Nasional Hukum, states that national law is higher than international law. (2). Primat International Law, said that international law is higher than national law, adherents of monism are French, German and Dutch.

 Dualism places national law and international law as separate legal systems, each of which is independent and has no relationship with one another, the figures of this school are riepel and Snzilotti, adherents of dualism: the United States, Britain and Australia.

 Indonesia according to Mochtar Kusumaatmadja adheres to the flow of monism with international legal primat, the choice is a mistake. In my opinion, the Republic of Indonesia is obliged to embrace dualism, because it is influenced by the presidential government system, which requires that choice. If, choosing monism, then, the president can be impeased. The choice of monism or dualism is influenced by the system of government and the distribution of state power, which is adopted by a country.

 Khirarki International Law, according to J.G. Strake divides the material sources of international law, in five forms: Customs, Treaty, Court decisions and arbitration legal entities, The work of legal experts, Decisions of international organizations / institutions

 Sources of international law are based on Article 38 paragraph (1) of the Statute of the International Court of Justice, as follows: International Convantions; International Cost; General Principles of Low; Judicial Decisions and Teachings of the Most Highty Qualified Publicites. 

Sources of international law, used as a basis for making international treaties, and how to place sources of international law in the category of international treaties within the framework of the national legal hierarchy. The binding force of international law according to Corbett is as the will of the state that the reciprocity they hold, because it cannot be separated from their social nature, is regulated uniformly and as rationally as possible, through stages:

 In international law, the subject itself, constituting the formation of law (legislator) does not always have a similar procedure. As a result, the question of whether a regulation is really an international regulation must be answered on the basis of a phenomenon that is not so formal and structured, which in this case is given the term "manifestation of constitutive elements". Thus, international law must meet two requirements, namely a high degree of certainty and clarity, adequate attention to the relations between laws and social relations. 

State office, in every system of government, must be linked to the distribution of state power, to determine the authority and responsibilities of each institution, in accordance with the principles and nature of the distribution of power: Each power, must be accounted for; For each authority given, responsibility must be given to each recipient of power; Willingness to carry out responsibilities must be inclusive when received power; Each power is determined by the limits of authority and at the same time the burden of responsibility: Authority and burden of responsibility, determined by the shape and structure of the organization.

Theory of Authority and Burden of Responsibility, is determined by the way power is obtained, namely: first of all power is obtained through attributie (oorspronkelijk in the original sense), after which delegation (afgeleid) is carried out in two ways: delegatie and mandaat.

 Attributie authority is obtained from the power distribution system, which is adopted by a country, beyond that there is no attribute authority, the provisions of authority and the burden of responsibility are stipulated in the Constitution, except for countries that do not have a constitution, but are regulated in the Act. The establishment of power is stated in the constitution, which by Henc Van Maarseveen, that each Constitution as Reglement van Attributie 

Delegation is carried out by those who have the authority and within a certain time, the recipient acts on behalf of himself and is externally responsible. Meanwhile, Mandaat does not give rise to the authority of its owner, so that the burden of responsibility remains with the power of attorney. The recipient of attributie authority, depends on the pattern of power sharing system that carries the value of popular sovereignty and avoids absolutism.

 Placing international law in the Indonesian national legal system, in theory and practice is not easy, because the Indonesian constitutional system still contains problems in the grand unifled theory, so that the practice of state administration has never been able to complete and strengthen the existing constitutional structure, but instead further blur the state administration system. Indonesia. See the 1945 Constitution and the amendments to the 1945 Constitution, and their respective practices.

 The results of the study, how to put international agreements in the framework of national law. During this time it depends on the tastes of the ruling regime, not firmly providing principles as a basis for practice. The diversity of choices, to determine the relationship between national law and international law, should use the principle of dualism, because the Indonesian state government system is a presidential government system. In theory, it could be, using the Perpu format to ratify an international agreement, but it would be delematic for the government, if the Perpu was rejected by the DPR. In the practice of the enactment of the Perpu from the past until now, there is more political nature than legal certainty.

 The subject of international law is the state, in this case represented by the government (executive), then other institutions cannot enter into international treaties directly, must go through the door of the central government representing the country as a subject of international law. Every institution or agency that will enter into an international agreement must be seen in terms of legal subjects, whether ASEAN organizations are subject to international law or not, if yes, that means it is permissible, but because ASEAN as an organization is not a sovereign country, agreements must be made in the capacity to implement the ASEAN Charter. ((Ibrahim R. Professor of the Faculty of Law, Udayana University, Coordinator of the Law Science Study Program 2018-2022. (Ibrahim_r@unud.ac.id)).